Ex-deputy Saint John police chief seeks judicial review of commission investigation

The former deputy chief of the Saint John Police Force is seeking a judicial review of the New Brunswick Police Commission's investigation of allegations against him in connection with Dennis Oland's murder trial.

In documents filed with the Court of Queen's Bench, Glen McCloskey alleges the commission acted in "bad faith" and that he was "denied natural justice due to a lack of procedural fairness."

The commission's appointed investigator, Barry MacKnight, concluded in December 2016 that McCloskey  made false statements at Oland's first trial in 2015 and to Halifax police officers, who ultimately cleared McCloskey of criminal wrongdoing.

McCloskey, now retired, wants the court to quash MacKnight's report and declare it "did not meet the reasonableness or the correctness standard."

Although McCloskey missed the deadline to apply for a judicial review, his new lawyer, Moncton-based Brian Murphy, has requested an extension. The motion is scheduled to be heard June 5.

Murphy contends there are "compelling reasons and/or extraordinary circumstances" to warrant the extension.

Among them, McCloskey was "only able to fully appreciate the totality of his claim against the New Brunswick Police Commission upon the March 23, 2018 disclosure of documents evidencing bad faith."

The disclosure consisted of hundreds of pages related to the Police Act investigation of McCloskey, which he hadn't seen before. The commission had provided the file to Oland's defence lawyers prior to his ongoing retrial for second-degree murder in the 2011 death of his father, multimillionaire Richard Oland, as part of the defence's request for third-party documents.

Included in the documents was an internal email from the commission's then-executive director Steve Roberge to his colleague Lynn Chaplin on Nov. 21, 2016, which stated the appointed investigator intended to sustain the allegations against McCloskey.

'Negative bias' alleged

"The date of this email … is significant as MacKnight had not conducted a single interview at this point and had clearly entered his investigation with negative bias against me," McCloskey states in a sworn affidavit filed with the court.

MacKnight's expense sheets shows his interviews did not begin until Nov. 22.

Roberge left the commission earlier this year. Jill Whalen, acting executive director of the independent civilian oversight body, declined an interview Friday.

"As this matter is currently before the courts and will also be considered during the independent third-party review, it would be inappropriate for us to comment on the McCloskey matter at this time," Whalen said in an email.

In December, after the provincial police union held a news conference criticizing the commission's handling of McCloskey's case, the commission asked the public safety minister to appoint an independent third party to look into the commission's "processes and procedures."

Department officials could not immediately be reached for comment on where that review stands.

2 trips into bloody crime scene

The allegations against McCloskey stemmed from testimony at Oland's first trial that suggested McCloskey had tried to keep his presence at the victim's bloody office unknown to the court.

Retired Staff Sgt. Mike King testified that in 2014, either before or during Oland's preliminary inquiry, McCloskey told him he didn't "have to" tell anyone he had entered the crime scene.

McCloskey testified he had never asked anybody to lie under oath. He alleged it was King who lied because he was angry about being passed over for a promotion.

McCloskey told the court he had entered the crime scene twice the day after the homicide even though he had no active role in the investigation — once to "observe the body" and then again out of "curiosity."

The nearly 30-year veteran of the force admitted he went farther during his second trip into the crime scene, with Const. Greg Oram, than the head of forensics allowed the first time, and wore no protective gear.

King and McCloskey both gave similar testimony at Oland's retrial, which started on Nov. 21.

Was to face arbitration hearing

MacKnight's report, which was included in commission's disclosure to Oland's defence and became public through pre-trial proceedings, concluded McCloskey and King did have the conversation King described about the senior officer's appearance at the crime scene.

He found McCloskey committed five breaches of the Police Act: two counts of discreditable conduct, and one count each of deceitful behaviour, neglect of duty, and being party to a breach of the professional code of conduct.

McCloskey was expected to face a settlement conference, but he alleges the commission refused to provide the settlement conference, scheduling an arbitration hearing instead in October 2018.

He retired last April 30 and the matter was dropped. The police watchdog only has the authority to discipline active officers.

Complaints to Justice, Public Safety

McCloskey subsequently wrote letters of complaint to the minister of Justice and the minister of Public Safety, but both "denied that they had any ability to remedy his situation," according to the court documents.

He also filed a complaint with the integrity commissioner about the commission's "egregious conduct." In his Dec. 13 report, Alexandre Deschênes concluded the commission breached McCloskey's privacy on two instances by disclosing his personal information to Oland's defence and the Crown on July 4 and 12, 2017.

"I have suffered a great deal from the start of this entire situation," McCloskey's affidavit states.

"I was forced into early retirement from a career that I loved, and my name and reputation have been tarnished."

If his request for an extension is granted, McCloskey intends to seek a production order for copies of the commission's policies or guidelines regarding transparency, operational procedures, disclosure and conflict of interest, as well as any letters, emails or tests related to the case.

In addition, his lawyer wants to be able to orally examine several commission officials on the fullness and fairness of the McCloskey investigation.

Oland retrial resumes May 9

Richard Oland, 69 was found dead in a pool of blood in his office at 52 Canterbury St. on the morning of July 7, 2011. He had suffered 45 sharp- and blunt-force injuries to his head, neck and hands.​

His son, Dennis, 51, who is the last known person to have seen him alive during a visit to his office the night before, was found guilty in December 2015 of second-degree murder.

The New Brunswick Court of Appeal overturned his conviction 10 months later, citing an error in the trial judge's instructions to the jury.

Oland is being retried by judge alone. The retrial is scheduled to resume on May 9 with closing arguments. Justice Terrence Morrison has said he doubts he'll have a verdict before June 7.