R. v. Boland, 2021 NLSC 27

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Boland , 2021 NLSC 27 Date : February 25, 2021 Docket : 202006G0009 Her Majesty The Queen v. Brandon Allan boland Before: Justice Garrett A. Handrigan Reasons for Judgment Place of Hearing: Grand Bank, Newfoundland and Labrador Dates of Hearing: February 1, 2021 – February 3, 2021 Date of Judgment: February 25, 2021

Summary: Brandon Boland pleaded not guilty to breaking and entering with intent to commit an indictable offence; committing mischief that caused actual danger to life to the public; possessing stolen goods; and possessing instruments for breaking into a place. The Court found that the Crown proved Mr. Boland guilty beyond a reasonable doubt of all offences and remanded him in custody for sentencing. Appearances:

Alison J. Manning Appearing on behalf of the Crown Marcus A. Evans, Q.C. Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Villaroman, 2016 SCC 33; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. v. Dinardo,[2008] SCC 24; R. v. Collin, 2008 BCCA 431; R. v. Pitcher, 2013 NLCA 22; R. v. Kowlyk, (SCC), [1988] 2 S.C.R. 59 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 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 of Canada, RSC 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)). The Crown elected to proceed by indictment for all charges when Mr.

Boland appearedbefore the Provincial Court of Newfoundland and Labrador on December 11, 2019. [2] On January 15, 2020, when the charges were before the same court, Mr. Boland elected to be tried in this Court by a JudgeAlone. He pleaded not guilty to all charges when I arraigned him on February 20, 2020. I heard the evidence over three days startingFebruary 1, 2021 and reserved my judgment until now. THE ISSUE [3] Has the Crown proved beyond a reasonable doubt that Brandon Boland committed the offences with which he is charged? THE LAW Statute – The Offences Breaking and Entering with Intent [4] Section 348(1)(

a) of the Criminal Code reads: Everyone who (

a) breaks and enters a place with intent to commit an indictableoffence therein is guilty of an offence. If the person breaks into a dwelling house, he may, if guilty, be imprisoned for life, or to a termnot longer than 10 years if into any other place. Committing Mischief Causing Actual Danger to Life [5] Section 430(1) of the Criminal Code states how a person may commit mischief. It reads:

(1) Everyone 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. If the mischief causes actual danger to life, he is guilty of an indictable offence and may be imprisoned for life: s. 430(2). Possessing Stolen Goods

[6] Section 354(1)(

a) of the Criminal Code reads:

(1) Everyone commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing thatall or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from (

a) the commission in Canadaof an offence punishable by indictment. If the value of the goods is less than $5,000, the person may be imprisoned for no more than 2 years if he is tried by indictment andfound guilty: s. 355(b)(i). Possessing Break-In Instruments [7] Section 355(1)(

a) of the Criminal Code reads:

(1) Every person who, without lawful excuse, has in their possession any instrument suitable for the purpose of breaking into any place,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 anindictable offence…. If the person is tried by indictment, he may be imprisoned for no more than 10 years, if found guilty: s. 351(1)(a). Case Law – Circumstantial Evidence [8] The Crown relies entirely on circumstantial evidence in its case against Mr. Boland. In R. v. Villaroman, 2016 SCC 33, theSupreme Court of Canada, set out how a court should analyze and apply circumstantial evidence.

Cromwell, J., writing for the Court,expressed it this way: 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. 56 The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine.

The court noted that "[c]ircumstantial evidence does not have to totally exclude other conceivable inferences" and that a verdict is not unreasonable simplybecause "the alternatives do not raise a doubt" in the jury's mind. Most importantly, "[i]t is still fundamentally for the trier [of] fact todecide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt”. (Citations removed). Case Law – W. (D.) Instruction [9] Because Mr. Boland testified, I must analyze his evidence as the Supreme Court of Canada directed in R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742; and consider that analysis as the Supreme Court revisited it in R. v. Dinardo, [2008] SCC 24. [10] In W. (D.), Cory, J. set out a three-step framework for analyzing whether an accused who testifies in his own behalf is guiltybeyond a reasonable doubt: 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 that evidence of the guilt of the accused. [11] This is generally referred to as the “W. (D.) formula”. By 2008, nearly two decades after it decided W. (D.), the Supreme Courtof Canada was concerned about the emerging tendency for judges to apply the instruction formulaically, at the risk of neglecting ameaningful analysis of the issues. So, in R. v.

Dinardo, Charron, J., for a unanimous court, reflected on the legacy of W. (D.): 23 ...[T]here is nothing sacrosanct about the formula set out in W. (D.). Indeed, as Chamberland, J.A. [of the Quebec Court ofAppeal] himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of thethree distinct steps suggested in W. (D.); it will depend on the context (para. 112). What matters is that the substance of the W.(D.) instruction be respected.

In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisivequestion of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to hisguilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonabledoubt... [12] This is the law I will apply to the issue I stated earlier in these reasons. I turn now to analyze that issue, starting with thebackground to it.

ANALYSIS Background [13] On October 3, 2019, Derek Inkpen and Jason Rose, two linemen employed by Newfoundland Power (“NL Power”) wereworking in Grand Bank, on either Marine Drive or the Old Road, streets both in the same vicinity of the town. They were installing anew service to a property in the area when they received a call from their “boss” who informed them of issues with the company’s powersupply to the Towns of Grand Bank and Fortune. [14] Mr. Inkpen and Mr. Rose learned that power was fluctuating erratically, and their superiors were concerned about possible

trouble at the substation that served the towns. They also learned that the company was shutting down parts of the service, remotely from St. John’s. The supervisor directed Mr. Inkpen and Mr. Rose to the substation to look for causes why the power supply was failing. The linemen did as directed. They stopped what they were doing and drove immediately to the substation. [ 15 ] Mr. Rose estimated that they were onsite about 10-15 minutes after they were told to go there, while Mr. Inkpen thought it was no more than 5-7 minutes.

Neither of them was sure about the time it took, and neither knew for certain when they were directed to the substation nor when they arrived there. Not a lot turns on the time of their arrival, in any event. [ 16 ] The NL Power substation is accessible by a rough service road that leads from the main highway that passes through Grand Bank, on the southern extremity of the town. Cpl. Joe McGrath of the Royal Canadian Mounted Police (“RCMP”) was the first witness to testify in this trial.

He described the access to the substation as a reverse “P”, so that the access road runs adjacent to the chain-link fence enclosing the substation and then loops left, to a turnaround area. In the middle of the “P”, is a large stand of alders that partially obstructs the view of the substation from the turnaround, to shoulder height, if not higher. [ 17 ] When they arrived at the access road, Mr.

Rose who was driving the “line bucket” truck (one of the big blue trucks which are emblematic of NL Power), guided it up the service road until they were near the substation, a large electrical installation, that is wholly enclosed by the chain-link fence I referred to earlier. As they approached the substation, Mr. Rose says he saw 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 was open. [ 18 ] Mr.

Rose says he “got a fright” at what he saw, and he stopped the truck. Mr. Inkpen was on the phone with their supervisor. Mr. Rose says the person outside was wearing either a white or a light-coloured sweater and those inside wore black clothing and ball caps. One of the two persons inside was nearer the fence and was passing copper ground wire through it to the person outside who put it in the trunk of the car.

The other person inside the fence was retrieving the wire from near a large transformer in the centre of the compound, and from other locations, and bringing it to the person who was passing it through the fence. [ 19 ] When the three persons in or near the substation spotted the NL Power truck, they fled the area. The person nearer the fence on the inside, who had been passing the copper wire out through the fence, jumped over it. The other who was farther into the yard ran across 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. [ 20 ] Mr. Rose says that he tried to back the truck up to leave the area just after they arrived but got the truck stuck near the intersection of the road into the area, where it branched into the loop of the “P”. When the driver of the car saw the truck blocking his exit, he jumped from the car and fled, too. [ 21 ] Mr. Rose, who was clearly upset at what he and Mr.

Inkpen encountered, was unclear about the sex of the three persons in or near the yard, although he thought they were males. He estimated they ranged in height from 5’ 7” to 6’ 1” but agreed with defence counsel that his range of their possible heights was quite broad and would include a good percentage of the population. [ 22 ] Mr. Rose did not recognize any of the individuals, but he believed they were “fit”. They were of slim build and he thought that the one who jumped over the high wire fence had to be exceptionally athletic. Mr. Rose says he and Mr.

Inkpen left their vehicle and walked down the service road to wait for the police whom they believed had been called and would arrive shortly. [ 23 ] Mr. Inkpen was just as baffled by the scene he and Mr. Rose witnessed when they arrived at the substation. He saw only two persons in the area, not three, as Mr. Rose counted. Mr. Inkpen believed that both were outside the fenced compound and that one of them jumped into the yard and ran across it to the hole in the fence that Mr. Rose saw one of the three escape through. [ 24 ] Mr.

Inkpen says the other person jumped into the car and tried to drive away until he realized that their truck blocked his escape. He then jumped from the car and fled from the area. Mr. Inkpen says he was on the phone with his supervisor while all of this was happening and suggested he was distracted from observing more closely what was going on. [ 25 ] Mr. Inkpen says the police arrived shortly, so they engaged with them. Mr. Inkpen was especially troubled by the damage that was readily apparent, even on casual observation.

For example, he saw strands of copper ground wire strewn about the area, as well as the severed ends of ground wire where it had been cut away from transformers or torn from the grid, buried throughout the yard. Mr. Inkpen responded viscerally while recalling what he witnessed and expressed his distress at the damage that the intruders had caused to “my workplace”. [ 26 ] Of particular and immediate concern to the NL Power workers and to the police was the grave 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 was destroyed or missing. Thus, anyone who entered the premises or even touched the chain-link fence around it was at grave risk of being electrocuted or killed by the exposure. [ 27 ] It was 3 to 4 hours before anyone could enter the compound safely while Mr. Rose, Mr.

Inkpen and their co-workers, and others working remotely, reduced the supply of electricity flowing to and through the substation. In the meantime, NL Power cut electricity to the Towns of Grand Bank and Fortune, and they had no service for approximately 10 hours. [ 28 ] Cpl. McGrath witnessed the intensity of the effort that NL Power expended to restore electricity to the area. He said that 3 or 4 line bucket trucks were on site throughout the day and that numerous NL Power workers came and went as the work continued, to bring the substation back in service.

Even then, the repairs were only stop-gap measures to meet the imperative of restoring electricity to the towns; the permanent repairs took weeks to complete. [ 29 ] Cst. Andrew Stone of the RCMP was the first police officer on the scene. He is regularly stationed in Marystown but was working in Grand Bank that morning. He says he received a call at 10:28 am of a “B & E in progress” at the Grand Bank substation and

was told to attend there immediately. He arrived at the site at 10:40 am and learned that Cpl. McGrath was on his way too. Cst. Stone says he met Mr. Rose and Mr. Inkpen at the foot of the service road to the substation and Cpl. McGrath arrived shortly after. [ 30 ] Cst. Stone says Cpl. McGrath directed him to patrol along the highway through Grand Bank to look for people who might walk out of the area of the substation, given that those who had been at the substation had fled in that general direction. Cst. Stone began his patrol but returned to the substation shortly to learn that Mr.

Boland had just emerged from an ATV trail, leading away from the substation. [ 31 ] Cst. Stone saw three vehicles when he returned to the substation: the NL Power line truck; the RCMP vehicle Cpl. McGrath was driving; and a black Nissan Maxima. He also saw Mr. Boland and noted that he was wearing a red hoodie, jeans and a pair of “brownish-greenish”, Dunlop rubber boots. He also heard Mr. Boland say that he had been “scouting for moose” and was trying to get back to his vehicle. [ 32 ] Cpl. McGrath believed that Mr. Boland had been involved in the incident and he directed Cst. Stone to place Mr.

Boland in his police car, which he did at 10:46 am. Cst. Stone also read Mr. Boland his Charter rights from the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 , and advised him that he had a right to counsel. Mr. Boland wished to speak to counsel, so Cst. Stone dialed the number on a phone in the police car, contacted Mr. Boland’s counsel of choice for him and stepped out the police vehicle while Mr. Boland and counsel spoke privately. Their conversation lasted from 10:51 am to 10:58 am. [ 33 ] Cst. Stone says he conferred with Cpl. McGrath again shortly and the latter informed him that he now had grounds to arrest Mr. Boland, so Cpl. McGrath instructed Cst. Stone to effect the arrest. At 11:07 am Cst.

Stone arrested Mr. Boland and advised him again of his Charter rights and the right to counsel. Then Cst. Stone transported Mr. Boland to Marystown Detachment of the RCMP, arriving at 11:52 am, where he placed Mr. Boland in the cells. [ 34 ] Cpl. McGrath also seized Mr. Boland’s black Nissan Maxima sedan motor vehicle. A towing service transported the vehicle to Marystown Detachment and placed it in a secure bay at the facility at 1:05 pm. Cst. Christopher Mitchell applied to a Justice for a warrant to search the vehicle and received it at 4:55 pm. Cst. Stone reviewed the warrant with Mr.

Boland and provided him with a copy of it. Then Cst. Stone and Cpl. McGrath searched the car, starting at 5:04 pm. [ 35 ] They seized these items from it: • 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 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 does not belong to him. • A pair of bolt cutters that Mr. Boland also says do not belong to him. [ 36 ] The police placed all items in secure storage at Marystown Detachment until the Crown put them in evidence at Mr. Boland’s trial. [ 37 ] Cst. Stone and Cpl. McGrath also took many photographs of Mr. Boland’s vehicle while they searched it.

The Crown produced these photographs at Mr. Boland’s trial, and they were introduced as exhibits and labelled Consent #4. All 24 photographs are relevant, but several are of particular interest. I refer to #’s 22 and 23 from this exhibit and will return to them later in these reasons. [ 38 ] Cpl. McGrath stayed at the substation in Grand Bank most of the day after he arrived about the same time that Cst. Stone did. Cpl. McGrath met Mr. Boland as he walked out of the ATV trail. Cpl. McGrath did not know the exact time of Mr. Boland’s arrival but Cst. Stone says that Cpl. McGrath turned Mr.

Boland over to him at 10:46 am and told Cst. Stone to place him in the police car. [ 39 ] Cpl. McGrath identified Mr. Boland and said that Mr. Boland told him that he had been hunting moose since 6:00 am 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 4º 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. [ 40 ] 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 in the fence 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 safely; vehicles in the area, including Mr. Boland’s car; boot prints inside the compound; and the large transformers and other apparatus deployed throughout the substation. [ 41 ] Cpl. McGrath produced a booklet of 71 photographs that the Crown introduced as an exhibit, and I received with Mr. Boland’s concurrence as Consent #1. Cpl. McGrath also interviewed Mr. Boland and took a cautioned statement from him. He began the interview at 6:35 pm on October 3, 2019, and concluded it at 7:42 pm.

The Crown produced a compact disc containing the audio and videotaped interview, as well as a hard copy transcript from it. These items were introduced as exhibits and marked as Consent #2 and 2A respectively. [ 42 ] Mary Boland is Brendan Boland’s mother. She lives on Hornhouse Road, outside the residential area of Fortune, but still within its municipal boundaries. She said that some people call it the “Lighthouse Road.”. Ms.

Boland and her husband, Allan, own the house but he was at sea on a fishing boat at the time of the incident. [ 43 ] Brendan Boland also lived with his parents but says he spent many nights away from their home staying with friends. For example, when Crown counsel cross-examined him during his trial, he noted that “[a]t the time, I was seeing three or four different females, so I was at a lot of places to tell you the truth now besides Mr. [Frankie] Walsh’s” (Transcript, page 26, lines 8-9). [ 44 ] Ms. Boland texted her son late in the evening of October 2, 2019, to ask if he would be home that night.

She was unsure of the time when she contacted Mr. Boland, at first when she testified, or even if she got a response from him. However, after she reviewed the statement that she gave to the police shortly after the incident, she remembered that he did reply, telling her to go to bed because he was uncertain when he would be home. At that, Ms. Boland says she locked the doors, took an Ativan and did as her son suggested. It was about 11:00 pm then she thought, not because she actually remembered the time but that was when she usually went to bed. [ 45 ] Ms.

Boland says she woke around mid-morning on October 3, 2019, to find that she was home alone. She tried to contact Mr. Boland to remind him he had to take his niece to a soccer game outside the community, but he did not respond. Ms. Boland did notice that the electricity was out to her home. [ 46 ] Francis (“Frankie”) Walsh is one of the friends that Brandon Boland stayed with periodically. At the time, Mr. Walsh lived alone in a 4-bedroom duplex in Fortune and he remembered that Mr. Boland visited him during the evening of October 2, 2019.

He also told the police when they interviewed him October 3, 2019, that Mr. Boland stayed with him until 8:30 or 9:00 am on that morning and left in his Nissan Maxima. However, Mr. Walsh disavowed remembering much, if anything, about the events of October 2-3, 2019 when he testified during Mr. Boland’s trial. [ 47 ] In effect, Mr. Walsh says he was too drunk to remember what happened while Mr. Boland visited. He says he was drinking heavily at the time and to underscore how heavily he was abusing alcohol then, he said he often “had a dozen gone before breakfast”; which, I expect, is likely hyperbole.

He also said that he was drunk when the RCMP interviewed him to obtain a witness statement about the incident. [ 48 ] Csts. Brogan Young and Cassandra Barker conducted that interview. They drove to Fortune in a marked police car. The officers had some difficulty locating Mr. Walsh at first, but eventually received a “tip” that he was with a Terri Mullins. Shortly after that Mr. Walsh met them after he exited from a white Honda Civic. Each officer noted the peculiar stance that Mr.

Walsh adopted as he approached them: with his hands raised over his head and his wrists held together, as he might if they were going to handcuff him. The officers assured Mr. Walsh they were not there to arrest him but only to obtain a witness statement. [ 49 ] Mr. Walsh agreed to speak to the officers but asked that they go elsewhere in Fortune so that he would not be seen in their company. They complied and drove to a parking area near a tourist attraction in the community that passes under the name “The Boat That Wouldn’t Float”, where they interviewed him. Each officer said that Mr.

Walsh spoke readily to them and neither was concerned about his sobriety, until near the end of his statement when he said he was “buzzed”, or words to that effect; at which they ended the interview immediately. They left Mr. Walsh at the end of his street, again at his request, so he could walk alone to his home. [ 50 ] Cst. Barker was the last Crown witness, after which Mr. Boland testified. I will review his testimony in detail as I focus my discussion on the issue that I stated earlier in these reasons. For present purposes, I simply note that Mr.

Boland denies he broke into the substation; that he caused any damage to it; that he possessed wire taken from the site; or that he owned tools used to break in and steal the wire. He implies, although he refuses to say explicitly, that unknown persons committed these offences and serendipitously appropriated his vehicle in situ local. DISCUSSION [ 51 ] As I stated earlier, I must decide if, on all the evidence, the Crown has proved that Mr. Boland committed the offences. I will take a twofold approach to the discussion.

First, because the Crown relies entirely on circumstantial evidence, I will ask if the evidence is consistent with Mr. Boland’s guilt; and if it is consistent with his guilt, I will ask if, on all the evidence, there are other reasonable explanations that present, other than that Mr. Boland committed the offences. [ 52 ] Mr. Boland’s testimony is more relevant to the second stage of the discussion than the first, but not only to it. Of course, as when I consider Mr. Boland’s evidence, I will ask whether, considered with the evidence as a whole, his testimony raises a reasonable doubt as to his guilt.

Consistent with Guilt [ 53 ] The Crown relies on the following evidence as consistent with Mr. Boland’s guilt: • Mr. Boland’s car was at the scene. • Mr. Boland’s car was used by those who broke into the substation.

• Mr. Boland’s car contained his wallet (from side pocket of driver’s door) with his driver’s licence and Frankie Walsh’s driver’s licence inside. • Mr. Boland’s car contained his ID (from centre console). • Mr. Boland’s car contained the temporary registration (from glove box) for the car. • Mr. Boland’s car contained his prescription pill bottle (from side pocket of driver’s door). • Mr. Boland’s car contained his garden shears, pliers and wire strippers (from trunk). • Mr. Boland’s shears, pliers and wire strippers were found next to the bolt cutters (also in the trunk). • Mr.

Boland’s shears, pliers and wire strippers (as well as the bolt cutters) were beneath a pile of copper wire that came from the substation. • Mr. Boland appeared on the scene, shortly after the police arrived. • Mr. Boland appeared to be underdressed for the conditions that morning, particularly if he was, as he claims, outside his vehicle for 4 to 5 hours. [ 54 ] I will examine these factors more closely shortly. Before doing so, let me look more closely at Photos #22 and 23 of Consent #4, the book of photographs that Cst. Stone tendered in evidence.

Photo #22 is a picture of the bottom tread of the left Dunlop rubber boot that Cst. Stone noted Mr. Boland was wearing. The tread shows some wear, but the pattern is distinct. It features linear recessions running laterally and horizontally on the heel of the boot and diagonally on the forefoot. [ 55 ] Photo #23 is a picture of the same rubber boot, taken from above, with the boot resting upright on the floor of the secure bay at the RCMP Detachment in Marystown.

This picture shows the rubber shank of the boot, with a fountain pen lying next to it, to scale the size of the boot. [ 56 ] Without more, these pictures are not especially probative. However, when I compare them to other pictures that Cpl. McGrath took at the substation on the same day, they have a different effect. Let me explain. [ 57 ] Photo #23 from Consent #1 is a picture of a boot print in the fine gravel inside the substation compound. Next to the print is a pen like the one that Cst. Stone placed next to Mr. Boland’s rubber boot at the RCMP Detachment. Cpl.

McGrath placed the pen next to the boot print at the substation to scale it, just as Cst. Stone did for Mr. Boland’s rubber boot at the detachment. I note that the scaled boot print and the scaled sole of the boot are proportionate to each other. [ 58 ] But even more compelling is the impression of the boot print in the ground, and its consistency with the linear recessions running laterally and horizontally on the heel of the boot, as depicted in Photo #22 from Consent #4. Photos #14, 15, 16 and 17 from Consent #4 are of the same boot print. Cpl.

McGrath took them from different angles to show them in separate profiles. [ 59 ] Of those 4 additional photographs, #16 shows the clearest depiction of the tread pattern in the heel of the boot; and again I note its consistency with the linear recessions running laterally and horizontally on the heel of the boot, depicted in Photo #22 from Consent #4. In Photo #16 from Consent #1, there is nothing remarkable or even apparent about the forefoot impression; but if Mr. Boland’s boots made the impression in the gravel that is understandable: His boots appear to have some wear on them, especially in the forefoot.

I note that the forefoot of the boot that is depicted in Photo #22 of Consent #4 is relatively smooth; at least sufficiently so that it would be unlikely to leave a discernable pattern in the gravel of the compound. So, what are these photos probative of? [ 60 ] Both Cpl. McGrath and Cst. Stone say that they tried to have the exhibits they seized examined by their Forensic Identification Services and that they intended to submit them to the RCMP lab in Ottawa, ON. They each said the lab would not accept the exhibits.

Apparently, the lab triages its work, and their exhibits did not qualify for analysis by that process. Even Mr. Boland regretted the lack of analysis, because he claims DNA testing and other procedures could have proved he is “innocent”. [ 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. [ 62 ] Let me note something else about the boot prints: The Crown must prove the charge against Mr. Boland beyond a reasonable doubt, but it does not have to prove the individual pieces of evidence that it relies on, to the same standard. The British Columbia Court of Appeal discussed the different standards of proof in R. v.

Collin , 2008 BCCA 431 : 16 The error of law alleged to have been made by the trial judge is that he placed too much weight on the facts found by the judge to have been proven on a balance of probabilities. The evidence against Mr. Collin was entirely circumstantial in nature. There is no disagreement between the parties that a finding of guilt based on circumstantial evidence may only be properly made if such a finding is the only rational or reasonable conclusion to be reached from the evidence as a whole: see R. v.

Cooper . 17 There is no requirement, however, that all of the circumstantial evidence relied upon for a finding of guilt must be proven beyond a reasonable doubt. Nor is there a requirement that a certain amount of the circumstantial evidence must be proved beyond a reasonable doubt. The requirement is that all elements of the alleged offence, including the element of identity of the offender, must be proved beyond a reasonable doubt: see R. v. Morin . The applicable standard was articulated [by the Supreme Court of Canada] in R. v. Khan , as follows:

[9] The Crown need not prove beyond a reasonable doubt each fact which is said to support the inference of guilt. Each fact may be a link in the chain of ultimate proof. Sopinka J. made it clear in R. v. Morin ... that it is the jury's duty to consider the evidence as a whole and determine whether guilt has been established by the prosecution beyond a reasonable doubt”. 18 Hence, it was not an error of law by the trial judge to consider circumstantial evidence proved on a balance of probabilities in reaching his conclusion that the whole of the evidence established the guilt of Mr.

Collin beyond a reasonable doubt. This does not derogate from the principle that guilt must be proved beyond a reasonable doubt. (Citations omitted from quotation) [ 63 ] In this case, a comparative analysis of the boot prints, 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. Let me return now to the car and examine whether its presence at the scene and the evidence the police found within, or about it, is consistent with Mr. Boland’s guilt. [ 64 ] Mr.

Boland acknowledged that he drove his car to the substation on October 3, 2019. He says he did so around 6:30 am and he also acknowledges that he came back to the substation to look for it 4 to 5 hours later. He denies that he was in the substation compound or that he was present in or about the car when Jason Rose and Derek Inkpen arrived on the scene and saw the intruders at work. [ 65 ] While there is no direct evidence that Mr. Boland was present at the substation when the NL workers arrived, there is copious evidence of his “presence” in the car.

I note, for example, that his driver’s licence, his friend’s driver’s licence, his prescription pill bottle, his ID, his cellphone and the temporary registration for the car were all “present” in his unlocked car. [ 66 ] As well, his garden shears, his pliers, his wire strippers and some items of his clothing were in the trunk of his car, lying next to the bolt cutter and beneath the copper ground wire that came from inside the compound. The car was no longer where Mr. Boland says he parked it when he arrived at the substation earlier, so someone with a key (none was ever found, either in the car or on Mr.

Boland, or elsewhere, although Mr. Boland said during his testimony that he had a spare key at home) started and moved the car and tried to escape in it when the workers arrived. [ 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 was doing that day shortly. [ 68 ] But for present purposes, I am satisfied of this conclusion on the standard that Cromwell, J. adopted from the Alberta Court of Appeal in Dipnarine and quoted in Villaroman : "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. [ 69 ] There are no reasonable alternatives that present to me from this evidence to doubt that Mr.

Boland was one of the people at the substation when the NL Power employees arrived. I turn now to consider his evidence. [ 70 ] Brandon Boland is 31 years old. He is single and works as a deckhand on local fishing boats. At the time of the incident, he lived with his parents, Allan and Mary Boland, in Fortune but has since moved into his own accommodations. When he testified, Mr. Boland said he lived at 26 Greenwood Street, in Marystown, NL, about an hour’s drive from Fortune. [ 71 ] Mr.

Boland says he visited Frankie Walsh during the evening hours of October 2, 2019, and stayed there until just after midnight, leaving around 12:30 or 1:00 am. Mr. Walsh was drinking, and Mr. Boland says he decided to go home for the night. He told Mr. Walsh he was leaving but he doubts Mr. Walsh heard or understood him. In fact, he says he went home because Mr. Walsh was asleep at his kitchen table, drunk or passed out from an evening of drinking. Mr. Boland says he was sober and claims he does not drink. [ 72 ] According to Mr.

Boland, he drove to his parents’ home, entered the porch, retrieved the key to the door from beneath a hat hung there, unlocked the door, put the key back where he found it and let himself into the house. His mother was asleep, and he says he went to bed shortly. He says he declined taking a sleeping pill because he intended to get up early to go “scouting” for moose in the woods, near the Grand Bank substation. He set his alarm for 5:30 am and went to sleep. [ 73 ] He described “scouting for moose” this way during direct examination by his counsel: Q.

So when you say you planned to go scouting for moose, what exactly does that mean, to scout for moose? A. Scout is basically going around looking for signs, fresh signs, fresh tracks or seeing if there’s either one on the move, like, usually early in the morning where they’re wet, they’ll leave and come out, they stays into the woods and then in the morning if there either bit of dampness or moisture in the air, they’ll come out into the sun and dry off, and you’ll see it as they dries out, you’ll see their fur reflecting in the sun as they starts to dry. That’s the normal moose routine for the morning time.

If there’s either bit of moisture in the air, they’ll come out and start drying it off. (Transcript, page 6-7, lines 17-20, lines 1-5) [ 74 ] Mr. Boland also stated why he was scouting for moose, given that the season for hunting moose was not open, he did not hold a moose licence (nor could he apply for one), he was prohibited from owning or possessing firearms (because of a 10-year-old, court- imposed ban because he was convicted for trafficking in marijuana) and he did not plan to hunt moose himself: Q. Why then were you scouting for moose? A. For a hobby and stuff like that.

I spends a lot of time in the country and that and plus my buddy’s son, Chandler Thornhill, he had a license and also my sister’s boyfriend’s father-in-law, Harold Cousins, he also had a license which is alongside of my fadder [sic] too

besides. (Transcript, page 5, lines 6-9) [ 75 ] So, it would appear from this, that Mr. Boland intended to spend considerable time trying to find moose so that he could advise friends or acquaintances who were licensed to hunt them where they might find their prey. Mr.

Boland says he got up that morning as planned, dressed, put on his rubber boots, but took a pair of “sneakers” with him as well, left his parents’ home, after locking the door and drove to Grand Bank. [ 76 ] He thought to go back into the country by a road that ran up along the dam on the Grand Bank Brook but his car “bottomed out twice” so he backed out and drove up the service road to the substation. He parked his car to the right side of the turnaround area, being careful, he noted, not to obstruct a loading ramp that outdoor enthusiasts used, to load or offload their recreational vehicles. [ 77 ] Mr.

Boland says he got out of his vehicle, put on a bright red Under Armour hoodie (double-lined, with “fur and wool on the inside, it’s thick”) because it was “a little bit chilly that morning”, and made sure he had nothing in his pockets to lose while traipsing through the woods. He says he lit up a smoke before setting out but decided not to bring his cigarettes with him. [ 78 ] In fact, Mr.

Boland says he did not bring anything of value with him because he was afraid from a previous mishap in which he lost his cellphone and car keys irretrievably into a mud hole, that he might lose them again while away from his vehicle. For greater certainty, he says he left behind the items that I listed earlier in these reasons which Cpl. McGrath and Cst. Stone found when they searched his vehicle, as well as his keys.

He “believed” that he left the keys in the centre console; although he was wary enough to take a $50 bill from his wallet before he departed. [ 79 ] He offered this rationale to his counsel for his sparing attire: Q. And why would you leave these things as opposed to bringing them? A.

Just for the sakes of losing them and stuff, like there, whatever, the same things as a phone ringer and here you’re going in across and you’re trying to look around and stuff and your phone ringing and stuff like that, the noise and stuff, just because it’s the concept of having jeans and stuff on and stuff heavy in the pockets and the lighter you are, you’re walking, like if you ever spend a lot of time in the country, walking through marsh and stuff isn’t very easy especially with anything sharp or pointy or anything digging into your legs with just a pair of jeans on. So, you travel light.

If you travel heavy, you’re going to sweat. You won’t get nowhere, you’ll freeze. (Transcript, page 13, lines 6-14) [ 80 ] Mr. Boland says he was gone “four hours, five hours, I wasn’t sure at the time” but when he got back to the substation, he walked into the scene that Jason Rose, Derek Inkpen, Cpl. McGrath and Cst. Stone described in detail during their testimony. He recalled what happened to him right off: Q. And what happened next? A. He [Cpl.

McGrath] had asked me where I was coming from and stuff and what was, it was, then a couple of small questions and I can’t really recall exactly but then he advised me that I was being detained. He said I wasn’t under arrest, I just needed to be detained for a bit so I agreed with it and got in the back of the vehicle. (Transcript, page 15, lines 14-18) [ 81 ] Mr. Boland also agreed with Crown counsel during cross-examination 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.

Counsel also pressed him about the identities of those for whom he was scouting moose and he eventually conceded that he had no one in particular in mind: Q. Okay. So are you saying now you weren’t actually scouting for anybody, is that what you’re saying now? A. No. Q. So you weren’t? A. What? MR. EVANS, Q.C.: Perhaps you could repeat that -- A. Because I mean -- MS. MANNING: So you weren’t actually scouting for anybody? A.

Not specifically like they said to me, well, okay, you go find a moose for me and stuff but I just knew people that had licenses and stuff and had their stuff and if I had seen them, then that’s, like, I would have told them. (Transcript, page 21, lines 1 - 8) [ 82 ] Later in his testimony Mr. Boland was even less certain of why he went in the woods that day, as this exchange with Crown counsel shows: Q. And so, you leave your car with that, you’re going into the woods scouting moose even though you can’t hunt and you’re not actually scouting for anybody else. A. Well, that’s – what is correct on that?

Am I not allowed to look or look for animals or go in and enjoy nature, right , like –

(Transcript, page 46, lines 1-17) (Emphasis added) [ 83 ] Mr. Boland also explained why he was not uneasy about leaving his car keys, his wallet, his driver’s licence, his friend’s driver’s licence, his personal ID, his prescription pill bottle, his vehicle registration and his cellphone in his unlocked car: Q. And moose season is not opened, right? And you leave everything you own including your prescription medication in an unlocked vehicle in a public area. A. Which I already explained, yes, several times. Q. And that area is fairly frequently used, right? A.

I’m not exactly sure because I never spent much time up in the actual parking area, but the trail is somewhat but it’s Fortune in Grand Bank. Like you say, you can go up to my mother’s right now, the bike is up there in the shed, the keys are there, the doors are left unlocked, boat their motors, gas cans in the boat, the keys in the bike, the keys in the ski-doo, keys – the only thing key in it is the ignition of her car and that’s left unlocked. (Transcript, page 47, lines 1-9) [ 84 ] Mr.

Boland was prompt to answer all questions that Crown counsel put to him and it seemed to me as though he had “an answer for everything”, but there was one exception: He refused to discuss what might have happened to his car while he was away from it; and, in particular how others might have used it to break into the substation, damage it extensively and steal the copper ground wire. [ 85 ] As this excerpt from his cross-examination shows, he had “no opinion” on that: Q.

And it just so happens that on this day when you do this and go into the woods with nothing, unknown individuals use your car to steal copper from the very sub-station you’re parked next to, that’s basically what you’re saying. A. I don’t know if that’s what they done or not. I wasn’t there to see it. I knows the wire turned up in my vehicle and that, yes, but I can’t tell you what they done or what they did or didn’t do. I was gone for five hours. Q. Okay. But you were here for the last – A. I have no opinion on that, Your Honour. I can’t recollect or say what they done and what they didn’t do.

I have no opinion on that. (Transcript, page 48, lines 7-14) The W. (D.) Framework [ 86 ] Because Mr. Boland testified, I have to decide: • First, whether I believe him, and if I do not; • Second, whether I have a reasonable doubt of his guilt because of his testimony and, even if I am not in doubt because of his evidence; and • Finally, on the evidence which I do accept, whether I am satisfied beyond a reasonable doubt that he is guilty. Let me take each of these considerations in turn. Believing Mr. Boland [ 87 ] I do not believe Mr. Boland, and this is why. [ 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 am and 1:30 am on the same date and set an alarm for 5:30 am so he could drive to Grand Bank and spend the morning “scouting for moose” in the woods behind the substation. [ 89 ] He did not hold a moose licence, he had never hunted moose (“Q. When was the last time you, you moose hunted? A.

The last time I actually moose hunted, I actually never actually moose hunted but I’ve been with people before” – Transcript, page 22, lines 12- 13), he did not hold a licence, he could not apply for a licence, he was prohibited from owning or possessing firearms and the season was not open. [ 90 ] Initially, he claimed to know several people with moose licences, and he implied that he would pass along any sightings he made to them; but eventually he acknowledged that he was not “scouting” for any of those he named or anyone, in particular.

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 am, operating off as few as 4 hours sleep, traveling alone and being underdressed for the weather, makes it an implausible exercise. [ 91 ] Mr. Boland says that he left his car unlocked with his cellphone, his wallet containing his and a friend’s driver’s licences, his pill bottle containing prescription medication, his ID, the car’s registration and the keys inside.

He claims to have a lingering fear of losing things while walking about the woods because he lost a cellphone and car keys before.

[ 92 ] Once again, I am baffled by Mr. Boland’s reasoning: He left his car unlocked in a much-traveled area, that was relatively unknown to him, and he incurred the risk that someone might break into his car and steal it or the items it contained; of which there was a far greater likelihood than accidentally losing them in a mudhole or in vegetation. In fact, if I accept Mr. Boland’s insinuation of what happened at the substation during his supposed absence, that is precisely what happened. [ 93 ] In trying to lend credit to his decision to leave his car unlocked, Mr.

Boland noted that he and his parents commonly leave their vehicles and the storage places in which they may be found, unlocked, often with keys in ignitions. Yet, Mr. Boland noted that the door to his parents’ home was locked when he arrived home around 1:00 am on October 3, 2019, and he described in great detail how he carefully unlocked it to let himself in and then locked it again when he set out a few hours later. [ 94 ] Just then, I referred to Mr. Boland’s “insinuation of what happened at the substation during his supposed absence”.

That’s because I have no more than an insinuation from him of what happened at the substation. Crown counsel asked him during cross- examination if he was saying that “unknown individuals use[d] your car to steal copper from the very substation you’re parked next to, that’s basically what you’re saying”; to which Mr. Boland responded immediately that “I don’t know if that’s what they done or not”. He said he was not there and then he turned to me and said, “I have no opinion on that, Your Honour”. [ 95 ] I have reviewed the transcript of Mr. Boland’s testimony and this part of his evidence, in particular.

The transcribed words are clear and persuasive enough in their own right but they do not capture the tone of Mr. Boland’s answers to counsel’s question. Generally, Mr. Boland was very talkative and often quite animated during his testimony, frequently volunteering information and sometimes even trying to be engaging. For example, at one point he looked at me and inquired: “What would you rather me refer to you as, Justice or Your Honour”. [ 96 ] However, he was neither talkative, animated, nor engaging when counsel put that question to him.

First he changed his tone noticeably and then he brusquely denied that he had any opinion on how the supposed burglars used his car to break into the substation and steal the ground wire. In light of his other testimony, it was unlike Mr. Boland not to have an opinion on that issue, unless, of course, counsel’s question took him uncomfortably close to the truth about what he really did that day. [ 97 ] It is also untenable for him to adopt that position and still ask me to draw the same inference that he refuses to say anything about. I will discuss that inference shortly, but for now let me say simply that Mr.

Boland’s indifference about it, causes me to doubt his truthfulness overall. [ 98 ] One further point: Mr. Boland’s counsel challenged me when I asked him about the significance of Mr. Boland’s refusal to express an opinion about what happened. Counsel said I was getting “dangerously close” to shifting the burden of proof from the Crown to Mr. Boland. That, of course, is not right. The burden to prove Mr. Boland guilty lies with the Crown throughout and he has no obligation to prove that he is innocent. [ 99 ] However, when Mr.

Boland took the stand and denied he was involved in the incident and implied that persons unknown to him did it, using his car to get it done, it is not shifting the burden of proof to him when counsel asks him to explain what he is implying happened. It is disingenuous for Mr. Boland to pass the question off as he did here and pretend that counsel should not even have asked it. [ 100 ] In R. v. Pitcher , 2013 NLCA 22 , the accused appealed his conviction for several offences, including break, entry and theft. The Crown’s case against him was based, as here, entirely on circumstantial evidence. Mr.

Pitcher questioned the trial judge’s reliance on his presence at the scene of the crime as an indication of his culpability for the offence. He suggested that it was tantamount to requiring him to prove that he was not guilty of the offence. [ 101 ] Welsh, J.A. of the Court of Appeal, who wrote for the Court, rejected Mr. Pitcher’s claim: “I would note here that the need for an accused to provide an explanation is not a matter of the accused bearing an onus of proof, but of refuting evidence that would otherwise establish guilt” ( Pitcher , paragraph 13 ). A Reasonable Doubt from Mr.

Boland’s Testimony [ 102 ] Even if I do not believe Mr. Boland, I still must ask myself if his testimony causes me to have a reasonable doubt about his guilt. It does not; let me explain. [ 103 ] The circumstantial evidence the Crown relies on leads to a compelling inference that Mr. Boland and one or two other persons broke into the substation, cut the copper ground wire and were putting it in the trunk of Mr. Boland’s car when Mr. Rose and Mr. Inkpen showed up in the NL Power line bucket truck.

I will not repeat that evidence because I have stated it several times already during these reasons. [ 104 ] Quite simply, when I consider the evidence, including Mr. Boland’s boot and the boot print inside the compound, I can come to no other conclusion than that Mr. Boland must have been one of the thieves. I have engaged in a robust dialectic with myself over various aspects of the evidence as I try to discern another possible explanation for what happened than Mr. Boland being directly involved, but I find no other. [ 105 ] For example, it will be noted that there is no direct evidence Mr.

Boland was involved; that the NL Power workers could not say he was one of the persons, be it 2 or 3 they saw at the substation. But his car was there, it was clearly used in the incident, it had the tools onboard to execute the break-in and obtain the copper and Mr. Boland showed up in the area shortly after the workers and the police arrived on the scene. [ 106 ] Mr. Boland refuses to offer an opinion about how third parties unknown to him may simply have exploited the convenient circumstances that he is clearly responsible for. The evidence is compelling and nothing that Mr.

Boland said leaves me in doubt about whether he was directly involved in the incident.

Proof Overall of Offences Beyond a Reasonable Doubt [107] There is little I need add to this discussion to address the third aspect of the W. (D.) framework. However, it is self-evident that Iam satisfied on the evidence that I accept that Mr. Boland is guilty of the offences charged. I can express it this way: I am sure that hecommitted them. Let me now say something of the charges that I find Mr. Boland is guilty of. The Charges [108] Neither counsel addressed me on the elements of the offences that Mr. Boland committed on October 3, 2019.

The charges are, asthey appear on the Bill of Indictment the Crown filed in this Court: 1. Breaking & Entering, with Intent – s. 348(1)(a). 2. Committing Mischief that Caused Actual Danger to Life – s. 430(2). 3. Possessing Stolen Goods – s. 354(1). 4. Possessing Break-In Instruments – s. 351(1). I will address each in turn. 1. Break & Entry with Intent [109] Section 348(1)(

a) of the Criminal Code says that “[e]veryone who (

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

e) if the offence is committed in relation to a place other than a dwelling-house, of an indictableoffence and liable to imprisonment for a term not exceeding ten year…”. [110] Here the evidence shows that the NL Power substation in Grand Bank is surrounded by a chain-link fence, to which access isgained by a locked gate. Cpl.

McGrath took pictures of a hole cut in the fence, through which both Jason Rose and Derek Inkpen sawone or two of the people that were inside the compound escape after they arrived on site. [111] It is reasonable to conclude that some or all of the thieves gained access to the compound by passing through the hole, or as Mr.Rose and Mr. Inkpen both observed, jumping the fence; and further that those outside acted in concert with them by receiving the wirethat they passed through the fence. I gave my reasons earlier for finding beyond a reasonable doubt that Mr.

Boland was one of thepersons on site and active in the break and entry. I find him guilty of break & entry with intent because on these actions. [112] I note as well, s. 348(2)(

a) of the Criminal Code provides that “evidence that an accused (

a) broke and entered a place…, is in theabsence of evidence to the contrary, proof that he broke and entered the place…, with intent to commit an indictable offence therein”. [113] A question arose if I might also apply the “doctrine of recent possession” to find Mr. Boland guilty of breaking and entering withintent. The doctrine holds that “[u]pon proof of the unexplained possession of recently stolen property, the trier of fact may — but notmust — draw an inference of guilt of theft or of offences incidental thereto”: R. v. Kowlyk, (SCC), [1988] 2 S.C.R. 59,page 74. [114] A similar question arose in R. v.

Pitcher, to which I referred earlier in these reasons. Mr. Pitcher was charged with breaking intothe Lions Club at Arnold’s Cove, NL and stealing an ATM. The police eventually located the ATM at a dump site in nearby SouthernHarbour. The Crown’s case against Mr. Pitcher was, as I noted above, based entirely on circumstantial evidence. [115] The trial judge convicted him and relied, in part, on the doctrine of recent possession. Mr. Pitcher appealed.

The Court of Appealupheld his conviction by a unanimous decision, but the learned justices disagreed if the doctrine of recent possession was “engaged in thecircumstances of this case” (Pitcher, paragraph 20). [116] Welsh, J.A., who wrote the majority decision, said that it was not: …[I]n this case, Mr. Pitcher was never actually seen or found in possession of the ATM. The possession involved in this case is thatwhich is inherent in the taking of the item.

The circumstantial evidence here, particularly the effect of the surveillance activities by thepolice, leads inexorably to only one rational inference; that is, that Mr. Pitcher broke into the Lions Club and "took" the ATM intendingto deprive the rightful owner of that property. This is sufficient, without reference to recent possession, to establish the offence. (Pitcher, paragraph 22) [117] Hoegg, J.A. (with whom Harrington, J.A. concurred on this point) thought that the doctrine of recent possession was engaged: In this case, the strong circumstantial evidence established that Mr.

Pitcher was in possession of the very ATM that had been stolen fromthe Lions Club earlier that night. This was found as a fact by the trial judge (paragraphs 38 and 44). Mr. Pitcher did not testify. Noexplanation was advanced for his being in lawful possession of the ATM, or otherwise refuting the evidence of his possession of it. In my view, the trial judge properly and necessarily invoked the doctrine of recent possession to convict Mr. Pitcher of the underlyingoffence of break, entry and theft, a finding to which deference is owed by this Court.

Without application of the doctrine, the evidencefalls short of supporting the conviction for break, entry and theft, and I would be unable to uphold Mr. Pitcher's conviction.

[ 118 ] In this case, as the trial judge did in Pitcher , I relied on strong circumstantial evidence to find Mr. Boland guilty of breaking and entering with intent. As Welsh, J.A. said in Pitcher (paragraph 22 ), “[t]he circumstantial evidence here…leads inexorably to only one rational inference; that is, that Mr. Pitcher broke into the Lions Club and ‘took’ the ATM intending to deprive the rightful owner of that property. This is sufficient, without reference to recent possession, to establish the offence”; and so, it is here. [ 119 ] It is also true of Mr. Boland, as Welsh, J.A. said of Mr.

Pitcher, that “…[he] was never actually seen or found in possession of the ATM. The possession involved in this case is that which is inherent in the taking of the item” ( Pitcher , paragraph 22 ). For these reasons, I decline to invoke the doctrine of recent possession. 2. Committing Mischief that Caused Actual Danger to Life [ 120 ] The evidence the Crown led in this matter proved beyond a reasonable doubt that those on site when the NL Power employees arrived at the substation caused serious damage to it.

They tore copper wire from the ground, they cut it away from transformers and other equipment and seriously compromised the integrity of the safety grid that kept the electrical supply to the substation stable. [ 121 ] Jason Rose and Derek Inkpen both said they would not enter the compound when they saw how the grounding network was disrupted and also said that it was unsafe for anyone to enter for 3 to 4 hours after they arrived, as NL Power employees operating remotely did remedial work. In fact, Mr. Inkpen said he was afraid even to touch the chain-link fence because it too might be charged.

They described an extreme risk of electrocution and possible death. [ 122 ] I find beyond a reasonable doubt that the damage Mr. Boland and his associates did to the ground wire grid of the substation caused actual danger to their own lives, to the lives of the NL Power employees, to the RCMP officers on the scene and to any other members of the public who might have been exposed to the danger. 3. Possessing Stolen Goods [ 123 ] Section 354(1) (

a) of the Criminal Code says that “[e]very one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from (

a) the commission in Canada of an offence punishable by indictment”. [ 124 ] Section 4(3) of the Criminal Code defines “possession” this way: (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [ 125 ] Mr. Boland and his associates stole copper ground wire at the substation in Grand Bank when they broke in there. They placed that copper wire in Mr. Boland’s car. The circumstantial evidence the Crown led, proved beyond a reasonable doubt that Mr.

Boland was in actual or constructive control of his vehicle throughout the incident and he was thereby in possession of the stolen goods in the trunk of his car. As Welsh, J.A. said in Pitcher , “the possession involved in this case is that which is inherent in the taking of the item”. 4. Possessing Break-In Instruments [ 126 ] Mr. Boland acknowledged that the garden shears, the pliers and the wire strippers belonged to him and were in the trunk of his car. He denied that the bolt cutters belonged to him, but I do not accept his evidence and I find they either belonged to him or were under his control.

The same definition of “possession” applies here as to the previous offence. The circumstantial evidence the Crown led, proved beyond a reasonable doubt that Mr. Boland was in actual or constructive control of his vehicle throughout the incident and he was thereby in possession of the break-in instruments in the trunk of his car. [ 127 ] Overall, I am satisfied beyond a reasonable doubt that Mr. Boland is guilty of each of these offences and the record will show my finding.

SUMMARY AND DISPOSITION [ 128 ] Brandon Boland pleaded not guilty to breaking and entering with intent to commit an indictable offence; committing mischief that caused actual danger to life to the public; possessing stolen goods; and possessing instruments for breaking into a place. [ 129 ] The Court found that the Crown proved Mr. Boland guilty beyond a reasonable doubt of all offences and remanded him in custody for sentencing. ORDER [ 130 ] In the result: 1. I find that the Crown proved Brandon Boland guilty beyond a reasonable doubt of all charges.

2. I remand Brandon Boland in custody for sentencing. _____________________________ Garrett A. Handrigan Justice