FREDERICTON — It's rare for a defence lawyer to seek bail for a convicted murderer pending appeal - and even more rare for a judge to grant it - but lawyers for Dennis Oland are hoping their application will beat the odds on Wednesday.
Bail under such circumstances has never been granted for a convicted murderer in New Brunswick, and only 21 times in Canadian history.
"The standards are so high to meet the test that usually defence counsels don't attempt it, and they just let their client sit in jail pending appeal, and then they hope for the best on appeal," said Nicole O'Byrne, a law professor at the University of New Brunswick.
Dennis Oland, 48, was sentenced last week to life in prison with no chance of parole for at least 10 years for the second-degree murder of his father, millionaire businessman Richard Oland.
The elder Oland was found bludgeoned in his Saint John office in July 2011. He had suffered 45 blunt and sharp force blows to his head, neck and hands. No murder weapon was ever found.
In their notice of appeal, the defence argues that the verdict was "an unreasonable verdict in law and not one that a reasonable jury, properly instructed, could judicially have arrived at."
They ask the court to allow the appeal, quash the conviction and direct a verdict of acquittal or order a new trial.
Last week, defence lawyer Alan Gold told the Court of Appeal that bail should be granted because the grounds of appeal were not frivolous and should be judged on the merits by an appellate court.
He said there were questions of law that need to be reviewed.
O'Byrne said the best example is the brown sports jacket Oland wore the night his father was killed. Experts testified at trial the jacket bore tiny spots of Richard Oland's blood.
"Whether that was admitted or not would make a big difference in the outcome of the case," O'Byrne said.
She said Gold made the case that when his client was previously on bail, he met the conditions and proved he was not a flight risk.
"(Oland) doesn't have a former criminal record, they have 70-plus letters of support from the community, and family members have put up a $400,000 surety to guarantee his bail. That's unusual, that set of circumstances," O'Byrne said.
Gold argued that it would take months to prepare the written transcript from the trial, so it would probably be October at the earliest before an appeal could be heard.
But the Crown made the argument that it's not in the public's interest to have a convicted murderer released into the community unless there were exceptional circumstances.
O'Byrne said that's what makes cases like this so rare in Canada.
"Those 21 cases that they referred to — the seven wrongful conviction cases were very high-profile cases — and then you've got Robert Latimer and cases such as that. This is extremely rare for this application to have even been made," she said.
"It is up to the appeal court judge, who is hearing this application, to balance the interests of the accused and that of the public interest."
Justice Marc Richard is to deliver his decision Wednesday afternoon.
