Criminal Law

Oland mistrial and proceeding judge alone is 'correct' decision: Hicks

Canadian PressTHE CANADIAN PRESS

A mistrial has been declared in the retrial of Dennis Oland for the second-degree murder of his father, with the jury dismissed over police ``improprieties'' and the case to be heard by judge alone.

The stunning development comes just over a month after jury selection was completed for the complex trial, which was expected to take at least four months.

Justice Terrence Morrison of the New Brunswick Court of Queen's Bench announced the mistrial Tuesday at what was expected to be the start of evidence presentation in Oland's second trial for the 2011 bludgeoning death of his father, Richard Oland.

The trial will now continue Wednesday in front of Morrison alone.

Morrison said there were ``improprieties'' in the jury selection process of which the Crown was unaware.

``It cannot be helped,'' Morrison told the 16 jurors as he thanked them for their service. ``Your services are no longer required.''

In a statement after the mistrial, defence lawyer Alan Gold said Saint John police overstepped limits on jury investigations.

Gold said the Supreme Court of Canada has made it clear that jurors' privacy ``disallowed any police data base searches into the private lives of jurors in order to find out any and all contacts they may have had with the police.''

But Gold said the errors by Saint John police didn't stop there, and asked that a New Brunswick Police Commission inquiry into the force's conduct in the Oland murder investigation, which had been put on hold pending the jury trial, now resume.

``As the defence contended at the first trial, Dennis Oland was charged because of the mistakes, confusion, even bungling actions of the Saint John police who too quickly focused on him and failed to find and follow the clues to the real killer or killers,'' he said.

``The New Brunswick Police Commission has many issues to examine about how this case was investigated and how the police decided Dennis was the perpetrator of the crime, within hours of the murder being discovered.''

Oland will now have to be re-arraigned Wednesday and enter his plea. Then there will be opening arguments and, finally, the retrial will get underway.

Toronto criminal lawyer Christopher HIcks tells AdvocateDaily.com that the declaration of a mistrial was "not only the correct decision,it was mandatory in the circumstances, given the governing case law from the Supreme Court of Canada." Read HIcks in Globe and Mail

Hicks, partner with Hicks Adams LLP, says that the "Supreme Court strongly disapproved of the accumulation and use of such data in the selection of juries."

Hicks explains that the main reason for the mistrial is that "a flawed jury selection strikes at the heart of the fairness of a trial, and any reasonable observer would necessarily conclude that even the appearance of fairness had been compromised beyond repair."

Hicks says that a "fair trial is a right that any citizen accused of a crime is entitled to under the Charter. The Supreme Court has stressed that the first and foremost duty of a trial judge is to conduct a fair trial. The test is that a reasonable observer, aware of Charter values but a not a lawyer, must be persuaded of the appearance of fairness in the conduct of a trial. An improperly selected jury crushes these values and compels the declaration of a mistrial."

As for whether it is better or worse to have a judge alone trial on a murder case, Hicks says the Criminal Code makes a jury trial virtually mandatory where the crime alleged is murder because the "criminal justice system has long believed that the most serious crime should be tried by member of the community acting as a jury."

But, Hicks says the details of the allegations against Oland "are well suited to a trial by a judge sitting alone. This trial, like the first, is not driven by the testimony of ordinary people who will be called by the prosecution to testify, and whose credibility and reliability must be assessed by the trier of fact —the jury.

"In my view, the major focus of the of this trial will be on the conduct of the investigation by the SJPF, and this is well suited to assessment by the arbiter of law — the judge," says Hicks.

He adds that a judge sitting alone on such matters can "absolutely" reach a fair verdict.

"Not all trials are jury trials," says Hicks. "By training and experience, judges are accustomed to sitting alone and making the ultimate decision of guilty or not guilty. In this role, the judge sitting alone is both the arbiter of the law and the trier of fact, and this is familiar territory for any trial judge in our criminal justice system."

Hicks says this has happened before pointing to R v Spence, in which a judge declared a mistrial and subsequently continued the trial sitting as a judge alone.

"The Ontario Court of Appeal reviewed the trial, but it's decision neither approved nor disapproved of the trial judge's decision to continue the trial sitting alone after declaring a mistrial and dismissing the jury."

Hicks adds the trial judge in the Oland case is "placing a significant burden on himself. This is a notorious allegation of patricide that has gained both national and international attention.

"The ultimate verdict, whether guilty or not guilty, could foreseeably draw condemnation and severe criticism that not all judges can gracefully and stoically endure," says Hicks.

"As well, there is the spectre of appellate tribunals, both the New Brunswick Court of Appeal and the Supreme Court, revising the conduct of the trial in its entirety, and not just the singular decision to declare a mistrial, dismiss the jury and continue the trial as a judge alone."

Hicks predicts that "this trial will be lengthy and controversial and could get ugly in a number of ways."

Dennis Oland, his wife Lisa and mother Connie were all in court for the news, the latest twist in a case that has seen many.

Richard Oland's body was discovered on July 7, 2011, in his uptown Saint John office.

The 69-year-old businessman and former executive of Moosehead Breweries Ltd. suffered 45 blunt and sharp force blows to his head, neck and hands, although no weapon was ever found.

Dennis Oland, his only son, was charged with second-degree murder in 2013 and convicted in 2015 after a trial that heard from nearly 50 witnesses and revealed a case built on what the judge hearing the case called largely circumstantial evidence.

After his 2015 conviction, Dennis Oland sobbed uncontrollably. Family members cried and hugged each other, with many appearing to be stunned by the verdict, which came after about 30 hours of deliberations.

But, the jury verdict in that case was set aside on appeal in 2016 and a new trial ordered.

During the first trial, the Crown focused on possible issues of motive, including Dennis Oland's financial difficulties and the knowledge his father was having an affair.

But in his own testimony, Dennis Oland downplayed his finances as a recurring issue in the life of a financial adviser and said he never raised them with his father. He also said the two never discussed his father's affair.

The defence pointed to video that showed Dennis Oland and his wife shopping later on the evening of July 6, 2011, when people working below Richard Oland's office say they believe they heard the sounds of the murder.

The key piece of evidence for the Crown was a brown jacket worn by Dennis Oland that had a number of small blood stains and also DNA that matched the profile of Richard Oland. However, none of the expert witnesses could say how long the blood had been on the jacket or how it got there.

But, there were some inconsistencies in his story.

Dennis Oland had told police that he visited his father's office twice on July 6, 2011, and that he had been wearing a navy blazer. Testimony from witnesses and surveillance camera video showed him wearing a brown jacket, and it was eventually learned from Dennis Oland himself that he went back to the office a third time to retrieve a logbook for his uncle.

The Crown pointed to those inconsistencies when cross-examining Dennis Oland, who said at the time of his statement to police he was nervous and in shock.

The family has been steadfast that they believe Dennis Oland is innocent.

``We continue to believe our nephew and cousin Dennis is innocent and we will support him and his family members through the course of whatever legal actions will unfold,'' Derek Oland, the executive chairman of Moosehead, said in a 2015 statement.

— with files from AdvocateDaily.com

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