R. v. Boland, 2022 NLCA 30

Brandon Boland (appellant) v. Her Majesty the Queen (respondent) (21/20) Indexed As: R. v. Boland 2022 NLCA 30 7 C.A.N.L.R. 576 Court of Appeal of Newfoundland and Labrador Welsh, Butler and Knickle JJ.A. May 16, 2022

Summary: On October 3, 2019 Mr. Boland was charged with stealing copper wire from an electrical transmission station. The lives of the individuals involved in the theft and Newfoundland Power employees were put at risk. The theft caused a loss of electricity for several hours for a large number of customers. Mr.

Boland was convicted of breaking and entering with intent to commit an indictable offence, committing mischief that caused danger to life, possessing stolen goods, and possessing instruments for breaking into a place, contrary to sections 348(1) (a), 430(2) , 354(1) and 351(1) of the Criminal Code , respectively. Mr.

Boland appealed his convictions on the basis that the evidence against him was circumstantial and insufficient to prove his guilt beyond a reasonable doubt, that the trial judge erred by drawing inferences from photographs in the absence of expert evidence, and that the judge erred by shifting the burden of proof to Mr. Boland. Held: Appeal dismissed. Welsh J.A. (Butler and Knickle JJ.A. concurring): The trial judge did not err by misapplying the law with respect to circumstantial evidence as discussed in R. v. Villaroman . Mr.

Boland’s evidence did not support a reasonable alternative inference (paragraphs 19-28). The trial judge did not err in reviewing photographic evidence of a boot-print to draw inferences regarding Mr. Boland’s presence within the fenced area. Expert evidence was not required where there was no need for special expertise or qualification ( R. v. Gill ) (paragraphs 29-37). The trial judge properly applied the framework established in R. v. W.(D.) in rejecting the evidence of Mr. Boland and determining whether the totality of the evidence raised a reasonable doubt as to his guilt.

At no point did the trial judge shift the burden of proof to Mr. Boland (paragraphs 41-43). The trial judge did not err in applying the law regarding circumstantial evidence, in drawing an inference in the absence of an expert witness, or by shifting the burden of proof. The appeal was dismissed (paragraphs 44-45). Cases cited: R. v. Villaroman , 2016 SCC 33 , [2016] 1 S.C.R. 1000 R. v. Gill , 2018 BCCA 275 R. v. Meer , 2015 ABCA 141

R. v. Lee, 2010 ABCA 1, affirmed 2010 SCC 52, [2010] 3 S.C.R. 99 R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 Statutes considered: Criminal Code, sections 348(1), 430, 354(1), 351(1) Counsel: Iain R.W. Hollett, for the appellant; Sheldon Steeves, for the respondent. The appeal was heard on February 9, 2022 before Welsh, Butler and Knickle JJ.A.

The following judgment was filed on May 16, 2022 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [1] Brandon Boland was convicted of breaking and entering with intent to commit an indictable offence, committing mischief thatcaused danger to life, possessing stolen goods, and possessing instruments for breaking into a place, contrary to sections 348(1)(a),430(2), 354(1) and 351(1) of the Criminal Code, respectively. The offences relate to breaking into the fenced yard of an electricaltransmission station and stealing copper wire.

The location of the break-in and nature of the theft put at risk the individuals involved aswell as Newfoundland Power employees, and caused a loss of electricity for several hours for a large number of customers. [2] Mr. Boland appeals his convictions on the basis that the evidence against him was circumstantial and insufficient to prove hisguilt beyond a reasonable doubt, that the trial judge erred by drawing inferences from photographs in the absence of expert evidence, andthat the judge erred by shifting the burden of proof to Mr. Boland.

BACKGROUND [3] On October 3, 2019, two Newfoundland Power employees (the “NL Power workers”) were directed to an electrical substation toassess the cause of erratic power fluctuations. The substation is wholly enclosed by a high chain-link fence and is located on an accessservice road in a wooded area. One of the NL Power workers testified that, when they arrived at the site, he saw two persons inside thefence. One was retrieving copper wire, the other was passing wire through the fence to a third person who was putting the wire into thetrunk of a car.

The second NL Power worker testified that he saw one person inside the fenced area as well as a person who was putting wire into the car’s trunk. As discussed below, thisdiscrepancy regarding how many individuals were in the fenced area has no bearing on the appeal which is concerned only with whetherthe Crown proved Mr. Boland’s guilt beyond a reasonable doubt. [4] The trial judge summarized the reaction of the thieves (2021 NLSC 27): [19] When the three persons in or near the substation spotted the NL Power truck, they fled the area.

The person nearer the fence onthe inside, who had been passing the copper wire out through the fence, jumped over it. The other who was farther into the yard ranacross to a hole that had been cut in the fence on the opposite side and got out through it. And the third person, outside at the car,jumped in and tried to drive away from the area until he saw that the NL Power truck, with the two workers inside, was blocking the exit. The driver abandoned the car and fled into the woods. [5] The NL Power workers, who recognized the potential danger for electrocution, were shaken by what they saw.

After reportingthe incident, they returned to the main road to await the police, who arrived soon after the thieves had fled. [6] Regarding the danger to the public, the trial judge concluded: [26] Of particular and immediate concern to the NL Power workers and to the police was the grave danger that the substation posed tothem and to other members of the public. Both [of the workers] explained that the damage to the ground wire grid meant that no onecould enter the compound until NL Power undertook significant remedial work.

In effect, the whole facility was compromised becausethe ground wire was destroyed or missing. Thus, anyone who entered the premises or even touched the chain-link fence around it was atgrave risk of being electrocuted or killed by the exposure. [7] During the time it took the NL Power workers to repair the damage to allow the restoration of power, the towns of Grand Bank

and Fortune and area were without service for approximately ten hours. Permanent repairs took weeks to complete. [ 8 ] The first of two police officers arrived at the site at 10:40 a.m., approximately twelve minutes after the officer received the call regarding a break and enter “in progress”. After patrolling along the highway for the purpose of possibly apprehending the culprits who had fled the scene, the officer “returned to the substation shortly to learn that Mr.

Boland had just emerged from an ATV trail, leading away from the substation” (decision of the trial judge, at paragraph 30). [ 9 ] The black Nissan Maxima car that had been abandoned by the driver who fled into the woods belonged to Mr. Boland. He was arrested at 11:07 a.m. After a warrant was obtained, the car was searched. The trunk contained garden shears, pliers, wire strippers, bolt cutters, and a quantity of copper wire. The car key, which Mr.

Boland said he had left in the car, was never found. [ 10 ] The trial judge summarized the evidence of the second police officer regarding the explanation given by Mr. Boland for his presence in the area: [39] Cpl. McGrath identified Mr. Boland and said 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 a sweatshirt, baseball cap and a pair of rubber boots. Cpl.

McGrath said, with the temperature at just [four degrees Celsius], 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 favoured by hunters. Moreover, Cpl. McGrath believed that the moose-hunting season had not yet opened for that area of the province. [ 11 ] At the trial, Mr. Boland testified that he had set the alarm for 5:30 a.m. that morning intending to go scouting for moose in the woods near the substation. He said he was gone four or five hours.

The moose hunting season was not open, and he did not have, and could not have applied for a licence. He maintained that he was doing the scouting for others such as his friend’s son and his “sister’s boyfriend’s father-in-law”. He said that he did not bring his car key or cellphone with him into the woods since “he was afraid from a previous mishap in which he lost his cellphone and car keys irretrievably into a mud hole” (decision of the trial judge, at paragraph 78). [ 12 ] During cross-examination, Mr.

Boland testified that “he had neither binoculars, a spotting scope nor any other apparatus to help him spot moose and that he did not take a GPS with him to tag locations where he found them” (decision of the trial judge, at paragraph 81). He conceded that he was not scouting for moose for anyone in particular. [ 13 ] Based on the evidence as a whole, the trial judge convicted Mr. Boland, being satisfied that the Crown had proven each of the offences beyond a reasonable doubt. ISSUES [ 14 ] At issue is whether the trial judge erred:

(1) In applying the law regarding circumstantial evidence, failing to consider evidence that suggested another person was responsible for the offences, and failing to deal properly with Mr. Boland’s testimony;

(2) By drawing inferences from photographs in the absence of expert evidence; and

(3) By shifting the burden of proof to Mr. Boland. ANALYSIS The Legislation [ 15 ] Break and entry (section 348(1) of the Criminal Code ): 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 imprisonment for a term not exceeding ten years ... . [ 16 ] Possession of break-in instruments (section 351(1) of the Criminal Code ): Every person who, without lawful excuse, has in their possession any instrument suitable for the purpose of breaking into any place ... 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; ... [ 17 ] Possession of stolen property (section 354(1) of the Criminal Code ): Every one commits an offence who has in his possession any property or thing ... knowing that all or part of the property or thing ... was obtained by ...

(

a) the commission in Canada of an offence punishable by indictment; ... [ 18 ] Mischief (section 430 of the Criminal Code ):

(1) Every one commits mischief who wilfully (

a) destroys or damages property; (

b) renders property dangerous, useless, inoperative or ineffective; (

c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or (

d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property. ...

(2) Every one who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life. Circumstantial Evidence [ 19 ] Mr. Boland submits that the trial judge misapplied the law with respect to circumstantial evidence in entering the convictions. [ 20 ] The analytical approach to the use of circumstantial evidence in order to draw inferences is discussed in R. v. Villaroman , 2016 SCC 33 , [2016] 1 S.C.R. 1000 .

As a beginning point, the trier of fact must “guard against the risk of ‘filling in the blanks’ by too quickly overlooking reasonable alternative inferences” ( Villaroman , at paragraph 30 ). An inference that may be drawn from the evidence “must be considered in light of all the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense” ( Villaroman , at paragraph 30 ). A case based on circumstantial evidence will not meet the burden of proof beyond a reasonable doubt if there is a reasonable inference other than guilt.

However, “alternative inferences must be reasonable, not just possible” ( Villaroman , at paragraph 42 ). In other words, Cromwell J., for the Court, cautioned: [41] ... to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative ... . [ 21 ] Finally, Cromwell J. summarized the analytical approach when assessing circumstantial evidence: [55] ...

Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence [citations omitted]. [56] The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine [2014 ABCA 328], at para. 22.

The court noted that “circumstantial evidence does not have to totally exclude other conceivable inferences” and that a verdict is not unreasonable simply because “the alternatives do not raise a doubt” in the jury’s mind. Most importantly, “[i]t is still fundamentally for the trier [of] fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt.” [ 22 ] In this case, the trial judge began his assessment by reviewing evidence that he considered to be consistent with Mr. Boland’s guilt. Mr.

Boland admitted that the car at the scene was his, and that he had driven it there. His wallet and driver’s licence were in the car. Copper wire taken from the substation was found in the trunk of the car. Mr. Boland’s shears, pliers and wire strippers were found next to the bolt cutters, and all were found beneath the copper wire. The car key, which Mr. Boland said he had left in the car, was not located. Mr. Boland emerged from the woods at a convenient time, shortly after the arrival of the police. [ 23 ] On the other hand, Mr.

Boland submits that the evidence would support an alternative inference; that is, that someone else was using his car in the commission of the offences. He points to the fact that he appeared at the scene shortly after the police arrived, rather than hiding in the woods until they left. He testified that he had been scouting for moose and had been out in the woods for several hours. He said that the car key, which he had left in the car, must have been taken by the person who tried to escape by driving away. [ 24 ] However, the judge did not accept Mr. Boland’s alternative inference as being reasonable.

Hunting season was not open, Mr. Boland was not eligible for a licence, he could not identify for whom he was scouting for moose, and he had no binoculars or method of identifying where he saw any moose. He was very lightly dressed for the weather, though he said he had been scouting for about four or five hours, having begun about 6:00 a.m. and returning to the substation shortly before 11:00. [ 25 ] Further, Mr. Boland admitted that he had driven to, and parked his car near the substation.

The inference that other persons, not including him, happened to be at the substation, with the tools necessary to gain access into the fenced area and remove the copper wire at that particular time, with no apparent means of transportation to get to the substation or to carry away the stolen copper wire other than Mr. Boland’s car, cannot be said to be a reasonable alternative inference. [ 26 ] The trial judge summarized reasons why he did not believe Mr. Boland’s explanations: [88] Mr.

Boland’s stated purpose for being in the woods near the Grand Bank substation in the early morning hours of October 3, 2019 is imaginative, fanciful and even creative, but it is not convincing. He says he went to bed sometime between 1:00 a.m. and 1:30 a.m. on the same date and set an alarm for 5:30 a.m. so he could drive to Grand Bank and spend the morning “scouting for moose” in the woods behind the substation. ...

[90] ... Ultimately, he conceded that his supposed walk in the woods may have been no more than “go[ing] in and enjoy[ing] nature”. While that may be a laudable purpose, doing it at 6:30 a.m., operating off as few as 4 hours sleep, traveling alone and being underdressed for the weather, makes it an implausible exercise. [ 27 ] In the result, there is no basis on which to conclude that the trial judge erred by beginning the analysis by considering whether, based on reasonable inferences, the circumstantial evidence would justify a conviction. That was one alternative.

The judge fully considered all the evidence, particularly Mr. Boland’s explanations, to determine whether there was a reasonable alternative inference. This was not a situation of the judge “too quickly overlooking reasonable alternative inferences” ( Villaroman , at paragraph 30 ). [ 28 ] Further, considering the evidence as a whole, an alternative inference that Mr. Boland is not the guilty party is not reasonable. Assessing all the evidence and the absence of evidence logically in light of human experience and common sense, the evidence excludes any other reasonable alternative.

There is no basis on which to find that the trial judge erred in his application of the principles regarding circumstantial evidence. Photographic Evidence [ 29 ] Photographs of a boot print, found within the fenced area at the site, and of the sole of the boot that Mr. Boland was wearing at the time of his arrest were entered in evidence by consent. The judge made observations based on his own assessment and comparison of the photographs. Mr. Boland submits that the absence of an expert witness to interpret the photographs precludes the trial judge from using them to draw inferences regarding Mr.

Boland’s presence within the fenced area. I do not accept that proposition. [ 30 ] In R. v. Gill , 2018 BCCA 275 , the Court summarized circumstances when inferences may be drawn from photographs, in the absence of expert evidence: [95] The appellant concedes that, in an appropriate case, an inference respecting the likely cause of an injury, or the amount of force used to inflict it, may properly be drawn from photographs alone in the absence of expert evidence.

He submits that this will be so where the subject matter depicted in the photograph and the inferences to be drawn from it do not require any special expertise or qualification and are amenable to the expression of a lay opinion “by any astute observer, of ordinary experience” : R. v. James , 2013 BCCA 11 (B.C.C.A.) at para. 71 , leave to appeal ref’d [2013] S.C.C.A. No. 87 (S.C.C.).

Where, however, the subject matter and inference the trier of fact is invited to draw from the photograph lies outside the scope of common knowledge, expert evidence is necessary to ground a non-speculative finding of fact. (Emphasis added.) [ 31 ] Similarly, in R. v. Meer , 2015 ABCA 141 , in the context of handwriting, the Court stated: [88] There is no rule of law that a trial judge cannot do a handwriting comparison without expert evidence [citations omitted]. Trial judges routinely examine pieces of real evidence, and it is artificial to say this turns them into “witnesses”.

There is also no requirement for trial judges to give the parties notice that they propose to examine and weigh all the evidence on the record. ... In fact, it is the role of the judge as the trier of fact to weigh the evidence. See also: R. v. Lee , 2010 ABCA 1 , affirmed 2010 SCC 52 , [2010] 3 S.C.R. 99 . [ 32 ] The purpose for adducing the evidence, and inferences to be drawn are relevant in considering whether expert evidence is necessary.

As applied to this case, the comparison of the photographs that was undertaken by the judge, and the use he made of his assessment would not require any special expertise or qualification, and would not require expert evidence. The judge made two observations from the photographs. [ 33 ] First, based on his comparison of the photographs, the judge was satisfied that the boot print and Mr. Boland’s boot “are proportionate to each other”, that is, of a comparable size (decision of the trial judge, at paragraph 57).

He reached that conclusion with the assistance of a standard measure of scale located in each photograph to show the proportionate size. The judge did not use this conclusion to find as a fact that the boot print was made by Mr. Boland’s boot. Rather, he used the information in conjunction with other circumstantial evidence in assessing whether the Crown had proven Mr. Boland’s guilt beyond a reasonable doubt. [ 34 ] The judge also noted the similarity of the tread pattern in the photographs of the sole of the boot and the boot print.

He commented on the “consistency” of the “linear recessions running laterally and horizontally on the heel” (decision of the trial judge, at paragraph 58). Again, the judge made no finding of fact that the boot print was made by Mr. Boland’s boot. At most, he found that the two looked to be consistent. When incorporating his observations for purposes of assessing the circumstantial evidence, the judge concluded: [61] I must consider all the evidence and determine how it relates, if at all, to the issue I have to decide. To that end, these photographs offer some evidence that Mr.

Boland may have been inside the substation compound that day. They do not prove beyond a reasonable doubt that he was inside the compound, but they are a circumstance to consider when I decide whether the Crown has met the burden on it. ... [63] In this case, a comparative analysis of the boot prints [and Mr. Boland’s boot], coupled with Mr. Boland’s presence in the vicinity of the substation and the proximity of his car to the location of the boot prints, is some evidence that he was inside the compound. ... … [67] From considering all the evidence, including the boot prints, logic dictates that Mr.

Boland would be the person in control of the

car and involved in stealing the copper wire from the substation. I will deal with Mr. Boland’s evidence about what he says he wasdoing that day shortly. [35] In other words, the judge used his assessment of the photographs in conjunction with the other circumstantial evidence indetermining whether the Crown had proven Mr. Boland’s guilt beyond a reasonable doubt. Expert evidence was not required. Theassessment and inferences he drew did not require special expertise or qualifications. [36] Mr.

Boland also submits that counsel was not given an opportunity to make submissions regarding the extent to which the judgecould properly assess the photographs in the absence of expert evidence, and what inferences could be drawn. This is not a persuasiveargument. Neither counsel before this Court conducted the trial. The photographs were entered by consent. Trial counsels’ strategy inthe use, or not, of that evidence, is not a matter for conjecture by this Court.

If counsel considered that expert evidence would be neededbefore the judge could make any use of the photographs, presumably, they would not have been entered by consent. [37] Accordingly, I am satisfied that the trial judge did not err in his use of the photographs of the sole of the boot and the boot print. Other Evidence [38] Mr. Boland relies on the evidence of one of the NL Power workers who testified that the person he saw fleeing from the car waswearing a “light” coloured shirt. Mr. Boland said it could not have been him because he was wearing a red hoodie.

At the trial, thewitness was challenged regarding the colour of the shirt or hoodie. He could state only that it was light-coloured, and could have beenred. [39] It is clear from a review of the evidence that the NL Power workers were unable to give, with certainty, a description of thethieves and what each was wearing. Expecting to deal with an electrical malfunction at the substation, they came suddenly upon adangerous scene for which they were not prepared.

The thieves reacted to their arrival and fled quickly. [40] While the trial judge reviewed the testimony of the NL Power workers, he did not rely on their identification evidence. Apotential inconsistency in the testimony regarding the colour of Mr. Boland’s hoodie is not sufficient to call into question the judge’sconclusion that Mr. Boland’s guilt was the only reasonable conclusion available on the totality of the evidence. Mr. Boland’s Testimony [41] Finally, because Mr. Boland testified, the trial judge set out the analytical framework established in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742: [10] ...

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused. [42] Mr. Boland submits that the trial judge erred in the analysis by determining that he was guilty of the offences before heconsidered Mr. Boland’s evidence.

This misconstrues the analysis conducted by the trial judge. As discussed above, the judgeconsidered the whole of the evidence, including that of Mr. Boland, in determining that Mr. Boland’s guilt was the only reasonableconclusion available on the totality of the evidence. This involved a rejection of Mr. Boland’s evidence, and consideration of whetherthe evidence nonetheless raised a reasonable doubt about Mr. Boland’s guilt. At no time did the trial judge shift the burden of proof toMr.

Boland. [43] Rather, after setting out the W.(D.) framework, the trial judge reviewed the evidence, and then proceeded with the analysis andapplication of the law regarding circumstantial evidence. He then returned to W.(D.) and conducted the appropriate analysis atparagraphs 87 to 107. The fact that the judge proceeded with the circumstantial evidence analysis before returning to a review of theevidence in the context of the W.(D.) framework does not lead to the conclusion that he shifted the onus of proof to Mr. Boland.

SUMMARY AND DISPOSITION [44] In

summary, the trial judge did not err:

(1) In applying the law regarding circumstantial evidence and in determining that Mr. Boland’s guilt was the only reasonable conclusionavailable on the totality of the evidence;

(2) In drawing inferences from photographs in the absence of expert evidence; and

(3) By shifting the burden of proof to Mr. Boland. [45] Accordingly, I would dismiss the appeal. Appeal dismissed.