Truth and Honour Page 16
The judge went in the other direction on DNA evidence, ruling that a jury could conclude that the DNA typing profiles were a match and a reasonable inference could be made that the DNA on the jacket was derived from blood. Records seized on September 10, 2012, from VIP Dry Cleaners confirmed that Lisa Oland was the customer under whose name clothing had been dropped off on July 8, 2011. Jin Hee Choi, co-owner of the operation, testified that Lisa paid for the items on Saturday, July 9, 2011, and that Dennis had waited for her in the car. The judge described the defence argument that the jacket was cleaned because of the upcoming funeral of Richard Oland to be “pure speculation” because there was no actual evidence behind the claim. LeBlanc clearly had problems with the arguments of the Crown about the significance of the dry-cleaning evidence, but his job was only to determine what a jury could infer. And on that basis, he stated that a jury could conclude that the purpose of having the jacket dry cleaned was to “destroy evidence.” On the issue of the amount of blood spatter that could be expected on an attacker, LeBlanc noted that the important testimony of Sgt. Wentzell was “unchallenged.” The judge opined that the lack of blood evidence on the logbook was not overly important and “there is no evidence it remained there during the entirety of Dennis Oland’s visit.”40 Yet, the issue of blood also favoured the defence. Wentzell had admitted that if Dennis was the perpetrator, then one would expect to have found more blood evidence. LeBlanc also pointed out as “meaningful” the fact that a dress shirt Dennis claimed to have worn on his visit to his father’s office, and which he appeared to be wearing in video-surveillance footage, contained no blood or DNA of the victim. Also, the crime scene had no evidence of a cleanup.41
In terms of the timeline for the evening of July 6, 2011, the judge described the evidence of Ainsworth and Shaw as a “serious setback” for the prosecution. Under cross-examination, Shaw stated that he thought he had heard the thumps from the Far End Corporation office at 8 P.M. Under re-examination by the Crown, he fixed the time as 7:30–8:00 P.M. Ainsworth testified that the pounding had been heard between 6 and 8 P.M. Despite strong cross-examination by Miller based on the fact that this differed from his initial police statement, Ainsworth refused to budge. The defence had contended that when Dennis was seen on security-camera footage on Canterbury Street at 6:12 P.M., he was not heading back to his father’s office but walking to the drugstore in Brunswick Square. Changing his mind, he stopped at his car and prepared to go home. A video displayed in court had portrayed a man putting something in the rear hatch of a car, taking off his jacket, and then driving south along Canterbury. Yet at 6:21 P.M. the same silver vehicle appeared on Canterbury again, having driven up King Street past the decorative clock. The Crown contended that Oland had not in fact gone home, but returned to the area of his father’s office.42
On December 12, 2014, Judge LeBlanc delivered his decision. The document, which remained under a publication ban until February 2016, cited a number of cases and took seventy-five minutes to read out in court. He described the prosecution as based “entirely on circumstantial evidence,” yet this did not alter the test for committal. His role was not to assess the credibility of the Crown’s evidence, but to examine each element of the prosecution’s case. For example, it would be up to the “trier of fact” to assess the credibility of Const. Davidson who had testified that the back door had been locked when he examined it the day after the murder.43 In his opinion, the evidence entered during the inquiry could allow a jury to conclude that the attacker had intended to kill the victim. LeBlanc found that motive behind the murder had not been “positively proven.” Financial information gleaned from the testimony of Maureen Adamson and Robert McFadden failed to convince LeBlanc that the Crown had established a financial motive. The son’s only direct benefit would be his fee for being made an executor and trustee for the victim’s estate. The Crown’s theory was that a financially desperate Dennis had gone to his father’s office seeking further assistance.44
The Crown had argued that the 6:44 P.M. text that allegedly reached the victim’s iPhone via the cellphone tower at 2524 Rothesay Road was incriminating, yet LeBlanc was less convinced. As noted above, he cited the cellphone “roaming error” evidence of July 9, 2011, as significant, as a jury could conclude that the missing cellphone was outside of Canada (when Dennis Oland was still in Rothesay). LeBlanc did note the significance of evidence that apparent computer activity ceased after Dennis arrived at the office and that the victim, who had backed up his iPhone as of 4:44 P.M. did not use it later in the day.45
The judge’s views on the crucial July 7, 2011, interview of Dennis Oland were not flattering to the SJPF. According to investigators, Oland become a suspect because of inconsistencies in recalling where he parked and walked and because of his body language during the interview. As discussed in an earlier chapter, Davidson and especially Copeland had been pushing for a confession that evening. LeBlanc described their conclusion as “totally unjustified and indeed irrational” and was puzzled as to how an “unsubstantiated” hunch could be reasonable grounds for suspicion. In fact, Oland had been allowed to leave, as there were no grounds to detain him. Possibly speaking as a former prosecutor, LeBlanc was surprised that the police had failed to ask the suspect to voluntarily surrender the shoes and pants he admitted to having worn the previous day.46
Given the lack of other trace evidence, the Hugo Boss jacket was hugely important in LeBlanc’s decision. Either Dennis Oland had lied about which jacket he had worn on July 6, 2011, or had been honestly mistaken. In the case of a preliminary inquiry, when more than one inference can be drawn from evidence, LeBlanc explained, the judge must favour the one supporting the prosecution. In other words, a jury could determine that Dennis had lied to cover up evidence. On the other hand, the handling of the jacket after it had been seized was far from perfect. Still, the DNA evidence from a number of locations on the jacket seemed compelling. An RCMP expert had testified, based on the legally accepted test of random-match probability, that DNA samples taken from cuttings from all six locations matched those of the victim. The sample from location AB (outside right sleeve) had a weaker DNA profile so it had been sent to a private lab, Maxxam Analytics, for retesting. The lab concluded that the victim “could not be excluded as the source of this DNA profile.”47
The judge reminded counsel that absence of clear motive, according to case law, was not enough to prevent a court from committing a case to trial. Precedent also dictated that in cases based on circumstantial evidence, a preliminary-inquiry judge should not allow inferences and theories from the defence to “usurp the function of the jury.” LeBlanc concluded that “certain unassailable facts,” in combination with the rest of evidence, could allow a jury to find Dennis guilty of murdering his father. In other words: not mere speculation, but a conclusion based on reasonable inference. He focused on six key points in making his determination: (1) Dennis was the last person to see his father alive and was with him for some period of time; (2) the DNA typing profiles from the victim discovered on Dennis’s jacket, which were reasonably inferred to come from Richard’s blood, was “very probative evidence”; (3) a jury could conclude that the son lied to the police about which jacket he had worn the previous day; (4) a jury could also conclude that the dry cleaning had been an attempt to destroy forensic evidence; (5) the manner of death and the state of the crime scene could indicate a crime of passion; (6) the termination of all email, cellphone, phone, and computer activity by the victim after his son arrived at his office was potentially incriminating. On this basis, Judge LeBlanc committed Dennis Oland to stand trial for second-degree murder.48
As defence lawyer Gary Miller explained, the threshold for sending a case of this nature to trial was low. Yet he claimed to be surprised by the outcome: “I mean, I’ve been doing this 37 years and this is the first time I’ve ever contested a murder committal at a preliminary inquiry.” Oland’s family issued the following statement: “The questio
n of who is really responsible for Dick’s death haunts us. We despair at the time that has been lost and worry the perpetrator of this terrible crime may now never be found and brought to justice.” One media report claimed that the family was “devastated” by the judge’s decision, but the author was in the courtroom when the decision was read and detected little outward reaction to the news.49
It had been three years and four months since Richard Oland was butchered on the floor of his office. As the end of 2014 approached, Dennis Oland was still a free man, able to spend the Christmas holidays with his family and socialize with friends. His financial affairs were apparently in order and he and his wife, Lisa, were owners of a new business. In the fall of 2014, as the preliminary inquiry was drawing to a close, there was another development in the uptown area involving the Oland family. In October, Handworks Gallery, a venue for New Brunswick artists and craftspeople, suddenly closed. Shortly after this, the media reported that Lisa Oland, described as “a veteran retailer,” and Leslie Oland, the wife of Dennis’s cousin Andrew, head of Moosehead Breweries and an experienced operations manager, were re-opening the gallery as the new owners. In another example of the complex connections between the Olands and the community, Lisa became vice-president of the New Brunswick Crafts Council. Since 2011, Dennis had travelled outside of Canada, purchased a new yacht, and enjoyed boating and socializing in the summers on the Kennebecasis River with family and friends. Where would he be on December 25, 2015?
* * *
1April Cunningham, “Cops tying up ‘loose ends’ in Oland case,” Telegraph-Journal, Jan. 9, 2013, C1; Statistics Canada, Adult criminal court statistics in Canada, 2011/2012, http://www.statcan.gc.ca/pub/85-002-x/2013001/article/11804-eng.htm.
2John Grisham, An Innocent Man: Murder and Injustice in a Small Town, New York: Doubleday, 2010. Kindle Edition.
3Val Streeter to Justice John Walsh, Jan. 8, 2016.
4R. v. Dennis James Oland, 2015-11-24, Oland Laboratory Test Results.
5Testimony of David MacDonald, Nov. 2, 2015.
6Stephen Kimber, “Spilled secrets: The Richard Oland murder mystery.” Atlantic Business, Dec. 19, 2013.
7R. v. Dennis James Oland, Preliminary inquiry, Sept. 3, 2014.
8Testimony of Shawn Coughlan, Oct. 28, 2015.
9Testimony of Stephen Davidson, Oct. 23, 2015.
10R. v. Dennis James Oland, 2015-11-24 Oland Laboratory Test Results.
11Paul McLaughlin, “Photos offer glimpse into office where Richard Oland was murdered,” Global News, April 26, 2013, http://globalnews.ca/news/513633/photos-offer-glimpse-into-office-where-richard-oland-was-murdered/.
12CP, “Son named as suspect in murder of New Brunswick businessman Richard Oland: court documents,” National Post, May 17, 2013; Bobbi-Jean MacKinnon, “New evidence in Richard Oland murder, documents reveal,” CBC News New Brunswick, July 26, 2013.
13Bobbi-Jean MacKinnon, “‘Enough is enough,’ Oland lawyers argue,” CBC News New Brunswick, Sept. 7, 2013.
14Kevin Bissett, “Richard Oland, son would get into ‘big fights,’ document says,” CTV Atlantic, Sept. 6, 2013.
15Bobbi-Jean MacKinnon, “Documents shed new light on the Oland murder investigation,” CBC News New Brunswick, Sept, 6, 2013.
16Chris Morris, “Inside the Oland investigation,” Telegraph-Journal, Sept. 14, 2013, A1
17Saint John Police Force vs. The Canadian Broadcasting Corporation et. al, NBPC, Oct. 25, 2013.
18MacKinnon, “Documents shed new light.”
19Chris Morris, “Complex case revealed in Oland documents,” Telegraph-Journal, Oct. 28, 2013, A1.
20The series was inspired by the real story of Dr. Sam Sheppard, an Ohio resident who was freed from prison through a second trial twelve years after being convicted of murdering his wife.
21Jane Taber, “Dennis Oland charged with second-degree murder in father’s death,” Globe and Mail, Nov. 13, 2013.
22Bruce Bartlett, “Murder suspect sent back to jail,” Telegraph-Journal, April 15, 2014, C1.
23April Cunningham, “Police chief remained confident during investigation,” Telegraph-Journal, Nov. 14, 2013, B4. Parts of the news conference can be viewed online.
24Taber, “Dennis Oland charged.”
25Interview with Nicole O’Byrne, March 9, 2016.
26Taber, “Dennis Oland charged.”
27Ibid.; Chris Morris, “Olands burdened by dark turn in family saga,” Daily Gleaner, Nov. 16, 2013, A9.
28Taber, “Dennis Oland charged.”
29April Cunningham, “Police chief remained confident during investigation.”
30Jennifer Pritchard, “Oland hearing adjourned until year later,” Telegraph-Journal, Nov. 30, 2013, C1.
31Interview with Nicole O’Byrne, March 9, 2016.
32Interview with David Lutz, March 8, 2016.
33R. v. Dennis James Oland, proceedings, Nov. 2, 2015.
34Chris Morris, “Oland preliminary hearing completes second day,” Telegraph-Journal, May 15, 2014, C1.
35These observations are based on the author’s attendance at most of the preliminary inquiry.
36R. v. Dennis James Oland, Province of New Brunswick Saint John provincial Court, Her Majesty the Queen v. Dennis Oland, Ruling following a preliminary inquiry by the Honourable Ronald LeBlanc, judge of the Provincial Court, in Saint John, New Brunswick, Dec. 14, 2014.
37Julia Wright, “Blood, Beer, and the Maritime Rumour Mill: The Dennis Oland Murder Trial,” Vice Canada, Nov. 30, 2015.
38Ruling following a preliminary inquiry by the Honourable Ronald LeBlanc.
39Ibid.
40Ibid.
41Ibid.
42Ibid.
43Ibid.
44Ibid.
45Ibid.
46Ibid.
47Ibid.
48Ibid.
49CP, “Dennis Oland to stand trial on second-degree murder charge in father’s death,” National Post, Dec. 12, 2014.
Chapter 6
A Defence Counsel’s Dream?
March 1–October 1, 2015
The Oland trial was perhaps the most closely watched and extensively reported court contest in New Brunswick history. In part, this was due to the popularity of live tweeting from the courtroom, which had only been permitted in New Brunswick as of 2012. It would involve the largest jury call in the province’s history, sit for sixty-five days over a period of nearly four months, and hear from dozens of witnesses, including nine expert witnesses. But before this, both the Crown and the defence requested a series of voir dire hearings to rule on the admissibility of evidence. The details of the hearings, and the judge’s rulings, were under a publication ban until after the trial. The Crown wanted to enter new evidence relating to cellphones. The defence sought rulings on the legality of search warrants and their execution. As many legal observers had predicted, the defence attempted to have Dennis Oland’s brown jacket and associated forensic evidence excluded from the trial, knowing full well, as the Crown admitted, that without this single piece of evidence the prosecution would collapse. The judge assigned to the trial was John (Jack) Walsh, who in the early 1990s had been one of the prosecutors of multiple murderer Allan Legere. Although not the senior Crown during that prosecution, he held the important job of presenting a new type of evidence, DNA, to the jury. Walsh had sparred with Legere’s defence over the suggestion that there was “inbreeding” in the Miramichi region. Despite Walsh’s down-home expressions, he is considered by colleagues to possess one
the sharpest legal minds in the province.1
At the end of April 2015, Chief Reid retired after thirty-seven years with the SJPF. He continued to defend the handling of the Oland case, noting that every police service was criticized at some point, and described the prosecutors in the case as “very competent people.” He admitted that lessons had been learned from the investigation and would be corrected in the future.2 For several months (including during the first two months of the Oland trial) the acting chief was Deputy Chief Glen McCloskey. During this period, and for the duration of the trial and beyond, the department (and especially McCloskey) would be the subject of considerable controversy, all related to the Oland matter.
In the community, aside from the usual rumour mills and social media posts, things were fairly quiet as the media could not even report on the topics of the pretrial hearings that took place in the spring and summer of 2015. As would be revealed at trial, the investigation continued into that year, with Const. Coughlan being tasked with obtaining a cast-off DNA sample from Derek Oland, brother of the victim. In late May 2015, a lab report, based on the newer and more sensitive Identifier Plus process, confirmed that the DNA on locations AA, AC, and AO on the brown Hugo Boss jacket matched that of the victim. A few weeks later, the last report in the series provided a DNA profile of Derek, for comparative purposes, based on the cast-off sample.3