by Greg Marquis
The position of the Criminal Lawyers’ Association was that the Oland appeal offered a unique opportunity for the senior court to offer guidance to provincial trial and appeal courts on the “public interest” aspect of bail rulings. And in this case a provincial appeal court had recently ruled that there had been a “miscarriage of justice.” The association’s brief explained that the right to appeal was central to the administration of justice. Trial courts, the brief continued, “commit errors,” further support for the necessity of a more liberal approach to bail when appeals were being sought. The defence lawyers' organization called on the Supreme Court to provide “one definable standard” for bail criteria across Canada, one that would adopt a more nuanced interpretation of the “public interest test” and not be guided by “public hostility or clammer” against a convicted offender seeking an appeal.38 Association counsel Lacy (who had sat in on the appeal in Fredericton) believed that the Canadian public understood that mistakes were made in the justice system and that in most instances bail pending an appeal should be almost automatic. Cases involving more serious crimes and longer sentences should require greater scrutiny for bail. The Criminal Lawyers’ Association was concerned about any ruling that would move Canada away from its relatively liberal bail regime.39
The factum of the respondent (the attorney general of New Brunswick) began with a blunt statement: “Canadians expect that a person convicted of a serious crime and sentenced to a lengthy jail term will immediately begin serving that sentence and will remain in jail.” Kathryn Gregory and Derek Weaver were defending the approach of the courts in their province, where it appeared that, until Dennis Oland in 2016, no one convicted of second-degree murder had ever applied to be released on bail. They argued that Justice’s Richard’s decision (which the larger panel of the NBCA had endorsed) was a correct application of the law. In terms of the bigger picture, the New Brunswick position was that reviewing judges should use their discretion “to consider the grounds of appeal in the balancing exercise as the circumstances of each case allow.” And the attorney general of Oland’s province supported a “stringent standard” of review in order to safeguard the public interest.40 In court, Gregory argued that an acceptable framework for bail already existed based on legal precedents that allowed a reviewing justice to make a decision on a case-by-case basis.41
41The lawyers representing the three provinces granted intervenor status offered a variety of arguments on the bail issue, usually endorsing the state of appeal law in their jurisdictions. Ontario, for example, supported a slightly less onerous standard of review for bail for convicted individuals based on its appeal court’s Farinacci decision, but its factum reminded the SCC that a convicted appellant has lost the presumption of innocence.42 A key issue for the justices and the teams of lawyers present was the meaning of “public confidence” as a determining factor in bail decisions. The more conservative argument was that the release of persons pending appeal who had committed serious crimes and had been given lengthy sentences would undermine public confidence. A more rights-based argument was that the public expects that some appeals of convictions will succeed and that in most cases bail should be a right.
British Columbia’s position was that in the case of a convicted murderer, the seriousness of the crime dictated that an appeal of bail required “very strong grounds of appeal” of the original conviction. Public confidence was described as “a cornerstone of our system of justice.”43 The lawyer acting on behalf of Alberta’s attorney general also expressed concern that a more liberal test for post-conviction release on bail would undermine public confidence in the justice system. Alberta’s view was that a bail applicant should be required to prove that the grounds of appeal of their conviction were strong, not merely “arguable.” Alberta’s attorney general believed that any other interpretation was not supported by the relevant case law.44 Gold characterized the positions of British Columbia and Alberta as a virtual prohibition of release on bail of convicted murderers seeking appeal, something that Parliament had never legislated.
As 2016 drew to a close, the Supreme Court had not released its decision. The focus during the appeal on public confidence was somewhat ironic given that opinion polls have long suggested that Canada’s courts are already too lenient with accused offenders and convicted criminals. These views may be irrational, but they are a political reality that was exploited by the previous federal government.45 In the long run, whether Dennis Oland would be acquitted in a new trial or convicted and forced to serve out the rest of his term in penitentiary would be simply be a footnote in Canada’s legal history. The real contribution of this case to jurisprudence would be when the nation’s top court established a new test for bail for offenders convicted of serious crimes who are appealing their sentences.
Oland as a Free Man
The release of Dennis by the Court of Appeal brought joy, relief, and a sense of vindication to his family and friends. His children, who had been living through this stressful situation for years, were now attending high school or university. Given the divisive nature of the case in the community and the family’s widespread connections, many were relieved that Dennis was a relatively free man (he was still on bail); others expressed dismay that the Crown would be proceeding with a second trial. People who had never met Oland somehow felt that he was incapable of committing such a violent act. Yet, as the narrator on the American podcast series Serial reminds us, “being a nice guy is not exculpatory evidence.”46 Others were confirmed in their cynical belief that money buys justice and still others were convinced, in defiance of the SJPF, the Crown, the trial jury, and in some respects, the provincial appeal court, that the investigation of Richard’s murder had been too flawed to support a conviction.
Dennis appears to have kept a relatively low profile while awaiting a second trial, but he has not been a recluse. He was sighted carrying out normal parental chores such as shopping at Costco in Saint John and at Sobeys and Kuinshoeve Meats in Rothesay (near where his father is buried) and clearing snow out of his driveway with a tractor. He was spotted in his wife’s boutique, close to where his father had been murdered, during the Uptown Sparkles event in December 2016, socializing in the Saint John core in February 2017, and even sampling the fare at the Irving Big Stop, a highway diner. He, no doubt, continued his work on the history of the Oland family. After his Harrison Ford “Fugitive” Facebook post of November 2013, shortly before his arrest, Dennis was inactive on social media. In December 2016, he posted a single photo of himself as boy on a bike with training wheels, with associated likes and comments from friends and relatives. The photo was taken outside Far End, his parents’ house on Almon Lane. Like many in Rothesay, the Oland home on Gondola Point Road was decorated at Christmas with lights. Having suffered the shock of Dennis’s conviction and incarceration a few days before Christmas a year earlier, family members no doubt were enjoying their time together and trying not to think about the impending trial. Because he had been forced to turn in his passport, Oland, in contrast to the period after his father’s murder, was prohibited from enjoying trips outside of Canada.
The media had little new to say about Dennis and the rest of the Oland family in the weeks following the quashing of the conviction. One exception was an attempt at investigative journalism not by a New Brunswick media outlet but by Halifax’s Chronicle Herald. The paper’s regular journalists, represented by the Halifax Typographical Union, had been on strike since January 2016, so the two-part article on the Oland investigation and trial was written by a replacement reporter. Part one began with a highly inaccurate headline about the case “falling apart,” which appeared oblivious to the findings of the court of appeal. As noted in the previous chapter, evidence in court as to which hand the killer used in attacking Richard Oland had been inconclusive. This supposedly new look at the case included comments from an American forensic psychologist who explained that in a “primal attack,” an assailant uses their “do
minant hand.” The psychologist opined that the nature of the wounds on the victim’s head suggested the likelihood of a right-handed attacker. The story cited video evidence and comments from Oland’s “lawyer” and Oland’s friend Val Streeter suggesting that Dennis was left-handed. (During his 2011 police interview, he wrote his statement with his left hand.) Patrick Laturnus, one of two expert witnesses enlisted by the defence in 2015, was also interviewed for the piece, which was a bit odd since the matter was still before the courts. The strike-breaking reporter also followed up on a revelation first made in the hardcover copy of this book: that there were other potential witnesses in the vicinity of 52 Canterbury on the evening of July 6, 2011, who heard possibly suspicious noises, specifically two men having a loud argument. The article identified Cheryl Johnson, a lawyer with the firm Gorman Nason, located in close proximity to the murder scene. Johnson was not interested in doing an interview and a SJPF spokesperson denied that investigators had taken a statement from her, although the alleged incident was mentioned by the Oland defence during the 2014 preliminary inquiry. Interviewed for the story, Bill Teed made the following comment on what Johnson may have heard: “I can’t explain why we didn’t use it.”47
Being married to one of New Brunswick’s most famous convicted murderers did not seem to have hurt business for Lisa Oland. During her husband’s incarceration, Exchange on Germain continued to sell mid-to-high-end designer brands such as Hermès and Louis Vuitton. The store’s Facebook page had 2,500 likes by late 2016. The other business with which she is associated, Handworks Gallery, continued to operate and, in December 2016, sponsored the launch of a children’s book. By late October 2016, Lisa found herself married to the province’s most famous murder suspect. Her Facebook friends indicate the prominent social connections of the family: the current mayor of Saint John, a former deputy mayor, a former common councillor and MLA, and individuals involved with the arts and culture and business worlds. This does not suggest social ostracism.
* * *
1The website Unsolved Murders/ Missing Persons Canada as of mid-February 2017 had more than 7,000 posts on the Oland case which had been viewed more than 240,000 times. See: http://www.unsolvedcanada.ca/.
2CP, “Supreme Court of Canada to Hear Dennis Oland appeal for bail,” June 30, 2016.
3Bobbi-Jean MacKinnon, “Jurors should have to provide reasons for verdict, Toronto lawyer argues,” CBC News New Brunswick, Jan 16, 2017; Interview with David Lutz, Jan. 30, 2017.
4Interview with David Lutz, Jan. 30, 2017.
5CBC New Brunswick News, “Judge gives 2 men lengthy prison sentences in J-Tornado drug case,” Dec. 9, 2016.
6Interview with Michael Boudreau, Feb. 17, 2017.
7Robin Doolittle, “Unfounded: Why police dismiss 1 in 5 sexual assault claims as baseless,” Globe and Mail, Feb. 3, 2017 (http://www.theglobeandmail.com/news/investigations/unfounded-sexual-assault-canada-main/article33891309/). The story explains that the figures for Saint John may be partly attributable to coding or classification errors.
8(CP), “No charges against Deputy Chief McCloskey in Dennis Oland case,” Global News New Brunswick, Oct. 4, 2016, http://globalnews.ca/news/2981417/no-charges-against-deputy-chief-glen-mccloskey-in-dennis-oland-case/.
9Interview with Michael Boudreau, Feb. 17, 2017.
10CBC New Big Picture, Inside Canada’s Prisons (documentary, 2001); Interview with Bernard Galarneau, Feb. 10, 2017.
11Interview with Bernard Galarneau, Feb. 10, 2017.
12Jennifer Taplin, “Man gets 5 Years at Tearful Shooting Trial,” Halifax Metro News, Oct. 28, 2011.
13Nathaniel Janowitz, “The Bizarre, Real-Life Story of Nova Scotia’s Real-Life Trailer Park Boys,” Vice, Nov. 17, 2015.
14Julian Sher and William Marsden, The Road to Hell: How the Biker Gangs Are Conquering Canada (New York: Alfred A. Knopf, 2003), 162-68.
15Bobbi-Jean MacKinnon, “2 inmates accused of assaulting Dennis Oland in prison seek legal aid: Oland, who spent 10 months in prison, played no role in charges being laid, family lawyer says,” CBC New Brunswick News, Feb. 9, 2017.
16Michael Weinwrath, Behind the Walls: Inmates and Correctional Officers on the State of Canadian Prisons (Vancouver: University of British Columbia Press, 2016), 25.
17Interview with Bernard Galarneau, Feb. 10, 2017.
18In the Court of Appeal of New Brunswick Between: Dennis James Oland, Appellant and Her Majesty the Queen, Respondent, Appellant’s Submission on Behalf Dennis James Oland, July 29, 2016. This brief, as the Crown later pointed out, listed a number of “facts” which were debatable.
19Email communication, Caroline LaFontaine to author, Oct. 18, 2016.
20Dennis James Walsh, Appellant and Her Majesty the Queen, Respondent, Oland v. R., 2016, NBCA 15.
21NBCA, Appellant’s Submission on Behalf Dennis James Oland, 67-79.
22NBCA, Oland appeal, Oct. 19, 2016.
23NBCA, Oland appeal, Oct. 18, 2016.
24In the Court of Appeal of New Brunswick Between: Dennis James Oland, Appellant and Her Majesty the Queen, Respondent’s Submission, Sept. 20, 2016, 69.
25NBCA, Oland appeal, Oct. 19, 2016.
26R v. White, 1998 2 SCR 72.
27NBCA, Appellant’s Submission on Behalf Dennis James Oland, 38-42.
28NBCA, Respondent’s Submission, 13.
29Kevin Bissett, “Dennis Oland to be tried second time for murder in 2011 death of wealthy New Brunswick father,” National Post, Oct. 24, 2016.
30Interview with Nicole O’Byrne, Feb. 28, 2017. David Tanasichuk was convicted in 2005 of murdering his wife in Miramichi. In 2007, the NBCA granted him a new trial; one of the grounds was the failure of the trial judge to properly instruct the jury on the issue of post-offence conduct. The prosecutor in the first trial, ironically, who also opposed the appeal and the helped to successfully prosecute Tanasichuk again in 2009, was Jack Walsh.
31NBCA, Respondent’s Submission, 84.
32Blue Line News Week, Vol. 21, No. 41, Oct. 28, 2016, p. 10; Communication, Steve Roberge, Executive Director, N.B. Police Commission, to author, March 7, 2017. The policy of the N.B. Police Commission is to release a report carried out under the Police Act only in the case of an arbitration or a criminal prosecution.
33Craig Babstock, “Moncton teen jailed for life for ‘monstrous acts’: judge,” Telegraph Journal, Jan. 12, 2017, A1; “Two families destroyed, one literally forever,” Telegraph Journal, Jan. 12, 2017, A5.
34Kevin Bissett, “‘Very happy’ Dennis Oland in Ottawa as top court hears ground breaking bail appeal,” Globe and Mail, Oct. 30, 2016.
35The full webcast of the Oct. 31, 2016, hearing can be viewed on the website of the Supreme Court of Canada: http://www.scc-csc.ca/home-accueil/index-eng.aspx.
36In the Supreme Court of Canada (On Appeal from the Court of Appeal of New Brunswick) Between: Dennis James Oland (Appellant) -and-Her Majesty the Queen (Respondent), Appellant’s Factum. Aug. 26, 2016, paragraph 27.
37SCC, Oland appeal, Oct. 31, 2016.
38SCC, Oland appeal, Criminal Lawyers’ Association Factum, Oct. 14, 2016, paragraphs 8 and 21.
39SCC, Oland appeal. Oct. 31, 2016.
40SCC, Oland appeal, Respondent’s Factum, Oct. 11, 2016, paragraphs 1, 56, and 52.
41SCC, Oland appeal. Oct. 31, 2016.
42SCC, Oland appeal, Attorney General of Ontario Factum, Oct. 13, 2016; SCC, Oland appeal, Oct. 31, 2016.
43SCC, Oland appeal, Attorney General of British Columbia Factum, Oct. 13, 2016, paragraph 1.