Crown seeks to keep Oland homicide documents private

A New Brunswick judge will not grant an extension to keep search warrants connected to the Richard Oland homicide investigation sealed until he hears new evidence.

Provincial Court Chief Judge R. Leslie Jackson said on Wednesday the Crown was requesting a new sealing order and not the monitoring of a previous sealing order.

So he said the court must have some information on which to act.

The Crown prosecutor will be allowed to present evidence, including testimony from a Saint John Police officer behind closed doors.

However, other lawyers involved in the case will be allowed to listen to the testimony.

John Henheffer, a Crown prosecutor, raised concerns that if other lawyers are allowed to listen to the evidence, the information could leak out.

The judge said he understood Henheffer's concern and that the lawyers can deal with the issue as it arises.

Earlier this month, during a brief court appearance, Jackson agreed to a temporary extension on a sealing order that was set to expire on June 15.

But Jackson said he felt it was “necessary” to have a “full and complete” hearing on the merits of keeping the documents sealed for an additional six months.

CBC News and the Saint John-based Telegraph-Journal are arguing to have the information contained in the search warrants made public.

The courts have ruled that warrants are normally public and should only be sealed by a judge in "extraordinary" cases, says lawyer David Coles, who is representing the media outlets.

He contends the search warrants, the information used to obtain them, and information about the items seized, should be made public to reassure citizens that the investigation is proper, that it's proceeding and that the rights of the people who were searched were protected.

Oland, a prominent Saint John businessman, was found dead in his uptown office on July 7.

Saint John Police confirmed the 69-year-old's death was a homicide and said he likely knew his killer. But almost a year later, no arrests have been made and few details about the investigation have been released.

Before the latest ruling, Henheffer had planned to call one of the investigating officers to testify as to why the documents should remain sealed.

But Henheffer has advised the court he hopes to have Const. Stephen Davidson testify behind closed doors, in front of only the judge.

Henheffer told the court on Wednesday morning that his request was "appropriate in these circumstances."

Henheffer said he was not simply seeking a "rubber stamp" from the court. He acknowledged he would have to establish why the documents should remain sealed.

Coles argued against the judge hearing evidence in private.

He said the New Brunswick Rules of Court allow for witnesses to be not only examined, but also cross-examined.

"Our courts do not simply accept unchallenged what a witness says," he said.

If the judge did agree to an in camera hearing, Coles suggested a "compromise."

He offered to enter an undertaking that he would not divulge any information he heard with his clients or anyone else.

Prosecutors have previously argued the documents contain “hallmark” forensic evidence that only the person or persons responsible for Oland’s death would know and releasing them could jeopardize the investigation.

Police searched the Rothesay home of Oland's son, Dennis Oland on July 14, a nearby wooded area by the Bill McGuire Community Centre on July 15, and a sailboat co-owned by Dennis Oland's wife, Lisa Oland, moored at the Royal Kennebeccasis Yacht Club in Saint John on July 21.

Details about other search warrants and a production order executed in the case are now under a publication ban.

The documents were sealed in July by provincial court Judge William McCarroll.

In December, CBC News and the Telegraph-Journal sought to have the documents released, but judge Jackson ordered they should remain sealed.

Jackson said he was satisfied releasing the documents could compromise the investigation, as well as the privacy of numerous persons because they contain intimate details about their lives.

He did, however, set a time limit of six months, which expired on June 15.

Based on case law, search warrants may only be sealed when the information they contain would:

Compromise the identity of a confidential informant.

Compromise the nature and extent of an ongoing investigation.

Endanger a person engaged in intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used.

Prejudice the interests of an innocent person.