New Brunswick

Officer at centre of Dennis Oland mistrial controversy gets promotion

A Saint John police officer, whose "improper" background checks on prospective jurors in the murder retrial of Dennis Oland led to a mistrial being declared, has been promoted.

Sean Rocca, constable who conducted 'improper' background checks on jurors, jumps to staff sergeant

Const. Sean Rocca had been the Saint John Police Force's file co-ordinator on the Richard Oland homicide investigation since October 2011. (CBC)

A Saint John police officer, whose "improper" background checks on prospective jurors in the murder retrial of Dennis Oland led to a mistrial being declared, has been promoted.

Const. Sean Rocca, who is facing a professional conduct investigation, jumped over the rank of sergeant to become a staff sergeant last week, force spokesperson Insp. Tanya LeBlanc confirmed.

Rocca is "well respected in the community and within the Saint John Police Force," LeBlanc said in an emailed statement.

She declined further comment, citing the pending review.

Just two months ago, Rocca found himself at the centre of controversy when Court of Queen's Bench Justice Terrence Morrison discharged the 16 jurors selected for Oland's retrial, saying the selection process had been "irreparably" tainted by the officer's database searches.

Morrison is presiding over a new judge-alone retrial instead, which began on Nov. 21 and is scheduled to continue on Tuesday at 9:30 a.m.

Oland, 50, is being retried for second-degree murder in the 2011 bludgeoning death of his father, multimillionaire Richard Oland. 

Rocca, a 16-year veteran of the force, has not spoken publicly about the matter, but a redacted court transcript of his testimony during a locked-door hearing Nov. 5 reveals he stands by his actions.

Under the provincial Jury Act, people convicted of offences under the Criminal Code, the Narcotic Control Act or the Food and Drugs Act are ineligible to serve unless they have obtained a pardon.

Rocca told the court he used the force's database, known as the Crime Management System, or CMS, which shows any interactions people have had with city police, to check whether potential or sworn jurors had a criminal record.

"I didn't see anything wrong with that whatsoever," Rocca said.

He has performed similar searches for other jury trials he's been involved with, including Oland's first trial in 2015, he said.

Oland's defence team argued it could be perceived as "juror shopping" and could call into question the jury's eventual verdict.

Dennis Oland, 50, has been free on bail, living in the community under conditions since October 2016, when the Court of Appeal overturned his conviction and ordered a new trial. (CBC)

The Crown and police are allowed to conduct limited background checks to determine if a potential juror has a criminal record. But the judge found some of Rocca's searches for Oland's retrial "went beyond looking for 'arrest flags' which might shed light on a criminal record."

In 2012, "in no uncertain terms the Supreme Court of Canada condemned the practice of using police databases to conduct inquiries of potential jurors outside legitimate permissible checks for criminal records to determine juror eligibility," Morrison said in his written decision.

Rocca testified his sole purpose was to check for criminal records.

"You think all of this was permissible to this day, right, what you did?" defence lawyer Michael Lacy asked Rocca during cross-examination at the closed hearing.

"Yes," replied Rocca.

"Yeah and you've never been trained otherwise, is that correct?" asked Lacy.

"No."

'Abundance of caution'

Rocca, who sat with the Crown during jury selection Oct. 29-31, said he used his laptop in the courtroom to search the names of potential jurors on CMS.

The internal database tracks any contact a person has had with Saint John police — whether as a complainant, victim, witness, suspect or an accused — but if someone has been arrested, a flag pops up on the top left side of the screen, while information about any dealings with police appears at the bottom, he said.

If an arrest flag popped up, Rocca said, he would "prompt" Crown prosecutor Derek Weaver, so he could check the provincial Justice Information System, or JIS, database on his own laptop to see if the person had a criminal record.

Nobody asked me to do it, I did it on my own.- Sean Rocca, Saint John police officer

Rocca, who was also running a PowerPoint presentation of questions for prospective jurors during the challenge for cause process, said he missed checking some of the names and noticed "a few" prospective jurors didn't initially disclose they had a criminal record.

So on Nov. 1, after jury selection was complete, Rocca said he decided to run the names of the 14 sworn-in jurors and two alternates "out of an abundance of caution" to verify none had a record. 

"Nobody asked me to do it, I did it on my own."

Neither the Crown nor the defence were aware Rocca was doing the CMS searches, according to the court documents. They found out later when Rocca advised the Crown of what he had discovered about two of the sworn jurors and testified about his previous searches of prospective jurors.

Details redacted

The details of what Rocca discovered have been blacked out of the transcript, but it involved "prior contact with members of the Saint John Police Force" and prompted the Crown to file an application to have one of the two jurors excused and replaced by an alternate.

"The first thing that I saw was in relation to juror [redacted] and I saw that [redacted]. So I checked that matter," Rocca testified, the transcript shows.

"I didn't read the file in, you know, in its entirety but I did see that [redacted] was one of the entries in this particular file and so I just checked and I confirmed that [redacted] had, in fact [redacted] and that the juror was [redacted.]"

When he checked the other juror, there was no arrest flag at the top of the screen, but he "glanced down" and saw there was one entry for the person. "The nature of the entry caught my eye," he said.

"So I opened that file and … I immediately saw my name on the file but I also saw [redacted] name."

Rocca said he didn't recall the file and hadn't recognized the juror in court, so he opened another entry "and saw that he had [redacted].

"And so this, to me, would have been much more lengthy contact with [redacted] at the time, and so my concern was that he was one of the names read aloud by Justice Morrison" to prospective jurors as possible witnesses in the trial and possible conflicts of interest.

That's when he notified the Crown, he said. The Crown immediately instructed him to stop conducting searches and disclosed his searches to the defence, according to court records.

Limitations of databases

With CMS, the only way to determine if an arrest flag ultimately resulted in a criminal record is to go into the next "layer" of the system and check the details, Rocca told the court.

And just because someone doesn't have an arrest flag associated with their name doesn't necessarily mean they don't have a conviction, he said. CMS is only as reliable as the inputted information.

"There's been a lot of situations that I've been involved in where there isn't an arrest screen for people that have been charged and have been convicted," said Rocca.

Oland's defence lawyer argued the most appropriate source for criminal record searches would have been either the Canadian Police Information Centre, or CPIC, which requires police to log in using their credentials and creates an audit trail, or the provincial system — not the Saint John police database, which contains "all kinds of extraneous information."

Rocca testified he didn't have access to either of the other systems when he searched prospective jurors in the courtroom, or when he searched the sworn jurors at the Crown's office.

He agreed he could have walked across the street to police headquarters after jury selection was complete and logged into a computer that did have access to the national or provincial systems but said they also have their limitations.

Dennis Oland's defence lawyer Michael Lacy argued the 'obvious' place to look for criminal records would have been the provincial Justice Information System or the Canadian Police Information Centre, not the Saint John Police Force's internal database. (CBC)

The CPIC, for example, only lists convictions when an offender has been fingerprinted, said Rocca.

"So there's all kinds of people that — when you run them on CPIC have criminal records but they can come back as not having any criminal record," said Rocca, adding it took him "several years" on the job to realize this.

In order for a conviction to be registered, fingerprints must be obtained under the Identification of Criminals Act, which only allows for fingerprints to be taken in cases of indictable or hybrid offences, RCMP spokeswoman Michelle Schmidt confirmed to CBC News. Less serious summary conviction offences are only included in the national repository if they are part of an occurrence involving an indictable or hybrid offence.

JIS only lists convictions that originated within New Brunswick, said Rocca, which New Brunswick Department of Justice spokesman Robert Duguay confirmed.

Rocca said Saint John police routinely check all three systems to confirm whether someone has a criminal record and commonly start with CMS because it may reveal a conviction not captured by the other two databases.

"You were checking for contact that would give rise to a concern on your part, that someone might not be a particularly favourable juror for the Crown, isn't that right?" alleged Oland's defence lawyer.

"No, I was checking for criminal records," Rocca said.

Richard Oland, 69, was found dead in his Saint John office on July 7, 2011. (Canadian Yachting Association)

The New Brunswick Police Commission plans to review the force's involvement in the jury selection process for Oland's retrial once all criminal proceedings are completed.

The Saint John Board of Police Commissioners requested the independent investigation of Rocca's actions.

Rocca had been an investigator in the Oland case since July 7, 2011, the day the victim's body was discovered, and he became the file co-ordinator in October 2011.

"I am pleased to be part of a progressive leadership team and looking forward to serving the members of the Saint John Police Force and our community in my new role," Rocca said in an emailed statement to CBC News.

Rocca was one of three constables promoted to staff sergeant during a ceremony held Jan. 9. The other two were Michael Young and Sarah Hobbs.

"The Saint John Police Association wishes these officers the best in their new management roles," Const. Duane Squires, president of the union, said in an email. He declined further comment.

A jury found Dennis Oland guilty of second-degree murder in 2015, but the New Brunswick Court of Appeal overturned his conviction and ordered a new trial, citing an error in the trial judge's instructions to the jury.

Oland was the last person known to have seen his father alive when he visited him at the office at 52 Canterbury St. on the evening of July 6, 2011.

The body of Richard Oland, 69, was discovered in the office the next morning, face down in a pool of blood. He suffered 45 sharp- and blunt-force injuries to his head, neck and hands. No weapon was ever found.

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