A police officer’s improper background checks on potential jurors has caused a judge to declare a mistrial in the long-running prosecution of Dennis Oland of Saint John one month after more than a thousand people were assembled in a hockey arena to find an unbiased jury amid intense publicity of the case.
The mistrial means Mr. Oland, accused of second-degree murder in the beating death of his wealthy father, Richard, will now receive a trial by judge alone, which is unusual for a murder case. His new trial begins Wednesday before Justice Terrence Morrison of the Court of Queen’s Bench of New Brunswick. The prosecution had objected to Mr. Oland’s request for a judge-alone trial.
“This is a fortunate turn of events for the defence,” said Michael Lacy, one of Mr. Oland’s lawyers, in an interview. “We think this case can be fairly adjudicated by a judge properly applying the law, the presumption of innocence, the requirement of proof beyond a reasonable doubt. A judge is not going to be affected by erroneous information in the public realm, the way a jury might have been affected.”
Police are permitted to do criminal-record checks of potential jurors, or of charges pending, to ensure jury membership complies with federal and provincial law, the Supreme Court ruled in 2012. If police come across additional information, they are obliged to share it with the defence.
Constable Sean Rocca, a 16-year veteran of the Saint John Police Force, went beyond such limited checks and did not share the information with the defence, Justice Morrison said in his ruling, released Tuesday. Constable Rocca searched a Saint John police database for any police contact that individuals may have had – as victims, complainants, witnesses or suspects. And he huddled with the prosecution in the makeshift court set up in the hockey arena last month. When the defence challenged and then accepted seven jurors, the prosecution used its peremptory challenges (which need no stated justification) to reject them.
The judge said that although the prosecution received no information from Constable Rocca that it shouldn’t have and even told him when advised of the searches to stop them immediately, the officer was part of the Crown team and discussed the peremptory challenges.
“There is at least the appearance that the improper inquiries may have deprived the defendant of seven jurors with which he was content. That, in itself, is sufficient to irreparably taint the jury selection process,” the judge ruled.
The officer did not wilfully disobey the law, Mr. Oland’s lawyers said. “The only reason it was discovered was that the officer was so ignorant of the law [that] he disclosed what he did to the Crown, who notified the defence,” said Alan Gold, another member of the defence team.
Legal observers said the improper vetting raises questions about police training, in light of Supreme Court of Canada rulings on similar jury-vetting issues, such as the high-profile Saskatchewan murder case of Robert Latimer in 1997 and a 2012 case involving three individuals accused of murder in Ontario.
“That thing the Supreme Court has twice said not to do? Don’t do it,” said Stephen Coughlan, a professor who specializes in criminal law at the Schulich School of Law in Halifax, in an interview. “It’s at some level very surprising that there’s anyone involved in the criminal-justice system who doesn’t know this, because it’s the sort of thing they certainly should know.”
The province’s Justice Department declined comment, and the Saint John Police Force did not reply to requests for comment.
Richard Oland, 69, was found bludgeoned to death in 2011 – struck 39 times in the head. His son, Dennis, now 50, was charged in 2013 and convicted in 2015. But in 2016, the New Brunswick Court of Appeal threw out the conviction and ordered a new trial.
Lawyers consider a judge-alone trial highly unusual for murder, outside of cases in which the defence is one of mental disorder. It usually requires special circumstances.
“Jury trials are virtually mandatory for murder charges,” based on the principle that the most serious charge in the Criminal Code should be tried by members of the community, said Christopher Hicks, a Toronto lawyer involved in the 2012 jury-vetting case at the Supreme Court, in an interview. "So this is a very bold move by the judge. He’s obviously concerned about the lapse of time.” Mr. Lacy said it could have taken until March or April to empanel another jury; by then, the case might have run afoul of Supreme Court time limits.