Getting carried away? Factors that can lead to miscarriages of justice


The case of Dennis Oland has made national headlines in recent days (http://www.theglobeandmail.com/news/national/dennis-oland-found-guilty-in-murder-of-his-father/article27883485/). On December 19, 2015, the jury found Mr. Oland guilty of murdering his father, Richard Oland, a New Brunswick multimillionaire businessman and the brother of Derek Oland, the Executive Chairman of Moosehead Breweries Limited.

 

Although a second-degree murder conviction automatically results in a life sentence (as is the case with a first-degree murder conviction), it is interesting to note that the jury recommended Dennis Oland be eligible to apply for parole after just 10 years in custody, which is the shortest period of time allowed under the Criminal Code before becoming parole-eligible with respect to a murder conviction.

 

It is also fascinating that the Oland family continues to support Dennis Oland and is convinced of his innocence (http://www.cbc.ca/news/canada/new-brunswick/dennis-oland-murder-verdict-1.3368684): “We continue to believe our nephew and cousin Dennis is innocent and we will support him and his family members through the course of whatever legal actions will unfold… We want to reiterate that all Oland family members are certain Dennis had nothing to do with the death of his father.”

 

It has come to light that the police investigation of Richard Oland’s murder featured a number of flaws (see, for instance: http://thechronicleherald.ca/canada/1328547-5-things-to-know-about-the-dennis-oland-trial and http://www.cbc.ca/news/canada/new-brunswick/dennis-oland-murder-warrant-charter-1.3357229). The presiding judge in this judge-and-jury trial, Justice John Walsh of the Court of Queen’s Bench of New Brunswick, referred to a number of these in his charge to the jury, where he provided them with instructions and guidelines to help them in their deliberations.

 

Issues with the police investigation include crime scene contamination, apparent attempts to mislead the court with regard to police attendance at certain parts of the crime scene, and executing an expired search warrant.

 

While Dennis Oland’s lawyer, Toronto-based Alan Gold, pointed out several flaws in the investigation, the jury was evidently persuaded that Mr. Oland’s guilt had been proven beyond a reasonable doubt.

 

Though I am certainly in no position to determine at this point whether this case constitutes a miscarriage of justice, it is important to bear in mind the factors that can contribute to a wrongful conviction.

 

Bruce MacFarlane, QC, former Deputy Attorney General of Manitoba and former Assistant Deputy Attorney General of Canada, is a leading scholar in the area of miscarriages of justice. He has identified four “predisposing circumstances” that often help to create an environment that fosters miscarriages of justice: first, extreme public pressure to secure a conviction in a high-profile case; second, the presence of an unpopular or marginalized accused; third, a conversion of the adversarial nature of the criminal justice system into a game; and fourth, a belief that the ends justify the means (Bruce MacFarlane, “Convicting the Innocent: A Triple Failure of the Justice System” (2007) 31 Manitoba Law Journal 403 at 435-436; this article may also be viewed here: http://www.aidwyc.org/wp-content/uploads/2015/08/MacFarlane-2006-Convicting-the-Innocent-A-Triple-Failure-of-the-Justice-System.pdf).

 

These four factors are found in a great number of cases of wrongful convictions in the common law world. All actors in the criminal justice system must work to minimize the existence and effect of these circumstances.

 

In the case of Dennis Oland, there can be no doubt that the murder of Richard Oland was extremely high-profile, which put a great deal of pressure on local police, who were largely unaccustomed to dealing with cases such as this. As Eric Andrew-Gee wrote in The Globe and Mail, “The Oland affair became the Maritimes’ answer to the O.J. Simpson trial – a comparison that locals frequently made themselves” (http://www.theglobeandmail.com/news/national/dennis-oland-found-guilty-in-murder-of-his-father/article27883485/).

 

The facts surrounding Richard Oland’s demise were also particularly gruesome: “For all the fanfare it garnered, the crime itself was horrific… The 69-year-old’s body was found with dozens of sharp and blunt force wounds covering his head, hands, and neck, including 14 skull fractures” (http://www.theglobeandmail.com/news/national/dennis-oland-found-guilty-in-murder-of-his-father/article27883485/).

 

Dennis Oland himself was vilified in the press, as it became public knowledge that he was “anxious about finances, and that he was late making interest payments on a half-million dollar loan his father had extended to him during Dennis’s divorce” (http://www.theglobeandmail.com/news/national/dennis-oland-found-guilty-in-murder-of-his-father/article27883485/). The media’s portrayal of Dennis Oland as a spoiled, ungrateful, vengeful son—bitter about his father’s “stinginess and philandering”—meant that many members of the public had little respect for the accused; as one reporter who covered the case said, “There is a feeling that there’s a two-tiered justice system, that richer families get treated different” (http://www.theglobeandmail.com/news/national/dennis-oland-found-guilty-in-murder-of-his-father/article27883485/).

 

It is also worth noting that many members of the public—and the media—began to use “win” or “lose” language with respect to the case (see, for instance: http://atlantic.ctvnews.ca/mixed-reaction-following-guilty-verdict-at-dennis-oland-murder-trial-1.2707358 and http://www.cbc.ca/news/canada/new-brunswick/dennis-oland-second-degree-murder-trial-1.3262070), which risks converting the adversarial nature of the criminal justice system into a game. The criminal justice system must not be viewed as a game where one side “wins” and where the other “loses.” The emphasis must be on weighing all evidence and considering whether there is proof of guilt beyond a reasonable doubt.

 

Police conduct in this case also points to incompetence and also perhaps to the existence of what Mr. MacFarlane, QC, terms “noble cause corruption”—a belief that the ends justify the means. As Andrew-Gee’s article (http://www.theglobeandmail.com/news/national/dennis-oland-found-guilty-in-murder-of-his-father/article27883485/) states:

 

“Some of the their mistakes were breathtaking. Officers allowed an unknown number of people to use the bathroom adjacent to Mr. Oland’s office for two days after his body was found, possibly destroying evidence of a clean-up effort; they didn’t test the building’s back door for finger prints or DNA before contaminating it; a senior investigator needlessly entered the crime scene out of ‘curiosity,’ without wearing any protective gear; and one officer used his bare hands to touch the brown jacket Dennis Oland was wearing on the day of the killing – the same jacket that was kept folded in a paper bag for months before testing, and which became a crucial piece of evidence after it was found to be stained with four specks of Richard Oland’s blood.”

 

Perhaps most concerning is this article (http://www.cbc.ca/news/canada/new-brunswick/oland-guilty-police-chief-1.3373255) from CBC News, which includes the following: “The new chief of the Saint John Police Force says the guilty verdict at Dennis Oland’s second-degree murder trial in the 2011 bludgeoning death of his father provides ‘a degree of validation’ for the beleaguered force.”

 

This statement is quite simply disturbing and should be cause for alarm. Police are responsible for investigating a crime—in this case, a murder. Here, police were criticized for what is widely recognized to be a flawed investigation. It seems like rather circular reasoning to claim that a murder conviction stemming from a flawed investigation targeting a particular accused provides “a degree of validation” for the investigators involved in the case.

 

Based on the many issues identified here, it seems highly doubtful that this trial decision is the end of the Dennis Oland case.


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About Brandon Trask

Brandon Trask is a regular blog contributor and former colleague of Daniel Murphy and currently a doctoral student at the University of Toronto’s Faculty of Law. He was formerly a Crown Attorney in Newfoundland and Labrador. Brandon holds law degrees from the University of Manitoba and the University of Toronto.