Legally Conned

The Dennis Oland murder verdict was thrown out thanks to an illogical legal theory that’s been sowing confusion in Canada’s courts for decades

It was a murder case that had Maritimers fixated. Dennis Oland, whose wealthy family founded Moosehead brewing, was accused of bludgeoning his father Richard to death in 2011. The trial, which took place in the fall of 2015, was one of New Brunswick’s longest and most expensive. Over the course of three months, 47 witnesses testified, including Oland himself, and 236 exhibits were entered into evidence. The jury deliberated for four days before finding the accused guilty of second degree murder.

Dennis Oland blood stained Jacket

This blood stained brown Hugo Boss jacket was at the centre of the controversy

“Oh no, oh no,” Dennis Oland wept aloud after he heard the verdict. “Oh God! Oh my

Two months later, he was sentenced to life in prison with no chance of parole for 10 years. He served 10 months before the New Brunswick Court of Appeal overturned the jury’s verdict, ordered a new trial and released Oland on bail in October 2016. For many, the appeals court decision was vindication of what they had argued all along, that Dennis Oland was not guilty, but, for others, it simply confirmed their belief that the wealthy can get away with almost anything including murder. (If you’d like a quick backgrounder on this case, check out the Fifth Estate documentary, Murder in the Family)

Despite the notoriety of the Oland murder, there’s been next to no public discussion about the legal issue that caused the verdict to be overturned, and which New Brunswick prosecutors have described as a “narrow and contentious point of law.” What’s more, this same issue has been causing problems across the country for decades. Oland was far from the first murder conviction to be quashed for reasons that are not just hard to understand but fundamentally make no

Oland told police he wore a blue blazer

In the case of R. v. Dennis Oland, the supposedly controversial evidence involves the jacket Oland wore on July 6, 2011, the day his father was murdered at his office in Saint John. Oland told police he was wearing a navy blazer, but video from security cameras showed him dressed in a brown Hugo Boss sports jacket, and a witness also testified that he had worn a brown jacket when he visited his father on the day of the murder. Despite the fact that the jacket had already been dry cleaned when it was seized by police, it still had four small bloodstains on it, all of which were eventually tested and found to contain DNA matching Dennis’s father’s

In his instructions to the jury, the trial judge, Jack Walsh, said it was up to the jurors to decide whether Oland’s testimony, in which he explained that he had forgotten what he was wearing the day before, “was an honest mistake or an ‘intentional lie’ that was related to the commission of the offence

So far, so good. That is the jury’s job. They are supposed to deal with questions of fact like whether or not witnesses are lying, while it is up to the judge to handle questions of law like what evidence to admit or

What bothered the appeals court judges was what Walsh said next, which is quoted here with the original edits of Chief Justice Ernest Drapeau who wrote the decision. Walsh told the jury 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

Lies vs. concocted lies: is there a difference?

In non-lawyer speak, that means if the jury thinks Oland lied about which jacket he wore, they can consider his falsehood as part of the evidence of his guilt. Now, although this might seem completely non-controversial and commonsensical to non-lawyers, it provoked the appeal judges to declare a mistrial because Walsh “did not explain to the jurors that, even if they found [Oland’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

At this point you’re probably going to have to stop and reread and then reread another time. After that, if you’re anything like me, you’ll have a reaction that is something along the lines of “WTF!? All lies are, by their very nature, concocted.” You will then wonder in astonishment whether this can really be the “serious error of law” over which three high court judges threw out a jury verdict from a three-month long jury trial.

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