SUPERIOR COURT OF JUSTICE

Court File No. CR-19-00000004-0000

HER MAJESTY THE QUEEN

v.

BRYAN BOLAND

P R O C E E D I N G S

BEFORE THE HONOURABLE JUSTICE M. FUERST

on June 21, 2019, at BARRIE, Ontario

APPEARANCES:

P. Westgate Counsel for the Crown

J. Fitzmaurice Counsel for Bryan Boland

T A B L E O F C O N T E N T S

REASONS FOR SENTENCE 1

LEGEND [sic] Indicates preceding word has been reproduced verbatim and is not a transcription error (ph) Indicates preceding word has been spelled phonetically ... Indicates interruption .... Indicates incomplete thought and/or interruption

Transcript Ordered: June 24, 2019

Transcript Completed: July 26, 2019

Ordering Party Notified: July 30, 2019

FRIDAY, JUNE 21, 2019

R E A S O N S F O R S E N T E N C E

FUERST, J. (Orally):

INTRODUCTION

Bryan Boland shot and killed his wife of 46 years, Wendy Boland, on the driveway of their Bracebridge home.

Mr. Boland pleaded guilty to second degree murder. He will be sentenced to life imprisonment. The issue is the period of time that he will be required to serve in the penitentiary before he becomes eligible for parole.

It is important to note that regardless of the period of parole ineligibility imposed on an offender who is convicted of second degree murder, the sentence remains one of life imprisonment. The sentencing judge does not decide when the offender should be paroled, but merely the period he must serve before parole can even be considered: see R. v. Trudeau (1987), 24 O.A.C. 376 (C.A.).

THE PRINCIPLES GOVERNING THE PAROLE INELIGIBILITY DETERMINATION

Section 745(c) of the Criminal Code provides that on conviction for second degree murder, the offender must be sentenced to life imprisonment with no eligibility for parole for a fixed period ranging from a minimum of 10 to a maximum of 25 years.

Section 745.4 specifically empowers the sentencing judge to increase the parole ineligibility period from the minimum of 10 years to the period that the judge deems fit, up to the maximum of 25 years.

In exercising his or her discretion under section 745.4, the sentencing judge must have regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation of the jury, if any.

As a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by the sentencing judge’s determination that, according to the criteria set out in s.745.4, the offender should wait a longer period before having his suitability for release assessed. The determination of the parole ineligibility period is “a very fact-sensitive process”: R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at paragraph 18. The sliding scale of parole ineligibility reflects the fact that “within second degree murder there is both a range of seriousness and varying degrees of moral culpability”: Shropshire at paragraph 31.

An increased parole ineligibility period does not require unusual circumstances: see Shropshire, at paragraphs 26 to 27.

In R. v. McKnight, (1999) 1999 3717 (ON CA), 44 O.R. (3d) 263, the Court of Appeal for Ontario held that in assessing the s.745.4 criteria and in deciding whether to increase the period of parole ineligibility, all of the objectives of sentencing are relevant. Those objectives, as set out in s.718, are denunciation of unlawful conduct and the harm caused to victims or to the community, deterrence both general and specific, the separation of offenders from society where necessary, rehabilitation, reparation for harm done to victims or to the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community. The court, however, observed in McKnight that the statutory ten year minimum ineligibility period limits the weight that can be accorded to the offender’s prospects of rehabilitation.

I turn now to the factors specified in section 745.4.

THE NATURE OF THE OFFENCE AND THE CIRCUMSTANCES SURROUNDING ITS COMMISSION

As of May 2017, the marriage of Bryan and Wendy Boland was a very unhappy one. Mr. Boland is an alcoholic. He suffered a stroke earlier in 2017, from which he recovered physically, but he became angrier and meaner. He displayed signs of paranoia. He expressed suicidal thoughts. And, he continued to drink, despite medical recommendation that he not do so.

Mr. Boland and his wife, who I will refer to as “Wendy” for ease of reference, slept in separate bedrooms. Unknown to him, she had begun to look for another place to live.

On the evening of May 26, 2017, Mr. Boland had been drinking. He arrived home just before 8:00 p.m. According to his grandson, he was drunk.

Mr. Boland and Wendy began to argue. She called him an alcoholic. He became verbally aggressive with her. He disparaged her in profane language. He accused her of sleeping with his brother. She denied doing so.

After Mr. Boland went to his bedroom, Wendy called his brother and his brother’s wife. She told them that Mr. Boland was drunk and out of control.

Mr. Boland came out of the bedroom and demanded to know to whom Wendy was talking. He hung up the phone.

At 8:46 p.m. Wendy called her sister-in-law again, and said that Mr. Boland had kicked her out of the house.

Meanwhile, Mr. Boland retrieved a 12 gauge pump action shotgun from a locked armoire inside the house. He loaded the shotgun, and went out the front door. Wendy was standing in their driveway. He screamed that he was going to kill her. He shot her in the upper back area of the torso. She fell on the driveway. Mr. Boland said, “I killed the bitch.”

Three teenagers passed by the house. Mr. Boland told them to leave or they would be next.

Mr. Boland went into the house and phoned the couple’s son. He said, “I killed your mother. I’m sorry.”

At some point, Mr. Boland shot Wendy a second time, in the head, from within four feet.

The Bolands’ son drove to the house. Mr. Boland was outside, wearing only his underwear. He pointed the gun at his son and told him to get out of there.

At 9:22 p.m. two police officers arrived. When one of them commanded that Mr. Boland show his hands, Mr. Boland told the officers to stay back or he would shoot them too.

The Bolands’ son shouted that Mr. Boland might as well kill himself. Mr. Boland held the shotgun up to his face and fired, attempting to kill himself. He then laid the gun on Wendy’s back.

At that point Mr. Boland was arrested.

Paramedics arrived, but Wendy Boland was dead.

Mr. Boland was taken to a police division where he was permitted to telephone his lawyer. In front of police officers, he told the lawyer that he had shot his wife.

Wendy Boland was 64 years old at the time of her death. She was the mother of two children with Mr. Boland, and grandmother of six. Her siblings describe her in their Victim Impact Statements as a kind, caring, and gentle person.

THE CHARACTER OF THE OFFENDER

Mr. Boland is now 67 years old. He is of Aboriginal heritage through his father. He waived the preparation of a Gladue report for the purpose of his sentencing.

Mr. Boland’s childhood was difficult. It was marked by violence in the home. His father was a weekend drunk who regularly beat him and one of his three brothers. His mother was never around. She reportedly left her sons with two men, one of whom Mr. Boland accused of abusing him.

Notwithstanding his problem with alcohol, Mr. Boland worked for the same employer for 38 years, until he was retired in a company downsizing in 2015.

He has no prior criminal record.

After his arrest, he gave the children his interest in the matrimonial home and its chattels.

THE POSITIONS OF THE PARTIES

Crown and defence counsel jointly submit that Mr. Boland should be sentenced to life imprisonment with no eligibility for parole for 10 years. Crown counsel seeks a DNA order and section 109 weapons prohibition order for life, which the defence does not oppose.

ANALYSIS

There can be no doubt that the circumstances of Wendy Boland’s murder at her husband’s hands were horrific. In an alcohol-fuelled rage, he retrieved a shotgun from a locked armoire, loaded it, and then followed his wife outside, where he had expelled her from her own home. She was unarmed, and had no opportunity to defend herself or to escape him. After incapacitating her with one shot, he fired a second shot into her head at close range, and so, ensured her death.

I recognize, however, that there is a constellation of mitigating factors. Mr. Boland is a first offender. He is of Aboriginal heritage. Despite a problematic upbringing, he held stable employment throughout his adult life. He pleaded guilty to the offence with which he is charged, which is a sign of remorse and willingness to accept responsibility for his crime. I accept that he instructed his counsel some time ago that he wished to plead guilty to second degree murder, notwithstanding the existence of defences that Crown counsel acknowledged were viable. This is important, as it indicates a strong measure of remorse on Mr. Boland’s part and some appreciation of the harm that he has caused to his family. By his plea, he saved weeks of court time. More importantly, he brought a measure of closure to his children and to his late wife’s siblings, who otherwise would have had to endure the emotional agony and uncertainty of a trial. He has attempted to do the right thing by his children, signing over to them his interest in the matrimonial home and property.

I also take into account that given Mr. Boland’s age, any parole ineligibility period that I impose may well mean that he spends the rest of his life in jail.

In the McKnight decision, the Court of Appeal for Ontario identified a range of parole ineligibility of 12 to 15 years for brutal second degree murders of an unarmed wife or girlfriend. However, the Supreme Court of Canada cautioned in R. v. Lacasse, 2015 SCC 64 that even where sentencing ranges are identified, they are guidelines and not hard and fast rules. They are not straightjackets to the exercise of a sentencing judge’s discretion.

CONCLUSION

Significant periods of parole ineligibility should be the norm in cases of domestic murder, to express the community’s abhorrence of this most extreme form of violence, usually perpetrated against women, and to deter other likeminded individuals.

In this case, however, Crown and defence counsel who are very familiar with the evidence in the case and the background circumstances, jointly submitted that the minimum period of parole ineligibility should be imposed. I agree with them that this is a case in which a parole ineligibility period below the range identified in McKnight is appropriate.

Mr. Boland, please stand.

I sentence you to life imprisonment with no eligibility for parole 10 years. The sentence began to run on May 26, 2017.

There is a DNA order and a s.109 weapons prohibition order for life.

You may be seated.

Is there anything, Mr. Fitzmaurice that needs to be addressed?

MR. FITZMAURICE: No. No, except to say thank you, Your Honour, for all your efforts you’ve made to bring this case to a resolution. I’m very grateful and I’m also grateful to Mr. Westgate for the very fair position he took, thank you.

THE COURT: Mr. Westgate, anything that needs to be addressed?

MR. WESTGATE: I don’t think so, Your Honour. There is some disposition of property, but I think I’ll be able to arrange that with the police and the family in regards to that.

THE COURT: All right. Thank you. Mr. Boland is sentenced to life imprisonment with no parole eligibility for 10 years. The sentence began to run on May 26, 2017. There is a DNA order and a section 109 order for life.

I appreciate this was a very difficult case. I know that both Crown and defence counsel worked diligently on their respective sides of the matter and then worked carefully to see whether a resolution could be achieved, and I appreciate the work that all put in to the matter. Thank you.

MR. WESTGATE: Thank you very much.

THE COURT: And thank you to those who have come from the community and family members.

MR. WESTGATE: Thank you and those are my matters if I might be excused. Thank you.

E N D O F P R O C E E D I N G S