New Brunswick prosecutors say the Supreme Court of Canada should dismiss four of the five issues raised by Dennis Oland's defence lawyers in their application aimed at getting him acquitted instead of retried for second-degree murder in the 2011 death of his father, multimillionaire Richard Oland.
Prosecutors contend only one of the issues raised by the defence is of "sufficient public or national importance" for the country's highest court to hear it — the same one already raised by the Crown in its bid to have Dennis Oland's overturned conviction reinstated.
The issue in question centres on the trial judge's instructions to the jury about Oland's incorrect statement to police about what jacket he was wearing when he visited his father on the night of the murder, which the Crown contends was a lie but the defence maintains was an innocent mistake.
"The [Crown] submits the [defence's] application for leave to cross-appeal should be dismissed with the exception of the issue raised relating to post-offence conduct in the nature of false statements," prosecutors Kathryn Gregory, Cameron Gunn and Derek Weaver argue in documents filed with the court in Ottawa this week.
A jury found 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.
But Oland, 49, was released on bail 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 about Oland's so-called post-offence conduct, and ordered a new trial.
Oland told Saint John police he was wearing a navy blazer when he visited his father at his investment firm office on July 6, 2011, but video surveillance and witness testimony showed he was actually wearing a brown sports jacket, later found to have four small bloodstains on it and DNA matching his father's profile.
The Court of Appeal ruled the trial judge should have instructed the jurors to disregard Oland's incorrect statement in weighing his guilt or innocence unless they had independent evidence it was a lie concocted to conceal his involvement in his father's death.
In January, the Crown filed an application asking the Supreme Court to review that decision.
"This confusion in the area of post-offence conduct needs to be clarified by [the Supreme] Court to ensure that sound jury verdicts are not overturned in error on this basis as was done in the [Oland] case," prosecutors argued.
Defence appealed on 5 points
In March, the defence filed an application for leave to cross-appeal, based on five key points, including the trial judge's instructions about Oland's incorrect statement and the question of what can constitute "independent evidence" of concoction.
In its response this week, the Crown agrees the question of the nature and scope of independent evidence required to prove concoction "raises an issue of national importance by virtue of the fact that the question has not yet been considered and answered by this court."
But the Crown rejects the other four defence arguments in the cross-appeal.
These include the contention that Anthony Shaw's "earwitness" evidence — about hearing "thumping noises" from Richard Oland's office on the night of the murder at a time Dennis Oland was captured on video surveillance about a 15-minute drive away in Rothesay — "should have produced a not guilty verdict."
"There was evidence upon which the jury could conclude that Anthony Shaw was mistaken or uncertain about the time he heard the sounds, a factual finding which was reasonable on the evidence in this case," the Crown states.
Fight over sports jacket
The Crown also dismisses the defence's assertion police did not have the authority to forensically test Oland's brown sports jacket.
"The practical and judicial experience has been that an item properly seized pursuant to a search warrant … can be subjected to forensic testing/analysis without further judicial authorization," the Crown argues.
Besides, they add, it could easily be inferred that the reason police wanted to seize the jacket was to test it for forensic evidence.
Although the defence questioned the reliability of "computer-generated evidence," the Crown argues the call detail records for the victim's iPhone meet the "best evidence" rule, which is "satisfied by proof of the integrity of the electronic documents system."
Those records showed the last communication received by the victim's cellphone was at 6:44 p.m., which the Crown submitted was around the time of the murder, and the text message was transmitted by a cell tower in Rothesay, near a wharf Oland had visited that night.
As for the defence's other argument, that Oland should have been cross-examined about the Crown's "speculative" motive of rage over money and his father's extramarital affair, the Crown asserts its theory was "made clear" through the disclosure stage, pre-trial process, opening statement and witnesses.
The Supreme Court is not obligated to hear the matter. It receives about 600 applications for leave to appeal each year. Only about 80 are granted — those it deems of national importance.
Scheduling a new Court of Queen's Bench trial for Oland has been postponed until the Supreme Court decides whether it will hear the matter.
There is no set timeline for a decision, but the lawyers have said they anticipate one this summer.