The gruesome killing of Richard Oland—a wealthy businessman and a member of the family that owns the iconic Moosehead Brewery—sent shockwaves throughout the province of New Brunswick, not least given the fact that his son, Dennis Oland, was ultimately convicted of his murder.

This controversial murder mystery recently took another interesting twist; on Monday, October 24, 2016, the New Brunswick Court of Appeal (the “Court of Appeal”) unanimously quashed the conviction, and ordered a new trial (see: R v Oland, 2016 NBCA 58).  Given the complexity of the legal issues at play, the purpose of this post will be to briefly unpack the Court of Appeal’s reasons to better understand precisely why the accused was given a new trial.

 

Curiously, the appeal discussed in this post is not the only one sought by the accused: the Supreme Court heard an appeal stemming from the same charges earlier this week, dealing with a separate “bail pending appeal” issue. The outcome of that hearing is still pending.

[Note: this post refers to Dennis Oland as “the accused.” This wording is important: having been given a new trial, Dennis Oland “reacquired” (in the words of Chief Justice Drapeau) the presumption of innocence. Dennis Oland’s status has reverted to that of a person merely accused—and not convicted—of the crime.  The state bears the burden of proving his guilt beyond a reasonable doubt at the new trial.]

 

The Trial and Conviction of Dennis Oland

At the original trial, the only issue was whether the accused was in fact responsible for the death of Richard Oland.  After 65 days, the New Brunswick jury (selected from among the largest jury pool in Canadian history) had the unenviable task of weighing and balancing the circumstantial evidence presented during the hearing to determine the innocence or guilt of the accused.  On September 19, 2015, the jury opted for the latter, and sentenced Dennis Oland to life in prison with the possibility of parole after 10 years.

Among the most contentious pieces of evidence at trial was a statement the accused during the initial investigation, where he told police that he was wearing a blue jacket on the day of his father’s death. Video evidence later proved that he had in fact been wearing a brown Hugo Boss jacket (on which police found miniscule blood stains).  The Crown took the position that this inconsistent statement was in fact a lie, fabricated by the accused in order to mislead the police in its investigation.  The defence argued that this was an honest mistake, which cannot ground an inference of the accused’s guilt without independent evidence suggesting that the statement was indeed fabricated.

In his instructions to the jury, the trial judge told jurors to decide whether the accused’s inaccurate description of the jacket was an honest mistake or an intentional lie, and added that, in some cases, the jury may infer that an accused person intentionally lied in order to “deflect suspicion away” from himself in order to mask actual guilt. The Court of Appeal summarizes these instructions as follows:

[7] The trial judge told the jurors the issue was whether the appellant’s inaccurate description of the jacket was an honest mistake or an “intentional lie” that was related to the commission of the offence charged. If it was the latter, the jurors were told they were entitled to consider the lie, together with all the other evidence in the case, in reaching a verdict of guilty. The trial judge made those observations after advising the jurors that an “intentionally false statement […] will, in some circumstances, be evidence from which it can be inferred that the [author] is attempting to mislead the police and deflect suspicion away […] because [he or she] actually committed the offence”. (Emphasis added.)

The trial judge’s instructions on this “key piece of evidence” became the focal point of the proceedings on appeal.

 

On Appeal to the New Brunswick Court of Appeal

On appeal, the defence argued (among other things) that the conviction ought to be quashed, on the basis that the trial judge had misdirected the jury in regards to the accused’s police statement.  The Court of Appeal agreed, holding judge’s instructions were “fundamentally flawed.”  Accordingly, it quashed the conviction and ordered a new trial.

Understanding the “fundamental flaw” in the trial judge’s instructions necessitates a brief discussion of the (complex) rules of evidence relating to post-offence conduct.

Post-offence conduct is circumstantial evidence of accused’s conduct after the offence has been committed.  This evidence can be indicative of the accused guilt if it is in line with the expected behaviour of the real culprit.  Take, for example, a situation where a man is suspected of a robbing a bank after an eye-witness identified him as the culprit; the fact that he subsequently grew a beard and bleached his hair blonde may allow for an inference that the suspect, in line with the expected conduct of a guilty person, was attempting to avoid identification by altering his appearance.

However, guilt is usually not the only possible inference from evidence of post-offence conduct.  In other words, while the actions of a suspect following the commission of a crime may indicate that person’s guilt, it is usually not the only conclusion to be drawn. In many cases, there may be other innocent explanations for the behaviour of suspects, especially after they have been linked with a crime.  While the suspect in the above example may have changed his appearance to avoid identification, it is equally plausible he may have done so for reasons completely unrelated to the crime for which he is a suspect.  The fact that he changed up his style doesn’t lead inexorably to the conclusion of his guilt.  Something more to link this conduct to the commission of the offence is required.

There is a danger, however, that layperson-jurors may not be alive to the important limitations on the probative value of this evidence.  As noted by the Supreme Court of Canada in R v White, 2011 SCC 23, “jurors may be tempted to ‘jump too quickly from evidence of post-offence conduct to an inference of guilt’ […] without giving proper consideration to alternate explanations for the conduct in question” (emphasis added).  To prevent these situations of juror-overreliance, it is necessary that trial judges carefully instruct the jury as to the proper way of thinking through this evidence.

 

 A Fundamental Flaw?

The post-offence conduct at issue in R v Oland was the inconsistent statement given by the accused to police, regarding the colour of the jacket he was wearing on the day his father was killed.  The Crown argued that this post-offence lie was manufactured to mislead the police.  The trial judge advised the jurors that it was up to them to determine whether the inconsistent statement was an intentional lie, or instead an honest mistake.  As laid out in the Court of Appeal’s reasons, he went on to explain that:

…an intentionally false statement […] will, in some circumstances, be evidence from which it can be inferred that the [author] is attempting to mislead the police and deflect suspicion away […] because [he or she] actually committed the offence.  

According to the unanimous Court of Appeal, the main problem here is that the instruction fails to properly advise the jury to consider other potential explanations for which the accused may have lied, if the jury finds that the statement was a lie to begin with.  As articulated at paragraphs 7 and 8 of the Court of Appeal’s reasons:

…Significantly, the trial judge did not instruct the jurors that, even if they found the appellant’s erroneous statement was a lie, it had no probative value unless they concluded, on the basis of other evidence independent of that finding, that the lie was fabricated or concocted to conceal his involvement in the murder of his father.

…a lie may constitute incriminating evidence if and only if, in addition to being an intentional falsehood, it was fabricated or concocted by the accused for the purpose of concealing his or her involvement or participation in the offence charged. A fabricated or concocted lie is one that is made up after giving it some thought; as such, it is distinguishable from a spontaneous unreflected or unconsidered lie [and as such], a finding of fabrication or concoction cannot be made simply because the accused lied; there must be other evidence, independent of that finding upon which the trier of fact can find fabrication or concoction.

On this basis, the Court of Appeal ordered a new trial.  The decision appears to be motivated by a concern that the jurors may have drawn improper inferences from evidence that on its face does not lead directly to a conclusion of the accused’s guilt.

From one perspective, this may appear to be a simple deficiency in the judge’s otherwise sound instructions. Indeed, Crown prosecutor Kathryn Gregory was quoted by the CBC as stating that the police statement “was not a critical aspect of the case,” in that it did not go to the ultimate question of whether the accused actually committed the murder.  Was this issue really sufficient to warrant a whole new trial – especially considering that the first trial was among the most expensive in New Brunswick’s history?

The defence argued that it was, and the Court of Appeal agreed.  With the case against the accused entirely circumstantial, evidence such as the inconsistent “jacket statement” can ostensibly go a long way in influencing a jury’s perception of the accused’s guilt or innocence, as suggested by author Greg Marquis, who had recently written a book about the trial of Dennis Oland.  (Indeed, Alan Gold, who acts as counsel for the accused, has gone as far as to describe this piece of evidence as the “lynchpin” of the case against his client.)  More fundamentally, a basic principle of our criminal justice system is that the innocent not be punished, and in cases where the propriety of a guilty verdict is called into question by an appeal court, a new trial is arguably one of the only fair results.

At the same time, not all is lost for the Crown. The Court of Appeal had the option of issuing an acquittal.  Instead, it chose to order a retrial, allowing the Crown another chance to prosecute the case on its merits. It also bears noting that this may not be the end of the line in the appeals process. The Crown retains the option of seeking leave to appeal to the provincial appeal court’s decision to the Supreme Court. As does the accused himself, on the grounds that the decision should have been an acquittal, not a retrial. Whether either side will elect to do so remains to be seen.

 

A Concluding Note

Before concluding, however, I want to point out an interesting note I came across in researching this post.  Although I was unable to readily find a transcript of the trial judge’s instructions, I did locate a CBC news article which cited the following portion of the trial judge’s charge to the jury:

You must not use the evidence about what Dennis Oland said about the colour of the jacket in deciding or helping you decide that Dennis Oland committed the offence charged unless you reject any innocent explanation you may find for it. (Emphasis added.)

Assuming that this is an accurate quote from the trial judge’s instruction to the jury, can it really be said that the jurors were not properly instructed (to quote the Supreme Court in White) to give “proper consideration to alternate explanations for the conduct in question”?

I’m looking forward to hearing your thoughts in the “Comments” section, below.