Dennis Oland murder conviction appeal decision expected today

The fate of Dennis Oland is expected to be decided today.

The provincial Court of Appeal is tentatively scheduled to rule at 11 a.m. AT on whether it will overturn Oland's murder conviction in the 2011 death of his father, New Brunswick multimillionaire Richard Oland.

Chief Justice Ernest Drapeau said Thursday he and fellow panel members Justice Margaret Larlee and Justice Kathleen Quigg would "make every effort" to deliver a decision at that time "and if at all possible, supporting reasons."

If the panel overturns Oland's conviction and enters an acquittal, Oland will walk out of the Fredericton courtroom a free man.

Oland, 48, is currently serving a life sentence with no chance of parole for at least 10 years after a jury found him guilty of second-degree murder, following a three-month trial in Saint John's Court of Queen's Bench.

He has been in custody since Dec. 19, 2015.

A total of 5,000 people were summonsed for Oland's trial last fall, making it one of the largest jury pools in New Brunswick history and larger than some of the most high-profile cases across Canada, including Luka Magnotta, Robert Pickton and Paul Bernardo.

His defence lawyers contend the verdict was "unreasonable" in the circumstantial case, that the trial judge made errors in his instructions to the jury and errors in allowing some pieces of evidence to be admitted, including Oland's blood-stained brown sports jacket.

Another possibility is the panel overturning Oland's conviction but ordering a new trial.

In that scenario, Oland could also potentially be released immediately as the Court of Appeal could agree to grant him bail pending a new trial because his presumption of innocence would be restored.

Depending on the result of the Court of Appeal decision, the Crown or Oland's lawyers could seek leave to appeal to the Supreme Court of Canada.

The Supreme Court receives about 600 such applications each year. Only about 80 are granted — usually cases that involve a question of national public importance.

The body of Richard Oland, 69, was discovered lying face down in a pool of blood in his Saint John investment office. His son Dennis was the last known person to see him alive.

Oland's family has stood by him from the beginning, maintaining his innocence.

Quick decision 'shocking'

Christopher Hicks, a Toronto lawyer who specializes in murder cases and has been following the Oland file closely, said he finds it "shocking" the appeal panel could deliver its decision so quickly.

Hicks said it suggests "whatever result they're going to come to, they seem to believe it's obvious and it's not troubling them in any way."

Following the three-day appeal hearing last week, the chief justice said the panel was "struggling" with the "difficult" issue of Oland's post-offence conduct.

Oland told police he was wearing a navy blazer when he visited his father at his office on July 6, 2011, the night police believe the murder occurred. Video surveillance and witness testimony showed Oland was actually wearing a brown sports jacket, which was later found to have four small bloodstains on it and DNA matching his father's profile.

The Crown argued it was a "lie" intended to mislead police, but the defence maintains it was an "innocent mistake."

"I think [the appeal panel] should 'struggle' a little longer," said Hicks.

Appeal acquittals 'relatively rare'

It's "relatively rare" for appeal courts to overturn a verdict and enter an acquittal, according to Hicks.

In that event, Oland would continue serving a life sentence for his father's murder.

It usually only happens in cases where the appeal court finds the evidence against the appellant was insufficient, most commonly in cases that hinge on identity and the evidence is flawed, Hicks said, citing as an example police asking the victim of a crime to identify the perpetrator from a one-person lineup.

In such cases, "a new trial would be in vain because the evidence is never going to get any better … It won't ever uphold a conviction," said Hicks.

When a conviction is overturned, "more frequently" a new trial is ordered, he said.

Nicole O'Byrne, an associate law professor at the University of New Brunswick, agrees.

"Appellant courts generally don't like to be basically the next trial court," she said.

"Appellant level courts are supposed to be reviewing the legal questions, such as the admissibility of the evidence, such as the jury charge. They don't see the witnesses, they don't see the cross-examinations, they don't assess the evidence, so they're very, very hesitant to … substitute a verdict off the bench.

"That being said, the law has to be applied correctly, so when it comes to questions like, did the judge charge the jury properly, then the appeal court can come in and say, 'Look, the jury charge was so poor that there's no way that a properly instructed jury could have acquitted, or found guilty, on a proper basis, so we will substitute our own view.' But it's [only in] very extreme circumstances."

Crown would have to decide on retrial

If a new trial is ordered, the Crown could exercise its "prosecutorial discretion" and choose not to retry Oland if a reasonable prospect of conviction no longer existed, said O'Byrne.

That would largely depend on if the appeal panel's findings. If, for example, the panel throws out a key piece of evidence, such as Oland's blood-stained brown sports jacket, or cautions the Crown about the strength of its case, prosecutors may decide not to pursue a new trial.

"If they feel they're running a losing case here that would just be for show, they're not going to put public resources toward that," said O'Byrne.

If a new trial does proceed, it would most likely still be on the charge of second-degree murder, given the nature of Richard Oland's death. Oland received dozens of blows to his head and neck, making a switch to a manslaughter charge unlikely.

When new trials are ordered, "generally speaking, there's not a second trial," said Hicks. "Often there's a resolution" with guilty pleas to lesser charges.

"But that would call upon Dennis Oland to say, 'Yes, I killed my father. I didn't mean to, but I did a wrongful act that caused my father's death.'

"He denies it ever happened. He says, 'I didn't do this.'"