FREDERICTON (GNB) – The following statement was issued today by Public Prosecution Services regarding the Dennis Oland court case and the decision not to appeal:

“The ultimate aim of any trial…must be to seek and to ascertain the truth.”

R. v. Nikolovski, [1996] 3 S.C.R. 1197

This search for truth is qualified however by other laudable principles upon which our system is based: the presumption of innocence, the principle of reasonable doubt, fair process, the prohibition against double jeopardy, among many. Public Prosecution Services pursues the truth in every trial and appeal process but we do so simultaneously as guardians of these equally important principles upon which our system is based.

It is within this context that Public Prosecution Services has carefully reviewed the 146 page / 297 paragraph decision of Justice Morrison relating to the acquittal of Dennis Oland in the murder of his father, Richard Oland. After having reviewed and assessed both the policy and legal considerations relevant to a possible appeal, Public Prosecution Services has determined that there is no basis upon which the Crown can appeal the acquittal of Dennis Oland.

Despite the search for the truth in the trial, Justice Morrison could not be certain that Dennis Oland murdered Richard Oland. The resulting acquittal, resting on this finding of reasonable doubt, is the equivalent of a finding of “legal” innocence. A finding of legal innocence calls into play several principles that the Crown must consider and abide by when contemplating an appeal. 

There is a limited avenue for the appeal of an acquittal in our system of justice. Identifying an error of law alone on the part of the trial judge is not sufficient. Any error of law identified must be such that it would satisfy the appellate court that the error might reasonably have had a material bearing on the acquittal. This is considered to be a high standard to meet, described by the Supreme Court of Canada as the error being such “…that there is a reasonable degree of certainty that the outcome might well have been affected by it.”

This limited avenue for appeal of an acquittal is justified by the regard had for the prohibition against “double jeopardy.” We recognize this principle in Canada through s. 11(h) of the Charter. It states that individuals have the right not to be tried again for an offence for which they have already either been acquitted or convicted and punished.

This is not interpreted to mean that the Crown cannot appeal an acquittal, but the limitation thereon is the Canadian way of giving expression to this principle. 

It can never be known in advance how evidence will be interpreted by the fact-finder at trial. In this case, Justice Morrison, was impacted by the “alibi-like” evidence relating to the “guesstimates” of the time of death of Richard Oland. Consequently, his decision erects a complete barrier to an appeal by the Crown. Alibi and “alibi-like” evidence is unique; it requires the specific application of the doctrine of reasonable doubt. Unlike other pieces of evidence, alibi evidence is determinative in itself of the final issue of guilt or innocence. It may take many forms but it has only one meaning: “It is an assertion that when the alleged unlawful conduct took place, the person charged with it was elsewhere, and thus it was impossible for him or her to have committed the offence.”

An acquittal based on reasonable doubt regarding alibi or alibi-like evidence is precisely how the presumption of innocence is exemplified. Any reasonable doubt regarding this evidence goes to the benefit of the accused and must result in an acquittal. There was no error of law relating to this evidence nor is there a lawful basis to contest the reasonableness of Justice Morrison’s assessment of the Crown time-of-death evidence linking Dennis Oland as the murderer. The “reasonableness” of an acquittal is not an available ground of appeal for the Crown. Thus, Justice Morrison’s finding of reasonable doubt related to the alibi-like evidence and the resulting acquittal in this case are unassailable by the Crown.