Dennis Oland's Supreme Court bail appeal attracts 4 intervener requests

The attorneys generalof three provinces and a provincialcriminal lawyers' association want to weigh in onDennis Oland's bail appeal to the Supreme Court of Canada.

Ontario, Alberta, British Columbiaand 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, andhave 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 theAttorney General for Ontario, states in an affidavit filed in support of themotion to intervene.

The issuesinclude 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, andthe standard by which decisions made to detain or release,both pending appeal and pending trial, will be assessed.

• Dennis Oland's lawyers file bail appeal arguments to Supreme Court

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,"Tweneystates.

"As a general proposition, very serious offences demand very strong grounds of appeal before bail will be considered."

The outcome of theOlandcase will have a "significant impact" in Ontario,"the most populous province in Canada, with the greatest volume of activity in the criminal courts,"Tweneyargues.

"Given the large number of post-conviction applications for release in Ontario, any reconsideration of the framework developed and appliedwill have a significant impact on the regime currently applied in the province. Accordingly, Ontario wishes the opportunity to lend its voice to this important discussion."

Christine Rideout,an agent of the attorney generalof Alberta, also contends the grounds of appeal is "a crucial factorin 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," Rideoutstates 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 presumedinnocent 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 theNew 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," wroteMichael Lacy, a vice-president of the association, whichrepresents 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 generalare 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 intervenershave requested permission to file written arguments,not exceeding 10 pages, and to make oral submissions, not exceeding 10 minutes.

Defence opposes motion by AGs

Oland'slawyers filed a response late Fridayopposing the motions to intervene by the three attorneys general.They argue interventions are intended to assist the court by providing additional perspective and proposed interveners must demonstrate their submissions will be "useful and different" from those of the other parties.

Theattorneygeneral of New Brunswickis already a respondent and a main party in the matter. The other three "have no different or greater expertise" and their positionsare "mainly repetitive," the defence states.

In addition, if the three other attorneysgeneral 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 applicationby the Criminal Lawyers' Association.

'Model candidate'

In their written arguments, filed with the Supreme Court on Aug. 29,Oland's lawyerscontend his conviction was "a very close one" that could ultimatelybe deemedwrongfuland he should be released from custodypending his appeal.

They have described him as"model candidate" whoposes no threat to public safety and contend hisrelease would not undermine the public's confidence in the justice system.

New Brunswick Crown prosecutors Kathryn Gregory and Derek Weaver did not file anyresponse 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 theappeal of hissecond-degree murder conviction, currentlyslated 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 sentencedto life in prison with no chance of parole for at least 10 years.

He has been in custody since Dec. 19, when ajury 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 beforeand there have only been 34 such cases across Canada, according to the defence.

On Feb. 17, Court of AppealJustice J.C. Marc Richard rejected Oland's bail request, ruling "theconfidence 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 includedChief Justice Ernest Drapeauupheld that decision. Drapeausaid 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 weaponwas ever found.

His son, Dennis Oland, was the last known person to see his father alive during a meeting at his investment firmoffice the night before.