R. v. Boland, 2021 NLSC 67

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Boland , 2021 NLSC 67 Date : May 21, 2021 Docket : 202006G0009 Her Majesty The Queen v. BRANDON ALLAN BOLAND Before: Justice Garrett A. Handrigan Place of Hearing: Grand Bank, Newfoundland and Labrador Date(

s) of Hearing: May 13, 2021

Summary: The Court found Brandon Boland guilty of four offences after a lengthy trial: break & entry with intent; mischief causing actual danger to life; possessing stolen goods; and possessing break-in instruments. It remanded Mr. Boland in custody for sentencing and reserved its decision after the sentencing hearing. In the result, the Court sentenced Mr. Boland to 18 months in jail on each of the break & entry and mischief offences and to one month on each of the other offences, all to be served concurrently to one another. It also placed Mr.

Boland on supervised probation for two years from the date he is released from custody. Finally, it exempted Mr. Boland from paying a victim fine surcharge for each of the offences but ordered him to provide DNA samples. Appearances:

Alison J. Manning Appearing on behalf of the Crown Marcus A. Evans, Q.C. Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Boland, 2021 NLSC 27; R. v. Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R. 222, 292A.P.R. 222 (Nfld. C.A.); R. v. Summers, 2018 NLSC 84; R. v. Summerton, 2013 BCCA 545; R. v. Lombardo, 2008 NSCA 97; R. v.Bowser, 2016 NSPC 68; R. v. Van-Luyk, 2018 ONCJ 807; R. v. Hurshman, [1997] N.B.J. No. 285, 35 W.C.B. (2d) 255 (Q.B.); R. v.Barrett, [2020] N.J. No. 271, 168 W.C.B. (2d) 167 (Prov. Ct.); R. v. Park, 2021 CarswellNfld 96, (Prov.

Ct.); R. v.Warford (1988), (NL SC), 70 Nfld. & P.E.I.R. 200, 215 A.P.R. 200 (Nfld. T.D.) STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Handrigan J.: INTRODUCTION [1] On January 30, 2020, Crown counsel filed a Bill of Indictment in this Court charging Brandon Allan Boland with four offencesunder the Criminal Code, R.S.C. 1985, c.

C-46: breaking and entering with intent to commit an indictable offence (s. 348(1)(a));committing mischief that caused actual danger to life to the public (s. 430(2)); possessing stolen goods (s. 354(1)); and possessinginstruments for breaking into a place (s. 351(1)). [2] The Crown elected to proceed by indictment for all charges when Mr. Boland appeared before the Provincial Court onDecember 11, 2019. On January 15, 2020, when the charges were before the same court, Mr. Boland elected to be tried in this Court byjudge alone.

He pleaded not guilty to all charges when I arraigned him on February 20, 2020. [3] I heard the evidence over three days, starting February 1, 2021, and convicted Mr. Boland of all charges on February 25, 2021(R. v. Boland, 2021 NLSC 27). I remanded Mr. Boland in custody for sentencing until May 13, 2021, when I held a sentencing hearingand reserved my decision on sentence until today. Mr. Boland has been incarcerated since the date of his conviction. THE ISSUE [4] Mr.

Boland’s matter raises this issue: What are fit and proper sentences for these offences? the law Sentencing General Principles [5] Any discussion of sentences for criminal offences must start with the statement of principles that appears in

section 718 andthe sections of the Criminal Code that follow it. Those principles encompass broad considerations from denunciation, through deterrence(both specific and general), reparation, rehabilitation, and the general promotion of a sense of responsibility in offenders for the lossesthey cause their victims. [6] Also, of concern are proportionality, the alternatives to incarceration where they are available and appropriate, and the factorsthat mitigate or aggravate the offences.

The overriding consideration throughout these sections is protecting the public, and the challengeis to achieve that protection, in both the legislative context and in the circumstances of the offence. Ultimately, the sentences must fit theoffences and the offender. [7] Communicating to accused persons and others of like mind that they must refrain from criminal activity is one of the primarygoals of sentencing. Denunciation is also important.

Overall, deterrence, and especially general deterrence, and denunciation must bestressed when sentencing offenders who break and enter private property, damage, or destroy that property, especially when the damagethey cause may endanger the public. [8] It is also important to note, as here, any planning and deliberation the accused exercised to illegally enter private property, asMr. Boland did, by equipping himself with the tools to break into the substation compound, strip out copper wire from the groundinggrid and remove it from the compound.

Concurrent or Consecutive Sentences [9] In R. v. Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R. 222, 292 A.P.R. 222 (Nfld. C.A.), Goodridge C.J.N.said that sentences for multiple offences should be “… consecutive … unless there is a valid reason not to do so” and that “… [e]achsentence should be an appropriate one for the offence”.

He proposed two rationales for concurrent sentences: “... where multipleconvictions arise out of several offences which constitute a single criminal adventure, and … to achieve proper totality for multipleconvictions” (paragraph 41). [10] In Crocker, Goodridge C.J.N. also stated how judges should apply the “totality principle”: “Where there are multipleconvictions and sentences, the sentences must be added together to see whether they are, in totality, excessive.

If they are, it becomesnecessary to determine what term of imprisonment is not excessive and to make some of the sentences imposed concurrent to each other,but only for the purpose of achieving a proper totality” (paragraph 40). Criminal Code Provisions Break and Entry with Intent [11] Section 348(1)(

a) and (

e) of the Criminal Code reads, as is relevant here: 348

(1) Every one who (

a) breaks and enters a place with intent to commit an indictable offence therein, … is guilty … (

e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonmentfor a term not exceeding ten years or of an offence punishable on

summary conviction. Committing Mischief Causing Actual Danger to Life [12] Section 430(2) of the Criminal Code reads: 430

(2) Every one who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonmentfor life. Possessing Stolen Goods [13]

Section 355(b)(

i) of the Criminal Code reads, as is relevant here: 355 Every one who commits an offence under

section 354 … (

b) if the value of the subject matter of the offence is not more than $5,000, is guilty (

i) of an indictable offence and is liable to imprisonment for a term not exceeding two years … Possessing Break-in Instruments [14] Section 351(1)(

a) of the Criminal Code reads: 351

(1) Every person who, without lawful excuse, has in their possession any instrument suitable for the purpose of breaking into anyplace, motor vehicle, vault or safe knowing that the instrument has been used or is intended to be used for that purpose,

(

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years …. [ 15 ] This is the law I will apply to the issue I stated earlier. I turn now to analyze that issue, starting with the background to it. ANALYSIS Background [ 16 ] I set out the background to this matter fully in the reasons I filed on February 25, 2021, when I found Mr. Boland guilty of the offences ( Boland ).

I will limit myself here to those circumstances that are appropriate to the sentences I will impose on him for the offences. [ 17 ] On October 3, 2019, Derek Inkpen and Jason Rose, two NL Power employees learned that power was fluctuating erratically throughout the Towns of Grand Bank and Fortune and to outlying areas, and their superiors were concerned about possible trouble at the substation that served the towns. Mr. Inkpen and Mr. Rose also learned that NL Power was shutting down parts of the service remotely, from St.

John’s. [ 18 ] The substation is located south of Grand View Boulevard that runs east and west through Grand Bank. It is also just off a heavily used ATV trail that residents of Grand Bank and surrounding towns travel to get to the backcountry behind the town. Mr. Inkpen and Mr.

Rose went to the substation, as their superiors directed, to look for causes why the electricity the substation supplied seemed to be compromised. [ 19 ] When they approached the compound, which is surrounded by a high chain-link fence, they saw two or three (more likely three) persons in or near the compound: two were inside the fence and the third was outside, standing near a black car. The car was stationary, with its rear towards the fence, near the main gate to the compound, and its trunk open. The person near the car tried to drive it out of the area when he saw Mr. Inkpen and Mr.

Rose, but the NL Power truck blocked the way, so the driver abandoned the car and fled on foot. [ 20 ] Cst. Stone and Cpl. McGrath of the RCMP arrived on the scene shortly, and the NL Power workers engaged with them. The workers and police officers noted damage to the premises that was readily apparent, even on casual observation.

It included: a hole cut in the chain-link fence; strands of copper ground wire strewn about the compound; and severed ends of wire where it had been cut away from transformers or torn from the ground wire grid, buried throughout the yard. [ 21 ] Of particular, and immediate, concern to the NL Power workers and to the police was the danger that the substation posed to them and to other members of the public. Both Mr. Rose and Mr. Inkpen explained that the damage to the ground wire grid meant that no one could enter the compound until NL Power undertook significant remedial work.

In effect, the whole facility was compromised because the ground wire had been destroyed or was missing. Thus, anyone who entered the premises or even touched the chain-link fence around the facility risked being electrocuted or killed by the exposure. [ 22 ] It was three to four hours before anyone could enter the compound safely while Mr. Rose, Mr. Inkpen and their co-workers, and others working remotely, reduced the flow of electricity to and through the substation.

In the meantime, NL Power shut off electricity to the Towns of Grand Bank and Fortune; and their residents and businesses (including the courthouse) had no electrical service for approximately 10 hours. [ 23 ] Three or four NL Power “big blue” bucket trucks were on site throughout the day and numerous NL Power workers came and went as the work continued, to bring the substation back in service. Even then, the repairs were only stopgap measures to meet the imperative of restoring electricity to the towns; the permanent repairs took weeks to complete and ultimately cost the utility $29,356.04. [ 24 ] Mr.

Boland appeared on the scene on foot around 10:45 a.m. and confirmed that he owned the black Nissan Maxima sedan motor vehicle that was parked near the main entrance to the substation when the NL Power workers arrived on the scene. Cst. Stone arrested Mr. Boland at 11:07 a.m. and transported him to the Marystown Detachment of the RCMP, where he placed Mr. Boland in the cells. [ 25 ] Cpl. McGrath seized Mr. Boland’s motor vehicle and found these items in it after he and Cst. Stone obtained a warrant and searched it later that day: • Mr.

Boland’s wallet, from the driver’s side door panel, with his driver’s licence and a driver’s licence belonging to Francis Walsh, Mr. Boland’s friend, inside. • Mr. Boland’s cellphone, from the front passenger seat. • Mr. Boland’s pill bottle, containing his prescription sleeping medication Zopiclone, from the driver’s side door panel where his wallet was also located. • Mr. Boland’s temporary registration for the vehicle, from the glove box. • Mr. Boland’s ID, from the centre console. • Mr. Boland’s garden shears, from the trunk of the car. • Mr. Boland’s pliers, from the trunk of the car. • Mr.

Boland’s wire strippers, from the trunk of the car.

• A quantity of copper wire that Mr. Boland says did not belong to him. • A pair of bolt cutters that Mr. Boland also says did not belong to him. [ 26 ] Cpl. McGrath says that Mr. Boland told him that he had been hunting moose since 6:00 a.m. that morning and had left his cellphone in his car, the black Nissan Maxima that was parked near the substation. Cpl. McGrath noted that Mr. Boland was dressed lightly for the weather, in that he wore only a sweatshirt, a baseball cap and a pair of rubber boots. Cpl. McGrath said, with the temperature at just 4° C, it was rather cold at the time. He also noted that Mr.

Boland was not carrying a gun nor was he wearing any of the “blaze orange” clothing favored by hunters. Moreover, Cpl. McGrath believed that the moose hunting season had not yet opened for that area of the province. [ 27 ] Cpl. McGrath took many photographs of the scene at the substation.

These included pictures of the wire strewn about the interior of the compound; the hole cut in the chain-link fence around the compound, through which one of the intruders escaped; places on the equipment from which ground wire had been cut; portions of severed wire protruding from the ground; NL Power employees working inside the compound after they could enter it safely; vehicles in the area, including Mr. Boland’s car; boot prints in the ground inside the compound; and the large transformers and other apparatus deployed throughout the substation. [ 28 ] This is the background to the issue I stated earlier.

I turn now to discuss that issue, against this background. Discussion [ 29 ] Brandon Boland was born December 29, 1989, and is 31 years old. Mr. Boland is not married but has been in several dating relationships over the last decade, some of which lasted a couple of years. Most recently, he says he was involved with a young woman from 2017 to 2021. He also says that he and his partner intended to move in together in March 2021, but I scuttled those plans when I remanded him in custody in February 2021. [ 30 ] The adult probation officer who completed the pre-sentence report I ordered for Mr.

Boland confirmed that Mr. Boland and his friend are no longer in a relationship. As the author of the report put it: “She [Mr. Boland’s girlfriend] … came to realize that she cannot remain in a relationship which is causing her too much stress because she is currently struggling with some personal issues of her own.” [ 31 ] Mr. Boland graduated high school in June 2008 and completed a welding program at the College of the North Atlantic in Burin, NL, in the spring of 2009. Subsequently he also completed a MED-A1 course for fishing in 2011. Mr.

Boland says he has used both his welding training and fishing course to get work and has been self-sufficient since he left high school. For the last four years, he has worked in the inshore fishery and most recently he was employed by Captain Christian Keeping aboard Mr. Keeping’s vessel, the “Newfoundland Voyager” which operates out of Fortune, NL, Mr. Boland’s hometown. [ 32 ] Mr. Keeping provided a letter to the author of the pre-sentence report, which she attached to the report.

It is dated April 25, 2021, and reads: “To Whom it may concern: For the past two fishing seasons, Brandon Boland has been employed with me on the fishing vessel, ‘Newfoundland Voyager’. He is a dependable, hardworking employee, gets along well with other crew members. Brandon’s job is still available with me if he is available to finish up this fishing season and thereafter. Skipper F.V. Newfoundland Voyager, [Sgd.], Christian Keeping.” [ 33 ] The author of the pre-sentence report also summarized Mr. Boland’s criminal record. Additionally, Crown counsel referred to Mr.

Boland’s record during her submissions and provided a printout from the Provincial Court of Newfoundland and Labrador, listing the convictions on record at the court in Grand Bank. I set them out chronologically in the following table: Date of Conviction Offence Disposition November 26, 2008 Possessing Controlled Drugs for Trafficking 4-month conditional sentence & ancillary orders. December 10, 2008 Being a minor in a licensed premise, under Liquor Control Act $50 fine and $7.50 Victim Fine Surcharge (Provincial). November 8, 2010 Possessing Controlled Drugs Suspended Sentence & 2 Years’ Probation.

November 8, 2010 Possessing Controlled Drugs 2 Years’ Probation, Jail 45 days. June 12, 2017 Possessing Stolen Goods 12 Months’ Probation, $100 surcharge, conditional sentence of 30 days. [ 34 ] Mr. Boland’s record is generally relevant to this cause, but only his conviction for possessing stolen goods is especially so. [ 35 ] The author of the pre-sentence report also related how Mr. Boland has used alcohol and various other intoxicants, including marijuana, cocaine, and opiates in the last 15 years.

She summarized his use this way: • He started using alcohol and marijuana during his early teen years. • He never developed a strong liking for alcohol and uses it infrequently now. • He used marijuana increasingly over the years and continues to use it daily. • He was addicted to opiates about seven years ago but successfully completed the methadone program and has not used opiates for the last six years. [ 36 ] The author of the pre-sentence report also notes that while Mr. Boland served a short period of incarceration in 2010 for a

provincial offence, “… there were no issues of institutional misconduct during that period”. Finally, she observes of Mr.

Boland: • That there have been “no issues of concern” during his incarceration at Her Majesty’s Penitentiary since I remanded him into custody on February 25, 2021. • That he successfully completed supervision on conditional sentences in 2009 and 2017. • That he was also on supervised probation in 2017 and 2018 and he “… reported to his Probation Officer as required and completed his probation term successfully”. • That he “… anticipates a lengthy period of incarceration upon sentencing [for these offences] and he will use his time in custody productively and take advantage of whatever programming he can avail of”. [ 37 ] Overall, she thinks that “[h]e is … a suitable candidate for community supervision”. [ 38 ] Both Crown and defence counsel acknowledged that they had difficulty finding comparable cases to this one, despite extensive searching of Canadian jurisprudence.

However, they offered the following which they commend to me as relevant to these proceedings, albeit in varying degrees: • R. v. Summers , 2018 NLSC 84 : McGrath J. of this Court sentenced the accused to four years, eight months in prison for three break and enters and one attempted break and enter at pharmacies from which he stole or intended to steal prescription drugs. The accused had a long criminal record (35 offences) for a series of related offences and had been sentenced to jail for some of them. • R. v.

Summerton , 2013 BCCA 545 : A judge of the Provincial Court of British Columbia convicted the accused and two co- accused of theft and sentenced Mr. Summerton to prison for eight months. Mr. Summerton and his co-accused stole copper wire which they unbolted from a telephone pole and disrupted telephone services to 200 subscribers. The police arrested the accused and his accomplices near the scene and found them in possession of a hack saw, bolt cutters, rope, and snowboard bindings with spikes near the cut wires. A truck belonging to one of the co-accused was parked nearby. Mr.

Summerton had a lengthy criminal record and had been incarcerated repeatedly for breaching court orders and recognizances. • R. v. Lombardo , 2008 NSCA 97 : The Nova Scotia Court of Appeal dismissed Mr. Lombardo’s appeal from the sentence a Provincial Court judge gave him for break and entry and possessing tools for breaking and entering. For those offences and two others (possession of a stolen motor vehicle and driving while prohibited), the Provincial Court judge sentenced Mr. Lombardo to two years in jail, followed by 18 months’ probation. The RCMP, with the help of a tracking dog, found Mr.

Lombardo and his companions in the woods near a Nova Scotia power station. They had bolt cutters in their possession and appeared to have used them to cut through a perimeter fence around the power station, from which they stole spools of wire. • R. v. Bowser , 2016 NSPC 68 : The Nova Scotia Provincial Court sentenced Mr. Bowser for breaking and entering a commercial premise and stealing property worth more than $5000. Mr. Bowser and a co-accused had some of the property in their possession when the police arrested them. Mr.

Bowser did not have an adult criminal record when he committed these offences, but he had been convicted of other offences he committed as an adult, before he was convicted for these. He also had a youth criminal record. The Provincial Court sentenced Mr. Bowser to 30 months in jail. The court acknowledged that the starting point in Nova Scotia for break and entry is “three years” but reduced it somewhat for mitigating circumstances. • R. v. Van-Luyk , 2018 ONCJ 807 : The accused was convicted of three related offences, simple mischief, mischief endangering life and arson.

The court sentenced him to 18 months in jail on each charge to be served concurrently and to probation for three years from the date of his release from jail. In effect, Mr. Van-Luyk burned his girlfriend’s car and set it afire in the driveway outside the townhouse where she lived. He had no prior criminal record. The court found that he showed no remorse for his actions and stated that “… each offence is worthy of an 18 month sentence as each are (sic) equally serious” (paragraph 41). • R. v. Hurshman , [1997] N.B.J.

No. 285 , 35 W.C.B. (2d) 255 (Q.B.) : The accused pleaded guilty to breaking and entering a NB Power garage, by digging under an industrial fence and removing a roll of copper wire, valued at $40 from a company vehicle parked in the compound. The police found the roll of wire inside the compound near the fence and with the help of a police dog, located Mr. Hurshman nearby, hidden in some woods. The accused had an extensive criminal record, extending back 15 years, including a prior conviction for breaking and entering with intent.

The court sentenced the accused to two years, less a day in jail, and put him on 24 months’ probation from the date of his release from jail.

• R. v. Barrett, [2020] N.J. No. 271, 168 W.C.B. (2d) 167 (Prov. Ct.): The accused broke into a NL Power substation inBurin, NL and took an Arctic Cat ATV from a trailer in the yard. The next day the police received an anonymous call that the ATV wasin Lewins Cove, a nearby community to the Town of Burin. The ATV was damaged and cost $2,000 to repair and the chain-link fence tothe substation, through which the thieves entered the yard was also damaged and cost $8,525 to repair.

The court sentenced the accused,who had a criminal record, for breaking and entering the substation yard and several other offences involving breaches of probation,breaches of bail conditions and related offences. For breaking into the substation yard, the court considered the damage to the ATV andthe fence to be aggravating factors and sentenced the accused to one year in jail, followed by one years’ probation from the date of hisrelease from jail. • R. v. Park, 2021 CarswellNfld 96, (Prov.

Ct.): The court sentenced the accused to 12 months in jail forbreaking and entering a jewelry store by smashing a window in a door and then smashing two display cabinets, from which he “… stole asignificant number of valuable items” (paragraph 47). The accused had an extensive criminal record. In sentencing the accused, the courtreviewed many precedents for breaking and entering commercial premises and noted from the other matters that “… the consistentimposition of significant periods of imprisonment, illustrates the seriousness of commercial break and entries” (paragraph 46). • R. v.

Warford (1988), (NL SC), 70 Nfld. & P.E.I.R. 200, 215 A.P.R. 200 (Nfld. T.D.): The Courtsentenced the accused for breaking and entering a garage adjacent to a house and stealing snow tires belonging to his ex-wife and formischief endangering life by allowing the contents of acetylene and oxygen tanks in the garage to escape into the garage, an enclosedstructure. Acetylene is both an asphyxiant, and in a confined area is a powerful explosive which is easily ignited. Upon arrival at thescene, the RCMP detected the acetylene and opened the garage doors to air it out, averting any danger of asphyxiation or explosion.

TheCourt characterized the break and entry charge as “trivial” compared to the mischief charge and sentenced the accused to 18 months on that charge and 30 days on the break and entry charge to be served concurrently.

It also placed him on probation for 24 months following hisrelease from jail. [39] From the preceding, I determine that these factors are relevant to these proceedings: • Break and entry is always a serious offence and generally warrants a jail sentence. • Mischief causing actual danger to life to the public is seldom before the court, but when so, it is a serious offence and, likebreak and entry, generally warrants a jail sentence. • Indifference to the risk to the public caused by the mischief is an aggravating factor. • Widespread inconvenience to the public caused by the mischief, though not as serious as the risk to life, is also anaggravating factor. • The planning and deliberation undertaken by the accused in executing the mischief are also aggravating factors. • Prior criminal records are always aggravating factors when sentencing an accused, especially where the previous offencesare related to the ones before the court. [40] Let me examine each of these factors as they apply to this case.

Break and Entry – Serious Offence [41] Mr. Boland and those who aided him brazenly broke into the NL Power substation compound just south of the Town of GrandBank in the daylight hours of October 3, 2019. The substation is adjacent to a well-used ATV trail that the public traverses to get to thebackcountry. In fact, there is a parking area in the immediate vicinity of the substation where trail users off-load their recreationalvehicles and park their motor vehicles while they are away. [42] Mr.

Boland and his companions cut a hole in the chain-link fence around the compound and went in and out of the compoundthrough the hole, delivering the wire they cut away from the transformers and tore up from the ground wire grid to Mr. Boland’s car.The substation is a vital link in the electrical grid that serves the Towns of Grand Bank and Fortune and outlying areas. Mr. Boland andhis companions were heedless of the impact their actions would have on that electrical grid. Mischief Causing Actual Danger to Life [43] It is uncommon to see this offence before the Court.

I did a comprehensive search of a large legal database for the offence, andit appears in the database, for one reason or another, just 49 times, one of which is the report of my earlier reasons for convicting Mr.Boland of the offence in February of this year. [44] In addition to the infrequency of the offence, the measure of its seriousness is reflected in the ultimate penalty of lifeimprisonment that may be imposed on conviction under section 430(2) of the Criminal Code. That penalty compares to break and entryinto a dwelling house, attempted murder, first and second-degree murder, and the like.

[ 45 ] In this case, Mr. Boland and his companions compromised the integrity of the substation by interfering with the ground-wire grid that maintained the equilibrium of the structure. Counsel for Mr. Boland noted in his submissions on sentence that Mr. Boland and his companions were the only ones seriously at risk. That is true, but not completely, and it is also a wonder that they were able to navigate the premises without being electrocuted. [ 46 ] The risk that Mr. Boland and company created by their reckless behavior extended beyond themselves.

It is possible that the chain-link fence around the compound may have been charged with electricity so that any unwitting member of the public, including the NL Power workers, the RCMP, or passersby using the ATV trail might have been exposed to the same risk. Indifference to the Public [ 47 ] Mr. Boland and his companions appeared to have been stealing copper wire to sell as scrap metal. The wire in the trunk of Mr. Boland’s car was cut in short lengths, as were some of the portions of the ground-wire that were torn up and strewn about the interior of the substation compound.

No estimate was provided as to its potential value, but no doubt it is negligible compared to the risk they created to obtain it. Their thoughtless gamble that placed so many lives at risk, including their own, measures their heedlessness and the indifference to the public they endangered. Widespread Inconvenience to the Public [ 48 ] The evidence the Crown led against Mr. Boland at trial indicates that NL Power put the substation out of service for as long as 10 hours on October 3, 2019, as it undertook remedial work to repair the damage that Mr. Boland and his companions did to the structure.

During that time, neither the residents of the towns served by the substation, nor the businesses that relied on it, had electrical service available to them. [ 49 ] The NL Power employees indicated that the repair work continued for weeks beyond that date and ultimately cost the utility just under $30,000 to fix. Planning and Deliberation [ 50 ] Mr. Boland drove his vehicle to the substation.

He claimed that he simply parked it there while he wandered in the backcountry “scouting for moose”, despite not being a moose hunter, having no licence to hunt moose (nor being able to apply for one), and being underclad for his perambulating. The RCMP found garden shears, pliers, wire strippers, a quantity of copper wire, and a pair of bolt cutters in the trunk of Mr. Boland’s car. Mr. Boland agreed he owned all those items, except for the copper wire and the bolt cutters. [ 51 ] In effect, Mr.

Boland had the wherewithal to get access to the substation compound through the chain-link fence, and he appears to have been recovering what he intended to get there when the NL Power employees interrupted what he and his companions were doing. I found in my earlier reasons, and continue to believe, that Mr. Boland and those with him planned to break into the compound and equipped themselves to do it. That is the only reasonable conclusion possible in this scenario. Prior Criminal Record [ 52 ] Mr.

Boland does not have a serious criminal record; certainly not on the scale of the records some of the accused had in cases that counsel put before me for consideration, such as in Summers or Hurshman . However, he has previously served a short period of incarceration and does have a relatively recent, property-related (possession of stolen goods) conviction which I must consider. [ 53 ] I agree with Mr. Boland’s counsel that the pre-sentence report which I received in this matter is generally positive and shows that he is mostly earnest about making himself a productive citizen, who takes care of himself.

I note that Mr. Boland has a good work history and has acted appropriately during the times he has been incarcerated on earlier occasions or when he has been bound by prior court orders. The Sentences [ 54 ] Overall, considering all the circumstances of these offences, I find that these are appropriate sentence for each: • Mischief Causing Actual Danger to Life: 18 months in jail. • Break and Entry with Intent: 18 months in jail. • Possessing Stolen Goods: one month in jail. • Possessing Break -In Instruments: one month in jail. [ 55 ] I order that Mr. Boland serve these sentences concurrently to one another.

In doing so, I consider and apply the totality principle that Goodridge C.J.N. set out in Crocker . To paraphrase what the learned justice said in that case and apply it here: The multiple offences of which Mr. Boland is guilty arose out of a single criminal adventure, so that the sentences for them should run concurrently to achieve a proper totality. [ 56 ] I remanded Mr. Boland in custody on February 25, 2021. Thus far, Mr. Boland has been in custody for 86 days and I give him credit of 1.5 days for each of those days, thereby reducing the time he will serve to complete the sentences by 129 days.

Ancillary Orders 1. Probation [ 57 ] Upon release from jail, I direct Mr. Boland to comply with the conditions of a supervised probation order from the date he is

released for a period of two years. It will include these conditions: 1) The compulsory conditions of probation that appear in s. 732.1(2) of the Criminal Code . 2) Report to a probation officer: • within five working days, and • thereafter , when and in the manner directed by the probation officer. 3) Remain within the jurisdiction of this Court unless written permission to go outside this jurisdiction is obtained from this Court or the probation officer. 4) Refrain absolutely from entering upon any substation premises owned and operated by NL Power within this Province. 2.

DNA Order [ 58 ] The Crown requested that I order Mr. Boland to provide samples of bodily substances for forensic DNA analysis. The break and enter offence for which I convicted Mr. Boland is a secondary designated offence under

section 487.04 of the Criminal Code . I found Mr. Boland guilty of four serious offences, for one of which the maximum punishment is 10 years in jail and for another life imprisonment. Additionally, Mr. Boland has a prior criminal record and has already been incarcerated, if only for a short time. For these reasons, I exercise my discretion and order that Mr. Boland provide samples of his DNA for forensic analysis. 3. Victim Fine Surcharge [ 59 ] Mr. Boland also requested that I waive the Victim Fine Surcharge for these offences because of his lengthy incarceration. I agree and I exempt Mr.

Boland under section 737(2.1) of the Criminal Code from paying a victim surcharge for these offences. He will be in jail for a lengthy period and will not likely have the means to pay the surcharges during a reasonable time. To require him to pay the surcharges, in these circumstances, may cause him undue hardship.

SUMMARY AND DISPOSITION [ 60 ] The Court found Brandon Boland guilty of four offences after a lengthy trial: break & entry with intent; mischief causing actual danger to life; possessing stolen goods; and possessing break-in instruments. It remanded Mr. Boland in custody for sentencing and reserved its decision after the sentencing hearing. [ 61 ] In the result, the Court sentenced Mr. Boland to 18 months in jail on each of the break & entry and mischief offences and to one month on each of the other offences, all to be served concurrently to one another, less 129 days of credit for time served.

It also placed Mr. Boland on supervised probation for two years from the date he is released from custody. Finally, it exempted Mr. Boland from paying a victim fine surcharge for each of the offences but ordered him to provide DNA samples. oRDER [ 62 ] In the result, I order that: 1) Brandon Boland serve concurrently the following jail sentences: • Mischief Causing Actual Danger to Life: 18 months in jail. • Break and Entry with Intent: 18 months in jail. • Possessing Stolen Goods: one month in jail. • Possessing Break-In Instruments: one month in jail.

I give him credit of 1.5 days for the 86 days he has been incarcerated since being convicted of the offences, reducing the time he will serve to complete the sentences by 129 days. 2) Brandon Boland be placed on probation for two years from the date he is released from custody, with these conditions: • The compulsory conditions of probation that appear in s. 732.1(2) of the Criminal Code . • Report to a probation officer - within five working days, and - thereafter, when and in the manner directed by the probation officer. • Remain within the jurisdiction of this Court unless written permission to go outside this jurisdiction is obtained from this Court or the probation officer. • Refrain absolutely from entering upon any substation premises owned and operated by NL Power within this Province. 3) Brandon Boland is exempt from paying Victim Fine Surcharges for these offences. 4) I authorize samples of bodily substances to be taken from Brandon Boland, by order in Form 5.041 of the Criminal Code , and

direct him to attend at the place, day, and time set out in the order and submit to the taking of the samples. _____________________________ Garrett A. Handrigan Justice