Dennis Oland defence challenges Crown over possible 'tainting' of expert evidence

Richard Oland likely consumed some alcohol before he was bludgeoned to death, but how long before the killing is unclear, the murder retrial of his son heard Thursday.

Dispute at murder trial over forensic toxicologist's opinion about alcohol found in Richard Oland's urine

Defence lawyer Alan Gold said royal commission decisions have made it clear that expert witnesses should not be given any information that could taint their opinion. (CBC)

Dennis Oland's defence lawyer accused the Crown Thursday of improperly providing information to a forensic toxicologist that risked "tainting" his expert opinion about the alcohol found in Richard Oland's body after he was killed.

Alan Gold introduced emails into evidence at his client's murder retrial from two prosecutors to Dr. Albert Fraser regarding his 2011 report on the urine, blood and eye fluid samples taken from the victim during the autopsy.

Fraser had found a small amount of alcohol in the urine, but none in the blood or the clear gel in the eyeball that fills the space between the lens and the retina, called vitreous humour.

"The low concentration of ethyl alcohol in post-mortem urine along with negative ethyl alcohol findings in post-mortem blood and vitreous [humour] indicates alcohol consumption several hours prior to death," Fraser's report concluded.

In emails between 2014 and 2017, Crown prosecutors Patrick Wilbur and Jill Knee both told Fraser there was no evidence Oland had consumed any alcohol on the day of his death and asked him about other possible explanations.

Fraser subsequently provided three other possibilities, which he also testified to on Thursday, under questioning by Knee.

"I think if I were to do it again, I would say, 'It's consistent with'" alcohol consumption several hours prior to death, rather than "indicates," said Fraser.

Although alcohol consumption would be the most common explanation, a few doses of cough syrup containing alcohol could also produce a positive result, he said.

Alcohol can also occasionally form in the bladder of diabetics, and body decomposition can sometimes endogenously produce alcohol, he said.

Dr. Albert Fraser, a retired forensic toxiologist, testified Thursday about his test results for Richard Oland. (CBC)

But Fraser maintained alcohol consumption was the most likely explanation.

The court has not heard any evidence about whether Oland consumed any cough syrup, there was no evidence of diabetes and the pathologist who performed the autopsy testified earlier this week he noted no signs of decomposition, such as discolouration of the skin.

During cross-examination Thursday, Gold suggested the Crown should not have told Fraser about the lack of evidence of Oland having consumed alcohol.

That's exactly the kind of tainting, biasing information that might subconsciously influence an expert witness.- Alan Gold, defence lawyer

"Do you agree with me sir that as an expert, that kind of fact, alleged fact, which could possibly taint your opinion, should never have been given to you?" he asked Fraser. "You did not need to know that to form your expert opinion did you?"

"​Absolutely, there's no relevance to my investigation at all," replied Fraser, who is now retired.

"That's exactly the kind of tainting, biasing information that might subconsciously influence an expert witness, is that correct sir?" asked Gold.

"I would say it's possible, yes," said Fraser.

On redirect, Knee asked Fraser whether any information she or Wilbur told him affected his report or opinion. He said it did not.

Suggestion of tainting 'totally inappropriate'

Lead Crown prosecutor P.J. Veniot expressed frustration over Gold's 'inappropriate' comments and that he couldn't put Jill Knee on the witness stand to respond directly. (CBC)

As soon as Fraser was finished testifying, lead Crown prosecutor P.J. Veniot  told the court he found Gold's suggestion of any attempts to taint Fraser's opinion "totally inappropriate."

He argued the prosecutors' emails were "not much different from what Mr. Gold was trying to get Dr. Fraser to agree to in his questioning — 'What about this?' and 'What about that?'"

Gold countered, saying there have been many decisions dealing with expert evidence that "have made it clear you should not give factual information to an expert that is unrelated to their opinion … because they're human, it may influence their opinion and it's improper to do so."

"Whether it was done intentionally or not, I in no way suggested it. I referred to the taining effect of the information," he told Court of Queen's Bench Justice Terrence Morrison.

Morrison said experts are often asked to "make certain assumptions … Whether those facts are proven true at trial or not is a different situation."

His respect for Knee as an officer of the court, he added, "has not been diminished in any way whatsoever."

Dennis Oland has maintained his innocence from the beginning and members of his extended family have stood by him. (CBC)

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

A jury found him guilty in December 2015, but the New Brunswick Court of Appeal overturned the conviction in October 2016 and ordered a new trial, citing an error in the trial judge's instructions to the jury.

Oland was the last known person to see his father alive when he went to visit him at his office at 52 Canterbury St., on July 6, 2011, around 5:30 p.m.

The body of the 69-year-old was discovered in the office the next morning, lying face down in a large pool of blood. He had suffered 45 sharp- and blunt-force injuries to his head, neck and hands.

No weapon was ever found and the only item missing from the office was the victim's cellphone, which last pinged off a cell tower in Rothesay, near the Renforth wharf where Oland had stopped on his way home from visiting his father around the time he would have been there.

Earlier in the day, while the victim was at work, the cellphone had connected with a tower near his uptown Saint John office.

Gold was laying the groundwork Thursday for the defence's position that Richard Oland might have left his office with his cellphone to have a drink after his son's visit.

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

He asked the forensic toxicologist if the alcohol results were consistent with Oland consuming alcohol an hour before he was killed.

It would be more than an hour, said Fraser, noting it takes about three hours for the blood results to come back negative.

What if Oland only had a few sips? Gold asked. It still has to be processed by the body, replied Fraser.

Gold persisted. He suggested "some previous historical consumption of alcohol is the obvious conclusion to reach in this case," given the facts. Fraser agreed.

Richard Oland's secretary Maureen Adamson previously testified she did not see him drink any alcohol on July 6, 2011, the day police believe he was killed, and he did not keep any alcohol in the office, other than an old can of Alpine beer.

She did not see him leave the office all day and she left only briefly over the lunch hour that day to pick him up a pizza and can of Coke, she said.

Several Crown witnesses, however, including Adamson, testified there was a "vile" odour at his office when his body was found.

The videotaped statement Dennis Oland gave to police the day his father's body was discovered was also played in court Thursday.

The retrial is scheduled to resume Tuesday at 9:30 a.m.