Dennis Oland's Supreme Court bail appeal attracts 4 intervener requests
Ontario, Alberta and B.C. AGs and a criminal lawyers' group file motions in New Brunswick murder case
The attorneys general of three provinces and a provincial criminal lawyers' association want to weigh in on Dennis Oland's bail appeal to the Supreme Court of Canada.
Ontario, Alberta, British Columbia and the Criminal Lawyers' Association of Ontario all contend they have an interest in the matter, scheduled to be heard by the country's highest court on Oct. 31, and have filed motions for leave to intervene.
Oland's lawyers are appealing a New Brunswick court decision to twice deny him bail while he appeals his second-degree murder conviction in the 2011 bludgeoning death of his father, Saint John multimillionaire Richard Oland.
"The issues raised in this [bail] appeal are of significant national and public importance," Gregory Tweney, acting director of the Crown's office of the Ministry of the Attorney General for Ontario, states in an affidavit filed in support of the motion to intervene.
The issues include the proper test for bail pending appeal and, in particular, when and to what extent the courts should consider the strength of the underlying grounds of appeal as part of the "public interest" component of the test, and the standard by which decisions made to detain or release, both pending appeal and pending trial, will be assessed.
If granted leave to intervene, "it will be Ontario's position that reasonable members of the public expect that sentences imposed for all crimes, but particularly for more serious offences, will be enforced when handed down," Tweney states.
"As a general proposition, very serious offences demand very strong grounds of appeal before bail will be considered."
The outcome of the Oland case will have a "significant impact" in Ontario, "the most populous province in Canada, with the greatest volume of activity in the criminal courts," Tweney argues.
Christine Rideout, an agent of the attorney general of Alberta, also contends the grounds of appeal is "a crucial factor in assessing the public confidence component of the public interest."
Oland's lawyers' position that an appellant need only have arguable grounds, rather than serious grounds, to be considered for bail pending appeal "ignores the seriousness of the offence," Rideout states in her affidavit.
"The adoption of such a standard would mean that a convicted appellant's entitlement to bail is essentially the same as an untried accused's," she argues.
'Strong grounds' required
"There is no principled reason why a convicted appellant should have a broader scope of review than an untried and presumed innocent accused. Arguably, a more stringent standard should apply."
Similarly, John Gordon, deputy director of the criminal justice branch of the Ministry of Justice and Attorney General of British Columbia, contends "there ought to be no question that very strong grounds of appeal" are required in murder cases, "given the seriousness of the offence and the level of public interest engaged."
"Placing the onus on the now-convicted murderer, who is presumed validly convicted unless and until an appellate court says otherwise" is appropriate, Gordon states in his affidavit.
'Balanced perspective' important
The Criminal Lawyers' Association of Ontario, however, contend "there appears to be reluctance" by the New Brunswick Court of Appeal to grant bail pending appeal in homicide cases.
"We are of the view [that] is inconsistent with the robust bail pending appeal tradition in Canada," wrote Michael Lacy, a vice-president of the association, which represents more than 1,000 lawyers.
"Although there is no presumption of innocence in the bail pending appeal context, liberty interests as protected by s.7 of the Charter are very much in issue."
If the three attorneys general are granted leave to intervene, Lacy contends it will be important for the Supreme Court to also hear from his organization "to have a balanced perspective."
All of the prospective interveners have requested permission to file written arguments, not exceeding 10 pages, and to make oral submissions, not exceeding 10 minutes.
Defence opposes motion by AGs
The attorney general of New Brunswick is already a respondent and a main party in the matter. The other three "have no different or greater expertise" and their positions are "mainly repetitive," the defence states.
In addition, if the three other attorneys general are granted leave to intervene it "could potentially create" an "imbalance of representation" in favour of the New Brunswick Crown, Alan Gold, Gary Miller and James McConnell argue.
They do not oppose the application by the Criminal Lawyers' Association.
In their written arguments, filed with the Supreme Court on Aug. 29, Oland's lawyers contend his conviction was "a very close one" that could ultimately be deemed wrongful and he should be released from custody pending his appeal.
They have described him as "model candidate" who poses no threat to public safety and contend his release would not undermine the public's confidence in the justice system.
New Brunswick Crown prosecutors Kathryn Gregory and Derek Weaver did not file any response to the motions to intervene by Friday's deadline, according to Supreme Court officials.
There is no set timeline for the Supreme Court to decide whether it will grant the proposed interveners the right to file written arguments and/or oral arguments.
Although the Supreme Court agreed to expedite the Oland's bail appeal, it is currently scheduled to be heard after the appeal of his second-degree murder conviction, currently slated for Oct. 18-21 in the Court of Appeal in Fredericton.
Bail in murder appeals rare
Oland, 48, has been seeking release since Feb. 12, the day after he was sentenced to life in prison with no chance of parole for at least 10 years.
He has been in custody since Dec. 19, when a jury found him guilty following a three-month trial in Saint John's Court of Queen's Bench.
No one convicted of murder in New Brunswick has ever been granted bail before and there have only been 34 such cases across Canada, according to the defence.
On Feb. 17, Court of Appeal Justice J.C. Marc Richard rejected Oland's bail request, ruling "the confidence of the public in the administration of justice would be undermined" if a convicted murderer were to be released pending appeal.
A three-justice panel that included Chief Justice Ernest Drapeau upheld that decision. Drapeau said he was "duty bound" to do so, but remarked Oland's grounds of appeal of his conviction "appear to be serious."
Under the Criminal Code, bail may be granted pending appeal if the appeal is not frivolous, the convict will surrender into custody when the time comes, and his detention is not necessary in the public interest.
Richard Oland, 69, was found beaten to death in his Saint John office on the morning of July 7, 2011. He was lying face down in a pool of blood with 45 sharp and blunt force injuries to his head, neck and hands. No weapon was ever found.
His son, Dennis Oland, was the last known person to see his father alive during a meeting at his investment firm office the night before.