Dissension in Dennis Oland murder appeal would trigger Supreme Court review

If the New Brunswick Court of Appeal panel hearing DennisOland'smurder conviction appealis unable to reach a unanimous decision, the losingpartyhasan automatic right to take the case to the Supreme Court of Canada.

Normally, the country's highest court must first agree to hear a case, known as leave to appeal.

The Supreme Courtreceives about 600 such applications each year. Only about 80 are grantedusually cases that involve a question of public importance.

• Dennis Oland murder appeal decision possible by Monday
• Day 6:Found guilty of murdering his father, Dennis Oland now appealing his conviction

But there is an automatic right of appeal in criminal cases whenone judge in the provincial court of appeal dissents on a question of law.

A three-member panel is handlingOland's appeal.Chief Justice Ernest Drapeau, Margaret Larlee and Kathleen Quigghopeto deliver their decision on Monday at 11 a.m. AT., Drapeau said on Thursday, following a three-day hearing.

Oland, 48, was found guiltyon Dec. 19, 2015 of second-degree murderin the 2011 bludgeoning death of his father, Saint John multimillionaire Richard Oland.

Thejury reached its verdict following athree-month trial inSaint John's Court of Queen's Benchand roughly 30 hours of deliberations over four days.

Oland'sdefence lawyers contend the verdict was "unreasonable" in the circumstantial case, that the trial judge made errors in his instructions to the jury and errorsin allowing some pieces of evidence to be admitted, including Oland's blood-stained brown sports jacket.

They are seeking to have the Court of Appeal quashthe conviction, and eitheracquitOlandor order a new trial.

On Thursday, Drapeau told the Fredericton courtroom the panel was "struggling" with the "difficult" issue of Oland's post-offence conduct.

Much of the three-day hearingfocused on Oland's incorrect statement to Saint John police about what he was wearing when he visited his fatherat his Far End Corporation investment office on July 6, 2011, the night police believe the murder occurred.

Oland told police he was wearing a navy blazer, but video surveillance and witness testimony showed he was actually wearing a brown sports jacket, whichwas later found to have four small bloodstains on it and DNA matching his father's profile.

During the trial, the Crown portrayed Oland'sfalse statement as"post-offence conduct;" a "lie" intended to mislead police.

The defence, however, maintains it was an "innocent mistake," as Olandtestified, and there was no independent evidence to proveotherwise.

They contend the trial judge, Justice John Walsh,should have instructed the jury to ignorethe "erroneous statement" because there was "no reasonable inference of guilt" unless the jurorsfell into "circular reasoning" and "guilt was first assumed."

'Lynchpin' in Crown's case

Walshcautioned the jury on the issue."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," hesaid in his instructions.

Defence lawyer Alan Gold argued the issue wrongly left Oland vulnerable to being thought a liar by the jury and contributed to the guilty verdict.

He referred to Oland's statement about the jacket as being a "lynchpin" in the Crown's case."The case may not have been as persuasive without it.There has to be a new trial," he said.

Crown prosecutor Kathryn Gregory, however,argued Walsh actedproperly in letting the jurorssort out for themselves why Oland gave police wrong information.

If the judge did make a mistake, she said, "it was a harmless error."

Not 'critical aspect'

Gregory downplayed the significance of Oland's incorrect statement. It "was not a critical aspect of this case," she said. It was only one of several circumstantial issues for the jury to consider."It related to the colour of his jacket, but it did not go to the ultimate question."

"The remainder of the evidence certainly supports the finding of guilt," she said,asOlandlooked on from the prisoner's box at the back of thecourtroom filled to capacity with supporters and reporters.

Drapeauwasn't convinced."I have a hard time accepting that a lie about the jacket worn the day of the visit at Oland's office, and then the jacket is analyzed and DNA of Oland senior is found on that jacket that, that is somehow an inconsequential piece of evidence," he said.

Oland's statement aboutthe jacket is not a so-called "smoking gun" in the case, but it's "not peripheral" either, Drapeau remarked."I would have tended to say it was significant on the scale of conviction. But that's me."

The body of Richard Oland, 69, was discovered lying face down in a pool of blood in his Saint John investment office. He had suffered 45 blunt and sharp-force injuriesto his head, neck and hands.

His son, Dennis Oland, was the last known person to see him alive.

Oland isserving a life sentencewith no chance of parole for at least 10 years.