Historic or of limited value? Legal experts assess Dennis Oland bail decision

The Supreme Court of Canada's ruling that Dennis Oland was wrongly denied bail while he waited to appeal his second-degree murder conviction is being described by legal experts across the country as everything from "historic" to "of limited precedential value."

The unanimous decision released on Thursday is the first time the country's highest court has ruled on how the bail provisions in the Criminal Code should apply in appeals of convictions.

"There's no question that this is a major case in Canadian criminal justice," said Christopher Hicks, a Toronto lawyer who specializes in murder cases and has followed the Oland case closely.

The Criminal Code states bail may be granted pending appeal if: the appeal is not frivolous; the convict will surrender into custody in accordance with the terms of the order; and detention is not necessary in the public interest, which case law has deemed to consist of two components — public safety and the public's confidence in the administration of justice.

But up until now, the provisions have been applied differently in different jurisdictions, said Hicks.

"There's always this tension on bail pending appeal applications between enforceability — meaning that someone has been convicted and sentenced and they should serve that sentence, and reviewability — meaning that the criminal justice system isn't perfect and sometimes there are wrongful convictions and it's only right that people who have a strong appeal should be allowed out on bail pending the resolution of their appeal rather than serving a sentence that is unjust," he said.

The Supreme Court decision "sets a standard" on the thorny issue of the public's confidence in the justice system and how the strength of the grounds of appeal of a conviction should be considered, said Hicks.

"It really clarifies the issues for the judges. It doesn't guarantee a result, but it sets down a template within which everybody can work and argue the issues correctly, so I think it's a real benefit, it's a real precedent," he said.

"It's historic."

No one convicted of murder in New Brunswick has ever been granted bail pending appeal before, and there have only been 34 cases across Canada in which someone convicted of murder was granted bail, according to Oland's lawyers.

'Erred in law'

Oland, 49, was freed on bail on Oct. 25 after the the New Brunswick Court of Appeal overturned his conviction in the 2011 bludgeoning death of his father, multimillionaire Richard Oland, citing errors in the trial judge's instructions to the jury, and ordered a new trial.

But he served about 10 months in prison after the same court twice denied him bail pending his conviction appeal.

Justice Marc Richard ruled in February 2016 "a reasonable member of the public would find that, although [Oland's] grounds of appeal may be clearly arguable, none fall in the category of the unique circumstances that would virtually assure a new trial or an acquittal."

"In the end, I am forced to conclude that knowing all this, should Mr. Oland be released in these circumstances, the confidence of the reasonable member of the public in the administration of criminal justice would be undermined," Richard's 14-page decision stated.

A three-justice panel upheld that decision in April 2016.

​The Supreme Court found the appeal judge "erred in law by looking for grounds of appeal that would have virtually assured a new trial or an acquittal" and the review panel "erred in failing to intervene."

"Mr. Oland's detention was clearly unwarranted," Justice Michael Moldaver wrote on behalf of the nine-justice panel.

"There were no appreciable public safety or flight risk concerns and the grounds of appeal were 'clearly arguable,'" the decision states.

"In addition, the appeal judge overlooked what I consider to be an important finding made by the trial judge, namely, that in the circumstances, Mr. Oland's crime gravitated more toward the offence of manslaughter than to first degree murder," wrote Moldaver.

"This finding was important because it served to lessen Mr. Oland's degree of moral blameworthiness, thereby attenuating the seriousness of the crime and hence the enforceability interest. In my view, the cumulative effect of these considerations ought to have tipped the scale in favour of release."

Nicole O'Byrne, an associate law professor at the University of New Brunswick in Fredericton, says it's a "very clear decisive win" for Oland, but may not be as clear for others.

Although the decision clarifies that the bail provisions in the Criminal Code do apply to those convicted of murder and other serious charges, O'Byrne contends it's so focused on the specifics of Oland's case, "it's of limited precedential value."

"When the Supreme Court of Canada says that things are contextual and depend on the circumstances and part of the judgement says it will be up to judges to apply their experience and common sense in the area, you know, one could argue that the New Brunswick Court of Appeal judges did just that, right?

"So you have the New Brunswick Court of Appeal, I would think, kind of wondering how they could have done this any differently with this new direction, because it's so contextual, it leaves everything up to the discretion of the judges, basically to apply those various factors," she said.

"In Dennis Oland's case, he passes muster, but we don't really know who else would" unless they fit the same profile as Oland, with no prior record, no flight risk, no danger to the community, and family support," said O'Byrne.

'Need a lot of resources'

"And what we've see in this case is that you need a lot of resources to get through the appeal processes.

"The next person looking at bail pending appeal, it's going to be uncertain whether or not they're going to fit those parameters and how can they push that forward unless they've got a lot of resources."

The body of Richard Oland, 69, was discovered lying face down in a pool of blood in his investment firm office in Saint John on July 7, 2011. He had suffered 45 blows to his head, neck and hands. No weapon was ever found.

His son Dennis was the last known person to see him alive during a meeting at his office the night before.

A jury found him guilty on Dec. 19, 2015, following a three-month trial and he was sentenced to life in prison with no chance of parole for at least 10 years.

The Crown filed an application to the Supreme Court in January, seeking leave to appeal the overturning of Oland's conviction, hoping to have the guilty verdict reinstated. Oland's lawyers plan to file a cross-appeal next week, seeking an acquittal instead of a new trial.

The Supreme Court has not yet decided whether it will hear the matter and there is no set timeline for a decision.

Scheduling of Oland's new trial has been postponed until it does. If a new trial does proceed, it's not expected to be held until 2018.