Oland search warrants remain sealed, judge orders

A New Brunswick judge is allowing the search warrants connected to the Richard Oland homicide investigation to remain sealedat least for now.

The decision was delivered in a Saint John courtroom on Friday.

A sealing order onseveralwarrants and a production warrant was set to expire Friday, but the Crown prosecutor requesteda temporary extension until a court datecould beset to argue to keep the documents sealed for another six months.

Thathearing is now set for June 27.

CBC News and the Saint John-basedTelegraph-Journalhad opposed the extension request, arguing the Crown did not provide the minimum 15 days' notice required and did not present any evidence to justify the extension.

Warrants are normally public and should only be sealed in "extraordinary" cases, argued lawyer David Coles, who represented the media outlets.

"You are operating in a total, absolute, evidentiary vacuum," Coles told the judge.

"Theyre asking today that you extend something you already decided was dead after six months."

Coles said the Crown knew he had a six-month time limit and never appealed that, but left it until the eleventh hour to apply for the extension, putting everyone in a difficult situation.

"He's had his opportunity. He's had it in spades."

Chief Judge R. Leslie Jackson, who took a 30-minute recess before rendering his decision, said he would not dismiss the matter onthe "technicality" of "lack of timely notice."

The lack of evidence, he said, wasa "more thorny issue" because there appeared to be some confusion about whether the court would have had time to hear such evidence on Friday.

Still, Jackson said he felt having a "full and complete" hearing on the merits of keeping the documents sealed for another six months was "necessary."

Oland, a prominent Saint John businessman, wasfound deadin his uptown office on July 7.

Saint John Police confirmed the 69-year-old's death was a homicide and said he likely knew his killer. But almost a year later, no arrests have been made and few detailsabout the investigation have been released.

In December, the judge agreed tokeepthe search warrants and production order related to the case sealed after prosecutors argued they contain"hallmark" evidencethat only the person or persons responsible for Oland's death would know and releasing them could jeopardize the investigation.

Butthe judgetook the unusual step of setting a time limit of six months on the order, which expired Friday.

All of the documents in question were previously sealed by a provincial court judge without public notification.

Officer testimony

The Crown told the court he plans to call one of the investigating officers to testify at the next hearing as to why the documents should remain sealed.

John Henheffer stressed that it's still an open and active investigation.

'It's not a matter of police sitting on their hands, not doing anything.' Crown prosecutor John Henheffer

"It's not a matter of police sitting on their hands, not doing anything," he said.

Henheffer said he didn't have the officer testify on Friday because he didn't believe the court had time.

He didn't submit an affidavit from the officer, he said,because it would have contained some of the evidence they're trying to protect but an affidavit would become part of the courtrecord and be public.

"It's sort of like letting the horse out of the barn and then closing the gate," Henheffer said.

He told the court he hopes to have the officer testify behind closed doors, in front of only the judge.

Coles plans to object on behalf of themedia.

"In our system of open courts, scrutiny of what goes on, that's highly unusual and in my view, there are certainly precautions and ways that the court can consider receiving this evidence that could protect the interest of all parties without some sort of extraordinary measure like hearing things behind closed doors," Coles told reporters outside the courtroom.

"It affects everybody every time a court makes a ruling based on evidence that they hear behind closed doors without any even lawyers representing another viewpoint or another perspective. That does not bode well for an ongoing faith in the administration of justice," he said.

"We, as citizens, always have to protect our fundamental notions that the courts are going to be open and wheneverfor a right reason, or a wrong reasonwhenever a court decides its going to hear things behind closed doors, it raises concerns that this is Canada, thats not the norm."

Some details could be withheld

Even if the judge agrees to lift the sealing order, some of the information in the documents could still be withheld.

Lawyers representing members of the Oland family both told the court they plan to argue they should get to see the released information first.

Criminal defence lawyer Gary Miller, whopreviously told CBC he has been retained by Oland's son, Dennis Oland, and William Teed, who is on record as representing Dennis Oland's wife, Lisa, along with Mary Beth Watt and Jack Connell,said they willfight to keep some ofthe informationunder wraps on behalf of "interested parties."

"Certainly our position is very strong," said Teed. "The protection of the innocent is very important."

Coles contends their position is"totally and utterly without merit.

"To represent private individuals and say that somehow they have a higher right than a transparent justice system and the public, I believe is folly," he said.

"We just dont have this sort of hierarchy here where they somehow get to see it and vet it first and get to know things that everybody else doesnt get to know. Were opposed to that proposition."

Police searched the Rothesay home of Oland's son, Dennis Oland on July 14, a nearby wooded area by the Bill McGuire Community Centre on July 15, and a sailboat co-owned by Dennis Oland's wife, Lisa Oland, moored at the Royal Kennebeccasis Yacht Club in Saint John on July 21.

Details about other search warrants and a production order executed in the case are now under a publication ban.