Oland defence abandons attempt to get cell tower list entered as exhibit at retrial

Dennis Oland's defence team has abandoned an attempt to get some new cellphone-related information entered as an exhibit at his murder retrial, at least for now.

Crown prosecutor Derek Weaver had challenged the veracity of the document presented Tuesday, which suggested a cell tower in Rothesay was a so-called neighbour site to the uptown Saint John cell tower on July 6, 2011 — the day Richard Oland was killed.

It's potentially significant because the final text message received by the victim's missing iPhone before it fell silent was transmitted at 6:44 p.m. by a cell tower in Rothesay, the Saint John courtroom has heard.

The Crown alleges that's proof the multimillionaire was dead by then and his iPhone was with the accused as he drove home to Rothesay after leaving his father's Saint John office just minutes earlier, becoming the last known person to have seen him alive.

The defence, however, contends the iPhone could have still been in Saint John despite connecting with the tower in Rothesay. The defence theory is especially salient if the Rothesay tower was in fact a designated neighbour to the uptown tower, designed to provide backup when either of the uptown's two sectors are out of service or over capacity.

On Wednesday, Weaver told the court he had contacted Rogers Communications in an attempt to verify the defence document — a purported list of neighbour sites, as of July 6, 2011. Weaver said the company's legal counsel told him the list "would not necessarily have been a neighbour list for 2011."

As Justice Terrence Morrison was reading a printout of Weaver's email exchange with Rogers, lead defence lawyer Alan Gold stood to address the court.

"It might be that as a result of further information, we may not seek to tender [the list] for the truth of its contents anymore," he said.

Morrison said as it stands, he has "no idea" whether the Rothesay tower was a neighbour of the uptown Saint John ones or not.

If the defence seeks to enter the list into evidence at a later point, he'll hear further arguments at that time, he said.

The retrial had to adjourn Wednesday at noon in the midst of testimony from bloodstain pattern expert RCMP Sgt. Brian Wentzell because a storm and deteriorating road conditions forced the closure of the Saint John Law Courts building.

Proceedings are scheduled to resume Thursday at 9 a.m., 30 minutes earlier than usual, to try to make up for some lost time.

Dennis Oland, 50, is being retried for second-degree murder in the bludgeoning death of his father.

A jury found him guilty in 2015, but the New Brunswick Court of Appeal overturned the conviction in 2016 and ordered a new trial, citing an error in the trial judge's instructions to the jury.

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Oland stopped by to visit his father at his investment firm office at 52 Canterbury St., on July 6, 2011, around 5:35 p.m. He told police he left around 6:30 p.m., stopping at the Renforth wharf on his way home to see if his children were there.

The wharf is about two kilometres from the cell tower that transmitted the final message received by the victim's cellphone — a text from Diana Sedlacek, the woman with whom he was having an affair.

The body of the 69-year-old was found in the office the next morning with 45 sharp- and blunt-force injuries to his head, neck and hands. His iPhone was the only item that went missing from the crime scene. It has never been recovered.

On Tuesday, cellphone network expert Joseph Sadoun testified the iPhone was "most likely" near the Rothesay cell tower that transmitted the last text message.

The chances of the cellphone being in Saint John and communicating with the Rothesay tower, which is about 14 kilometres away, were "very small," he said.

Under redirect by the Crown on Wednesday, Sadon reiterated that cellphones are designed to connect with the signal that will provide the best quality service.

As a cellphone moves away from a tower, the signal strength from that site decreases, he said. As a cellphone approaches the next tower, the signal from that site increases.

"From everything you've seen Mr. Sadoun, do you see any indication that [the Rothesay tower] in your opinion would provide a better signal at 52 Canterbury St. than other cellular sites present in that area?" asked Weaver.

"No," replied Sadoun.

Earlier in the day, while the victim was at work, his iPhone connected with the tower near his office, on the roof of the Brunswick Square office tower at 1 Germain St., the court has heard.

And while text messages can be transmitted within fractions of sections and require less signal strength than phone calls, a phone would still choose the strongest signal available, said Sadoun.

Weaver asked Sadoun about the test calls lead investigator Const. Stephen Davidson had made from various locations in the greater Saint John area in March 2012 using an iPhone like the victim's to see which towers would transmit the calls.

None of the 96 calls made at locations west of the government garage on Highway 1 connected with the Rothesay tower, confirmed Sadoun.

So while the Rothesay tower might be strong enough to send a signal as far as Saint John, that indicates the signals from the two sectors of the uptown tower on Germain Street and the tower on the city's east side at 292 Westmorland Rd. are stronger.

Although 15 of the 20 test calls made at Renforth wharf did not connect with the nearby Rothesay tower as anticipated but rather the tower on Mount Champlain about 20 kilometres away, Weaver noted five of the calls did not go through.

Sadoun said those calls were dropped because "there wasn't a sufficiently strong signal to maintain a call at that location."

That's consistent with the colour-coded map he had produced to illustrate which cell towers provide the best quality signals to which areas of Saint John and Rothesay, he said. It showed no dominant signal at that location, but rather a lot of competing signals of "poor quality."