Oland Mistrial Shows how easy it is for Police to Breach the Charter

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When looking at the actions of the Crown and police in the wake of a high profile homicide, it is startling to realize how precarious things can quickly become for them. Relatively minor transgressions that would go unnoticed anywhere else become fodder for both the defence and the news media. They’re not used to this many people paying attention. When the homicide happens in a small community that isn’t used to investigating murder on a regular basis — let alone one that’s doggedly covered by the media — investigation and prosecution of crimes can be laden with evidentiary slip-ups and legal errors that prejudice their investigations against the public and the law alike. Such is the case in the murder of Richard Oland, millionaire and sixth-generation scion of the Moosehead Brewery empire in Saint John, New Brunswick.

Oland was brutally murdered in his office in 2011, and his son Dennis, also a prominent businessman, quickly became the prime suspect. He was charged nearly two years later with second degree murder and eventually found guilty in a trial by jury. He successfully appealed on the grounds that the trial judge did not properly instruct the jury about a key piece of evidence. A new trial was ordered. The case received national attention, easily becoming one of the most prominent criminal cases in New Brunswick history, with the attention to and seriousness of the crime arguably overwhelming the police of a city that has a homicide rate of 2.4 per year.

Cut to 2018 and the process began again. Jury selection was once again held inside of a hockey arena to pare down the pool of 5 000 potential jurors. Almost as soon as the trial began, proceedings moved in camera for two weeks due to an ‘unexpected legal issue.’ Then, two days ago, Trial Judge Terrence Morrison announced that the issue was serious enough to declare a mistrial. It turns out that in the process of jury selection, Saint John police Constable Sean Rocca screened potential jurors using the police force’s Crime Management System. This meant that the police were able to view the history of any interactions a potential juror may have had with police, be it as a complainant, victim, accused, informant, or otherwise. Since this happened before the Crown issued its peremptory challenges, there’s a possibility that this information could have been used prejudicially against the defence, with the Crown being potentially able to exclude prospective jurors who have had negative interactions with the police. Morrison J addressed this, expressing concern that allowing the trial to continue would be doing so under a “cloud of tainted jury selection process” and impact Oland’s 11(d) Charter right to a fair trial.

It’s useful to take a step back and examine how this might have happened. First, there is a limited right for police to screen potential jury members for prior criminal convictions (people who have been charged criminally are ineligible to serve on New Brunswick juries). Thus, instead of being a black-and-white issue, it is a matter of degrees. This can be combined with the fact that the same Constable engaged in the same practices during Oland’s first trial without reprimand, perhaps leading him to believe there was nothing wrong with doing this. Finally, while police receive some training to ensure their actions comply with the Charter, they aren’t expected to keep up with every common law development of how the Charter is applied. If they were, Rocca may have been made aware that the type of screening he engaged in was deemed improper by the Supreme Court in 2012. In light of all of this, it’s easy to see how Rocca would have believed that the screening he engaged in wasn’t breaking any rules. To the prosecution’s credit, they advised Rocca to stop engaging in screening as soon as they discovered it was happening. But by then it was too late.

The trial will now proceed by judge alone, a situation the defence has wanted for at least a year, citing widespread prejudice against Oland among the jury pool given the case’s high profile. Now that they have gotten their wish, it appears as though the likelihood of an acquittal has increased. The police investigation of the murder was riddled with chain of custody and evidence-handling issues that would bolster Oland’s chances in front of a judge who will presumably have a firmer grasp on the presumption of innocence. This should be a cautionary tale to all state actors in the criminal justice system — the investigative and prosecutorial powers of government are only and strong as their weakest link. When that link fails to notice that they’re breaching the Charter, their entire case may fall apart.

This blog post was written by a CCLA Volunteer. Opinions expressed do not necessarily reflect the views of the CCLA.