Dennis Oland's defence lawyers want the Supreme Court of Canada to deem his second-degree murder conviction an "unreasonable verdict" and acquit him based on five grounds of "public importance," including the "earwitness" evidence of a man who was working below Richard Oland's office the night he was bludgeoned to death.
Anthony Shaw's testimony about hearing "thumping" noises coming from the Saint John office at a time Dennis Oland was captured on video surveillance about a 15-minute drive away in Rothesay provided "powerful support for [Oland's] claim of innocence" in his father's death, the defence argues in documents filed with the country's highest court in Ottawa.
"In the context of the Crown's 'factually complicated and convoluted' circumstantial case, with 'no smoking gun' and 'gaps in the evidential puzzle,' Mr. Shaw's evidence should have produced a not guilty verdict," they state in their bid for an acquittal instead of a new trial.
Other grounds filed in their cross-appeal to the Crown's application seeking a review of Oland's 2015 conviction being overturned by New Brunswick's highest court last fall include arguments about:
- Whether police had the authority to forensically test Oland's blood-stained brown sports jacket;
- How the trial judge and appeal court should have treated Oland's so-called after-the-fact conduct, specifically his statement to police about which jacket he wore during his visit to his father's office;
- The reliability of evidence extracted from the victim's computers and iPhone call detail records;
- Whether the Crown should have been required to cross-examine Oland about the alleged "speculative" motive.
The defence is not seeking any costs.
The application comes just days after the Supreme Court ruled Oland, 49, was wrongly denied bail by New Brunswick's top court while he was waiting to appeal his murder conviction in the 2011 death of his multimillionaire father.
Dennis Oland was the last person to see Richard Oland alive, during a meeting in the elder Oland's Saint John office. The body of 69-year-old Richard Oland was found badly beaten in a pool of blood in the office the next morning.
A jury found Dennis Oland guilty of second-degree murder in December 2015 and he was sentenced to life in prison with no chance of parole for at least 10 years.
Oland was released from custody on Oct. 25, 2016, after the New Brunswick Court of Appeal overturned his conviction, citing an error in the trial judge's instructions to the jury, and ordered a new trial.
Declaring an acquittal, the appeal court said at the time, would be "wholly inappropriate" since the jury's guilty verdict was not unreasonable or unsupported by the evidence.
The Crown filed an application to the Supreme Court in January, seeking leave to appeal the conviction being overturned and to have the guilty verdict reinstated. The defence filed its response and cross-appeal on March 23 and it was made public on Tuesday.
The Supreme Court is not obligated to hear the matter.
There is no set timeline for the Supreme Court to decide whether it will hear the case, but Oland's lead defence lawyer Alan Gold anticipates a decision in June.
Should jacket have been thrown out?
The forensic testing of Oland's jacket, which found four "miniscule specks of blood" and DNA matching the victim's profile, raises an issue of public importance, according to the defence.
Saint John police obtained a search warrant to seize the brown Hugo Boss sports jacket from Oland's closet a week after the murder and subsequently obtained a general warrant to test the jacket. But that warrant expired before the testing was done.
The defence had sought during a pre-trial hearing to have the jacket excluded as evidence at trial, but the trial judge deemed it admissible, saying the search warrant implicitly authorized the forensic testing.
"This issue merits this Honourable Court's consideration in light of the continuing post-seizure privacy interests that are increasingly recognized in the case law and the intrusiveness of post-seizure forensic searches now available due to advances in forensic technology," the defence submits in the latest court documents.
Wrong jacket innocent mistake?
Similarly, the defence wants the Supreme Court to rule on how the lower court handled Oland's after-the-fact conduct.
They maintain Oland's incorrect statement to police about what jacket he was wearing the night his father was killed was an innocent mistake.
They point out Oland told police he was wearing a navy blazer after they told him they would be reviewing security camera footage and could verify his story. He also knew his father's secretary had seen what he was wearing when he arrived at the office.
And while the jacket was taken to be dry cleaned the day after police told Oland he was a suspect in his father's murder, the defence argues it was his wife who dropped it off and there was no effort to hide the fact it had been dry cleaned, with the tag still attached to the collar when it was seized.
Independent evidence of 'concocted' lie
The appeal court overturned Oland's conviction based on the trial judge's instructions to the jury regarding Oland's statement to police about what he had been wearing.
The judge, the appeal court ruled, should have instructed the jurors that even if they thought Oland lied, they should not consider that in weighing his guilt or innocence unless they had independent evidence it was a lie concocted to conceal his involvement in his father's murder.
The appeal court went on to remark it believed there was independent evidence it was a concocted lie, but did not specify. "Moreover, there was evidence from which the jury could infer [Oland] was involved in the delivery of the [blood-stained brown sports] jacket to the dry cleaners," the appeal court stated.
Oland's lawyers submit the question of what can constitute "independent evidence" of concoction also warrants consideration by the Supreme Court.
The victim's computer showed no registered activity after Oland left the office, and the final text message received by the victim's missing iPhone pinged off a cell tower in Rothesay around the same time Oland admitted to being at a nearby wharf — two evidentiary points of "of clear national importance," according to the defence.
The lawyers cite the increasing presence of computer-generated evidence in courtrooms across Canada, which has been classified as everything from a form of "hearsay evidence" to "real evidence."
There is also a lack of guidance on how to assess the reliability of such evidence, given the possibility of human error at the "programming, input or operation state, or machine error due to degradation and environmental factors," they argue.
"This case presents an opportunity for this Honourable Court to intervene and provide clarity on the treatment of such evidence."
Accused deserves opportunity to rebut
In addition, the defence wants the court to weigh in on the issue of the cross-examination of an accused.
During the trial, the Crown's alleged motive was that Oland flew into a rage "after a refusal of financial assistance from his father, coupled perhaps with the issue of his father's mistress," the defence states, calling it "speculative" and "inconsistent" with evidence.
"When an accused elects to testify, Crown theories based on inculpatory inferences should be clearly asserted and put to the accused in cross-examination," the lawyers argue.
"Vigorous cross-examination will only enhance the credibility of the accused who withstands it, while an accused that flounders will have their lack of credibility exposed to the trier of fact."
Scheduling of Oland's new trial has been postponed until the Supreme Court decides whether it will hear the case.
If a new trial proceeds, it's not expected to be held until 2018.