Dennis Oland is "virtually assured" of getting bail pending appeal of his second-degree murder conviction in the 2011 bludgeoning death of his father, Richard Oland, according to a Toronto lawyer who specializes in murder cases.
"Someone who's been convicted even of a very serious crime — the most serious crime of the Criminal Code — who has good grounds of appeal, should not remain in custody while his appeal is heard … That's the law from the Supreme Court of Canada," said Christopher Hicks, who isn't directly involved in the Oland case.
"And with Dennis Oland, come on, you've got an upstanding member of the community, someone with no [prior] criminal record, who obeyed all of the conditions of his bail pending trial, and who has substantial and well-informed sureties," he said.
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Oland's lawyers filed the notice of appeal and notice of an application for bail with the New Brunswick Court of Appeal in Fredericton last week.
They are seeking to have the conviction quashed, and either an acquittal entered or a new trial ordered.
Oland, 47, was found guilty by a jury in Court of Queen's Bench in Saint John on Dec. 19, following 30 hours of deliberations over four days.
'It's not that money talks, it's that merit talks.' - Christopher Hicks, Toronto lawyer
His lawyers contend it was an "unreasonable verdict in law."
They allege Justice John Walsh erred in his instructions to the jury, and in allowing certain evidence to be admitted, including Oland's brown sports jacket, which was found to have three small blood stains on it, with DNA matching his father's profile.
They also allege the Crown speculated on Oland's financial problems or his father's extramarital affair as possible motives.
"You just have to present arguable grounds of appeal" to convince a justice of the Court of Appeal to grant bail pending appeal, stressed Hicks.
"You just have to say, 'Here's something that, you know, we can stand up and argue.'"
"It's not that money talks, it's that merit talks," said Hicks, who has been following the Oland case and read Walsh's 204-page charge to the jury.
"My experience — and I do a lot of appellant work in the Court of Appeal of Ontario — I would be very confident of bail in this matter."
Hicks contends the judge's instructions were "weak" regarding the noises Anthony Shaw heard coming from the victim's office around 7:30 p.m. or 7:45 p.m. — around the same time Oland was seen on video surveillance shopping with his wife in Rothesay.
The jacket is "very much a live issue," said Hicks.
Nicole O'Byrne, an associate law professor at the University of New Brunswick, who has also been following the Oland case, maintains bail is far from a sure bet.
"It's up to the judge to weigh the considerations outlined in the Criminal Code and make a decision based upon the relevant factors in this particular case," said O'Byrne.
"In R. v. Khan (1998) it was ruled that bail for the offence of murder should only be granted in exceptional circumstances, such as where the appeal has high merit and there is excessive delay in scheduling the appeal which is not the fault of the appellant. In R. v. McAuley (1997), the court held that although a first-degree appeal was not frivolous, the maintenance of confidence in the administration of justice required the accused to establish a persuasive case for release," she said.
"The criminal law depends on context and judgment. This gives it flexibility but not predictability in certain measure."
The body of Richard Oland, 69, was discovered lying face down in a pool of blood in his Saint John investment firm office on July 7, 2011.
The multimillionaire had suffered 45 sharp and blunt force injuries to his head, neck and hands. No weapon was ever found.
His only son, Dennis Oland, was the last known person to see him alive during a meeting at his office the night before.
Oland told police he was wearing a navy blazer on the night in question, but video surveillance and witness testimony showed he was wearing a brown jacket.
Bail request to be heard Feb. 12
Oland is scheduled to be sentenced on Feb. 11 and his bail request is scheduled to be heard the following day.
A date has not yet been set for the appeal hearing.
It could take months before the required transcripts of the three-month long trial are complete. Oland's lawyers will then have 15 days to file their written submissions and send a copy to the Crown.
The Crown must also file written submissions.
If the Court of Appeal agrees to quash the verdict, Hicks expects a new trial would likely be ordered.
"There are only certain circumstances under which the Court of Appeal can take the place of the jury and say, 'We're going to order an acquittal,'" such as cases where the identity evidence is weak and won't get any stronger with a new trial, he said.
If a new trial is held for Oland, Hicks believes it would be one of the longest criminal trials in Canada to be retried.
But "what usually happens is … if they send it back for a retrial, there's a huge amount of pressure to resolve the matter," through a plea on a lesser charge, such as manslaughter, rather than go through another lengthy trial, said Hicks.
"This matter may be more difficult because [Oland's] clearly saying, 'I didn't kill my father,'" he said.
It would be up to the Crown whether to pursue the retrial, he added.
Second-degree murder carries an automatic life sentence, but parole eligibility can range between 10 and 25 years.
The jury unanimously recommended the minimum 10 years before Oland can become eligible for parole, but the judge does not have to follow that recommendation.