Dennis Oland was wrongly denied bail, Supreme Court of Canada rules

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Oland

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The Supreme Court of Canada says the New Brunswick Court of Appeal made a mistake by denying Dennis Oland bail while he waited to appeal his second-degree murder conviction in the 2011 bludgeoning death of his father, multimillionaire Richard Oland.

In a unanimous, precedent-setting decision released on Thursday morning, the country's highest court says Oland was wrongly denied bail and that it would have set aside Oland's detention order.

"By all accounts, aside from the seriousness of the offence for which Mr. Oland was convicted, he presented as an ideal candidate for bail," states the decision written by Justice Michael Moldaver on behalf of the nine-justice panel.

He was not considered a danger to the public, he was not considered a flight risk, and the grounds of his conviction appeal were not considered "frivolous," the statement said.

"In the circumstances, there is considerable merit to Mr. Oland's submission that if he did not qualify for release, no one convicted of a similarly serious offence would ever be released, absent a showing of unique or exceptionally strong grounds of appeal. That cannot be right," wrote Moldaver.

"Parliament did not restrict the availability of bail pending appeal for persons convicted of murder or any other serious crime and courts should respect this."

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.

Under the Criminal Code, bail may be granted pending appeal if: the appeal is not frivolous; the convict will surrender into custody when the time comes; and the detention is not necessary in the public interest.

However, the bail provisions have been interpreted differently in different jurisdictions.

This is the first time the Supreme Court has ruled on how the bail provisions in the Criminal Code should work in appeals of convictions.

​It will now be the leading decision for every jurisdiction across the country for future bail applications pending appeals of convictions that raise questions over the public's confidence in the administration of justice.

Oland's defence team is "very happy" the Supreme Court has "vindicated [their] legal position," Alan Gold said in an email to CBC News.

"But that sentiment is considerably tempered by our regret that Dennis Oland had to spend so many months in custody unnecessarily," he said.

Oland, 49, served about 10 months in prison after being twice denied bail by New Brunswick's Court of Appeal in February 2016 and again in April 2016.

He was freed on bail in October after the same court overturned his conviction, citing errors in the trial judge's instructions to the jury.

The court ordered a new trial and released Oland on conditions until then, saying his presumption of innocence had been restored.

"The Supreme Court has now cleared up the confusion that existed in the law regarding bail in these kinds of cases, but Dennis paid a price in loss of freedom for that confusion and that is most unfortunate," said Gold.

Oland's uncle and the victim's brother, Derek Oland, the executive chairman of Moosehead Breweries, said his family is also "pleased" with the Supreme Court's decision "and continue to believe Dennis is innocent."

Although bail pending appeal became a moot point for Oland, his defence lawyers still wanted the Supreme Court to hear their challenge of his initial bail denial, which left him behind bars before winning a retrial.

​"That decision should be declared to have made an error in law so that it cannot come back to haunt us on some unfortunate turn of events in the future," Gold had said, referring to the fact Oland is still facing a second trial.

Gold also argued it is a case of national importance. He said it was an opportunity for the Supreme Court to provide clear guidance on the question of when a convicted murderer should be released on bail while awaiting appeal.

The New Brunswick Crown agreed the case should proceed, as did the four interveners — the attorneys general of Alberta, British Columbia and Ontario, and the Criminal Lawyers' Association of Ontario.

The Supreme Court does not usually decide cases that are moot, but does have the discretion to do so on cases it feels have value. Arguments were presented in Ottawa on Oct. 31.

Gold argued bail should be within reach for appellants who have "arguable grounds," with a "potential prospect of success" — even those convicted of murder.

The Crown and attorneys general argued more serious offences should require more serious grounds of appeal, particularly post-conviction. Murder is the most serious offence in the Criminal Code and releasing a convicted murderer merely because their grounds of appeal are "not frivolous" could undermine the public's confidence in the justice system, they said.

Oland's lawyers and the Criminal Lawyers' Association of Ontario said that the public's confidence can also be undermined when someone is unjustly detained.

Oland was sentenced on Feb. 12, 2016, to life in prison with no chance of parole for at least 10 years after a jury found him guilty on Dec. 19, 2015, of murdering his father.

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.

The overturning of Dennis Oland's conviction could also go before the Supreme Court.

The Crown has filed an application seeking leave to appeal. Oland's lawyers have indicated they plan to cross-appeal, 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.

As a result, setting a date for Oland's new trial has been postponed. If a new trial does proceed, it's not expected to be held until 2018.