Legally Conned

Legally conned: Canadian courts wrongly insist there’s a difference between lies and ‘concocted lies’

The Dennis Oland murder verdict was thrown out thanks to an illogical legal theory that’s been sowing confusion in Canada’s courts and undermining jury decisions for decades

It was a murder case that had Maritimers fixated. Dennis Oland, whose wealthy family founded Moosehead brewing, was accused of bludgeoning his father Richard to death in 2011. The trial, which took place in the fall of 2015, was one of New Brunswick’s longest and most expensive. Over the course of three months, 47 witnesses testified, including Oland himself, and 236 exhibits were entered into evidence. The jury deliberated for four days before finding the accused guilty of second degree murder.

Dennis Oland blood stained Jacket
This blood stained brown Hugo Boss jacket was at the centre of the controversy

“Oh no, oh no,” Dennis Oland wept aloud after he heard the verdict. “Oh God! Oh my God!”

Two months later, he was sentenced to life in prison with no chance of parole for 10 years. He served 10 months before the New Brunswick Court of Appeal overturned the jury’s verdict, ordered a new trial and released Oland on bail in October 2016. For many, the appeals court decision was vindication of what they had argued all along, that Dennis Oland was not guilty, but, for others, it simply confirmed their belief that the wealthy can get away with almost anything including murder. (If you’d like a quick backgrounder on this case, check out the Fifth Estate documentary, Murder in the Family.)

Despite the notoriety of the Oland murder, there’s been next to no public discussion about the legal issue that caused the verdict to be overturned, and which New Brunswick prosecutors have described as a “narrow and contentious point of law.” What’s more, this same issue has been causing problems across the country for decades. Oland was far from the first murder conviction to be quashed for reasons that are not just hard to understand but fundamentally make no sense.

Oland told police he wore a blue blazer

In the case of R. v. Dennis Oland, the supposedly controversial evidence involves the jacket Oland wore on July 6, 2011, the day his father was murdered at his office in Saint John. Oland told police he was wearing a navy blazer, but video from security cameras showed him dressed in a brown Hugo Boss sports jacket, and a witness also testified that he had worn a brown jacket when he visited his father on the day of the murder. Despite the fact that the jacket had already been dry cleaned when it was seized by police, it still had four small bloodstains on it, all of which were eventually tested and found to contain DNA matching Dennis’s father’s profile.

In his instructions to the jury, the trial judge, Jack Walsh, said it was up to the jurors to decide whether Oland’s testimony, in which he explained that he had forgotten what he was wearing the day before, “was an honest mistake or an ‘intentional lie’ that was related to the commission of the offence charged.”

So far, so good. That is the jury’s job. They are supposed to deal with questions of fact like whether or not witnesses are lying, while it is up to the judge to handle questions of law like what evidence to admit or exclude.

What bothered the appeals court judges was what Walsh said next, which is quoted here with the original edits of Chief Justice Ernest Drapeau, who wrote the decision. Walsh told the jury that an “intentionally false statement […] will, in some circumstances, be evidence from which it can be inferred that the [author] is attempting to mislead the police and deflect suspicion away […] because [he or she] actually committed the offence.”

Lies vs. concocted lies: is there a difference?

In non-lawyer speak, that means if the jury thinks Oland lied about which jacket he wore, they can consider his falsehood as part of the evidence of his guilt. Now, although this might seem completely non-controversial and commonsensical to non-lawyers, it provoked the appeal judges to declare a mistrial because Walsh “did not explain to the jurors that, even if they found [Oland’s] erroneous statement was a lie, it had no probative value unless they concluded, on the basis of other evidence independent of that finding, that the lie was fabricated or concocted to conceal his involvement in the murder of his father.”

At this point you’re probably going to have to stop and reread and then reread another time. After that, if you’re anything like me, you’ll have a reaction that is something along the lines of “WTF!? All lies are, by their very nature, concocted.” You will then wonder in astonishment whether this can really be the “serious error of law” over which three high court judges threw out a jury verdict from a three-month long jury trial.

Let’s deal with the latter question first. Since the seventies, courts in Canada have decided that certain types of behaviour, now labelled as “post-offence conduct,” can be, as Justice Drapeau puts it, “easily exaggerated and their occurrence misapplied, particularly by non-jurists.” Translated into regular English this means that, according to this country’s finest legal minds, regular people like the members of the jury, are gravely in danger of jumping to the conclusion that because Dennis Oland lied about his jacket, he must have killed his father. For some unspecified reason, they will likely forget all the other evidence they heard over the three months of trial and pay next to no attention to the judge’s instructions.

To remedy this hypothetically precarious state of affairs and prevent non-jurists from automatically leaping to guilty verdicts in the face of post-offence conduct evidence, Justice Drapeau noted that  “the law has developed rules that seek to safeguard against the risk of any prejudicial impact on trial fairness.” Unfortunately for Justice Walsh, he neglected to inform the Oland jury of these convoluted rules. As a result, wrote Drapeau, “his instructions on a key piece of the evidential puzzle are fundamentally flawed” to the point that the verdict must be thrown out and a new trial held.

What follows is the framework Drapeau and his colleagues, Kathleen Quigg and Margaret Larlee, maintain Walsh should have have set out for the jury. Please be warned you will likely need to read it several times:

(1) a false alibi or a lie, without more, is not evidence that can assist the prosecution in establishing guilt;

(2) a false alibi or a lie may constitute incriminating evidence if and only if, in addition to being an intentional falsehood, it was fabricated or concocted by the accused for the purpose of concealing his or her involvement or participation in the offence charged. A fabricated or concocted lie is one that is made up after giving it some thought; as such, it is distinguishable from a spontaneous unreflected or unconsidered lie;

(3) in this context, a finding of fabrication or concoction cannot be made simply because the accused lied; there must be other evidence, independent of that finding upon which the trier of fact can find fabrication or concoction; and

(4) instructions reflecting the foregoing are essential and they must be accompanied by a reference to the independent evidence from which the jury might reasonably infer fabrication or concoction.

A body of law built on a false distinction

This framework was not invented by the three judges of the New Brunswick appeal court but rather has been cobbled together by a whole bunch of judges across the country in over four decades worth of rulings that will make your head spin. Not only have  appeals court judges created a classic distinction-without-a-difference legal theory—lies versus concocted lies— they’ve also come up with guidelines for the jury on how to spot this fake distinction, and formulated exactly what type of evidence the jury can use to decide that a lie is concocted as opposed to just a regular, ostensibly non-concocted lie.

In fairness to the courts, it did not go completely unnoticed that this line of thinking had some fundamental problems. In R. v. Coutts a 1998 decision of the Ontario Court of Appeals, which Drapeau called “one of the leading cases on this subject” Justice David Doherty addressed the issue. “This distinction between statements which are disbelieved and, therefore, rejected and those which can be found to be concocted and capable of providing circumstantial evidence of guilt cannot be justified as a pure matter of logic,” he wrote. “In many, if not most cases, the inference of concoction flows logically from the disbelief of an accused’s statements or testimony.”

Yet despite acknowledging that there is logically no distinction between these two categories, in his very next sentence, Doherty, who is often described as one of the country’s top jurists, states that this non-existent distinction somehow managed to be “fully justified and, indeed, essential” as laid out in R. v. Mahoney.

In reality, Mahoney’s author, Justice John Brooke, did not provide any enlightenment on how to make this “fully justified” distinction. Rather, he quotedout of context, I would arguefrom R. v. Davison, DeRosie and MacArthur, a  passage that he believed stated this distinction exists. Then Brooke built on this to propose a brand new legal test that must be followed as a result.

This “principle,” as Doherty called it, states that before a judge can instruct a jury that a lie can be seen as evidence of possible guilt there must be “extrinsic evidence of fabrication.”

Again, if you are like me, you will ask yourself what exactly this “extrinsic evidence” (also referred to as “independent evidence” in some decisions) might comprise, given that, as Doherty has noted, “the inference of concoction flows logically from the disbelief of an accused’s statements or testimony.” Short of a confession, what is this type of evidence supposed to look like?

This issue also stumped Chief Justice Allan McEachern of the British Columbia Court of Appeal. In R. v. Tessier, a case from 1997, he was one of five judges who  tried to clear up some of the convoluted rules being suggested. “I find it exceedingly difficult to understand how it may logically be correct that fabrication can only be proven by direct evidence, and not by inference from believed, independent evidence, yet that is what the cases seem to suggest,” McEachern wrote in his dissenting opinion in Tessier. As for the jury instructions that Brooke had objected to in R. v. Mahoney and which prompted him to come up with the extrinsic evidence requirement, McEachern wrote that the instructions had made “perfect good sense to me, and I suspect, to most jurors.”

Unfortunately good sense was missing in action as appeals court  judges kept coming up with more and more complex and confusing rules on how the jury must be instructed. Meanwhile defence lawyers were making hay with the fancy new post-offence conduct law as they enthusiastically appealed dozens of cases based on supposedly faulty jury instructions. In Tessier, like Oland, a conviction for murder was thrown out and a new trial ordered. And there were many more examples across the country.

The Supreme Court weighs in, things get worse

Unsurprisingly, in 2002, the whole boiling hot mess landed in the lap of the Supreme Court in R. v. Hibbert, a case where a real estate agent was a victim of a brutal seemingly random attack at an open house held in 1993.  While touring the garage with a male visitor, the woman was struck from behind, beaten, and strangled until she was unconscious. The jury found Hibbert guilty of attempted murder, but the B.C. appeals court quashed the conviction and ordered a new trial saying that the jury had not been properly instructed in the eyewitness identification issues that were crucial to the case. At the second trial, Hibbert was again found guilty and again appealed. His grounds were once again that the judge’s instructions on identification were improper and also the falsehood and fabrication issue that would eventually be raised in Oland.

The B.C. courts dismissed this second appeal, but it was then successfully appealed to the Supreme Court, which threw out Hibbert’s second conviction not on the identification issue but because “the trial judge’s erroneous instructions implied that the jury could find evidence of concoction allowing them to infer that the accused was guilty. This is a serious error that provided the jury with a direct route to guilt,” wrote Justice Louise Arbour. “Despite the circumstantial evidence that points to the accused, it cannot be confidently said that a conviction is a foregone conclusion in the sense that any other reasonable jury would inevitably convict.”

A third trial was ordered.

According to Arbour, the Hibbert judgment was based on “the well‑established position expressed and followed by the courts of appeal …Many have spoken of the need for independent evidence of fabrication above and beyond a finding that the alibi is false.” She noted that that “the only doubt cast on [this position’s] correctness comes from a short sentence in the oral judgment of this Court in R. v. Michaud.”

Arbour, however, declined to specify what form the extrinsic/independent evidence would need to take to allow a jury to accept a false alibi as part of the evidence of guilt. She wrote, “It is unnecessary in this case to determine the nature and scope of evidence necessary to show concoction so as to permit the instructions inviting the inference of consciousness of guilt. Suffice it to say that the cases have consistently pointed out that there must be evidence linking the accused to fabrication and that such evidence cannot emerge from a mere rejection of the alibi tendered. Many have spoken of the need for independent evidence of fabrication above and beyond a finding that the alibi is false.”

Fifteen years later, this lack of direction continues to plague the country’s courts. When the issue came up yet again earlier this year in R. v. Clifford, several intervenors took the chance to ask the supreme court to clarify. They included Canada’s Director of Public Prosecutions (DPP) and the Criminal Lawyers Association (CLA) of Ontario .

In its factum the, the DPP recalled that “the policy that animates the distinction between a disbelieved and a fabricated alibi is the concern that triers of fact will equate disbelief of an accused’s version with guilt and jump automatically from disbelief to guilt.” It did not, however, take any issue with this theory, which has over the years evolved into an article of faith. Nor did the DPP push back even a little bit against the lies and concocted lies distinction without a difference.

Its chief concerns were the lack of clarity as to what evidence is required to show concoction and the dangers of artificially categorizing evidence as to whether it shows disbelief or fabrication. “This is an exercise fraught with difficulties that hardly advances the ultimate goal it is intended to achieve: ensuring that a trier of fact has all probative inculpatory evidence without improperly inferring guilt from disbelief,” the DPP factum stated.

Only in Canada, you say?

It also noted that there is no similar approach taken in either the UK or Australia, and provided a citation from the UK Court of Appeal stating, “It accords with good sense that a lie told by a defendant about a material issue may show that the liar knew that if he told the truth he would be sealing his fate.”

As a solution to the problem Canadian courts have created for themselves, the DPP suggested that “instead of looking for evidence independent from the evidence that discredits the alibi, the focus should be on whether there is evidence of fabrication in addition to that discrediting the alibi. This is a distinction with a difference. (Italics in original)”

Not surprisingly the CLA was of a different mind. While acknowledging that “the essential distinction [between lies and fabricated lies] cannot be explained to jurors in a comprehensible manner,” it was more concerned about the effects of the 2002 case, R. v. O’Connor

In a half-hearted attempt to come to terms with the illogic and confusion that had arisen since R. v. Mahoney, O’Connor proposed, among other things, that juries could “consider evidence of the circumstances in which an accused made an out-of-court statement which is disbelieved as independent evidence to show that the accused fabricated the statement.(Italics mine)”

Muted and limited as this was, it was still an anathema to the CLA, which called O’Connor “a legal innovation, unsupported by any prior authority” while failing to mention that the same criticism could be made of Mahoney, Coutts, Hibbert, etc.

Alas for both the criminal lawyers and the prosecutors, the supreme court dismissed the Clifford appeal in February of this year. “While we appreciate the suggestions of the Intervenors that the law be re-examined, we are not satisfied that such re-examination is warranted in this case, particularly where neither party has asked us to depart from the jurisprudence of this Court,” its judgment said.

As for the Oland case, in July, the supreme court dismissed requests by both the New Brunswick Attorney General and the defence to review the overturning of Oland’s conviction. It did not agree to hear why it should grant the outright acquittal Oland wanted nor was it swayed by prosecutors’ claim that this case was an important example of how, across Canada, the job of the jury is being “usurped” by appellate courts confused about how to deal with false statements and the issue of fabrication.

In their application, New Brunswick prosecutors pointed to R. v. Corbett, a 1988 supreme court decision which stated that “the very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense.”

Dennis Oland’s new trial will likely take place in 2018.

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