R. v. Blok-Andersen, 2015 NLCA 13

Date: 20150313 Docket: 14/107 Citation: R. v. Blok-Andersen , 2015 NLCA 13 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : PETER BLOK-ANDERSEN APPLICANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh J.A. Application Heard: February 25, 2015 Decision Rendered: March 13, 2015 Reasons for Decision by Welsh J.A. Counsel for the Applicant: John W. Lavers Counsel for the Respondent: Robin Fowler Welsh J.A.: [ 1 ] On June 22, 2014, Peter Blok-Andersen, having been found guilty by a jury, was convicted of the commission of an indictable offence involving a criminal organization (

section 467.12(1) of the Criminal Code ) and possession of cocaine for the purpose of trafficking (section 5 of the Controlled Drugs and Substances Act ). He was sentenced to 1.5 years imprisonment for the criminal organization offence and 5.5 years for the trafficking offence, the sentences to be served consecutively for a total of 7 years minus credit for time served. [ 2 ] Mr. Blok-Andersen is appealing his convictions and sentence. The transcript is expected to be completed by June 30, 2015. As agreed by counsel, the hearing of the appeal is scheduled for October 14, 2015. In the meantime, Mr.

Blok-Andersen is applying for judicial interim release. [ 3 ] Judicial interim release is governed by

section 679 of the Criminal Code . Subsection (3) provides that a judge of the appeal court: … may order that the appellant be released pending the determination of his appeal if the appellant establishes that (

a) the appeal … is not frivolous; (

b) he will surrender himself into custody in accordance with the terms of the order; and

(

c) his detention is not necessary in the public interest. All three criteria must be met. [ 4 ] The test for whether an appeal is frivolous is whether there is an arguable case. The Crown submits that none of the grounds for Mr. Blok-Andersen’s appeal satisfies that requirement. By way of background, counsel for Mr. Blok-Andersen submits that, because he was not counsel at trial, having become involved only at the time of sentencing, he requires the complete transcript in order to respond to the Crown’s submissions.

However, he concedes that, at the sentencing hearing, there was a comprehensive review of the evidence before the jury, which is included in the Crown’s submissions on this application. [ 5 ] At the sentencing hearing, counsel for Mr. Blok-Andersen raised, for the first time, legal arguments under

section 7 of the Canadian Charter of Rights and Freedoms based on allegations of abuse of process and entrapment. The jury having completed its function and rendered guilty verdicts, and having been dismissed, the judge concluded that she had no jurisdiction to consider those issues. Based on relevant Supreme Court of Canada case law, the Crown submits that the trial judge did not err in concluding that the only option available to Mr.

Blok-Andersen in those circumstances is an appeal. [ 6 ] Regarding entrapment as a ground of appeal, the Crown submits that that defence could not succeed on the facts since the police had no contact with Mr. Blok-Andersen until he was arrested. [ 7 ] Regarding abuse of process, Mr. Blok-Andersen submits that errors in the dates referred to in the indictments may have caused confusion for the jury. The Crown responds that, at trial, counsel did not raise any question regarding the dates, and that, if it was necessary, the indictments could have been amended. Further, the Crown notes that Mr.

Blok-Andersen and his co-accused signed a statement of admissions on April 23, 2014, filed with the Court, in which they acknowledged that the dates and places in the indictment were correct. [ 8 ] Mr. Blok-Andersen also submits that the evidence may not support the convictions as charged. He refers to

section 467.12 (commission of an offence for a criminal organization) when the facts are considered in light of

section 467.11 (participation in activities of a criminal organization). There is insufficient information on which to assess this contention and its potential effect. Again, this issue was not raised by defence counsel at trial. [ 9 ] Counsel for the Crown, in his written submissions, addressed the remaining grounds of appeal in detail, providing information to demonstrate that those grounds are without foundation and, in some cases, are based on erroneous facts. [ 10 ] In

summary, based on the submissions of Mr. Blok-Andersen and the Crown, it is difficult to conclude that Mr. Blok-Andersen has an arguable case in an appeal against his convictions. [ 11 ] Regarding the second criterion under

section 679 of the Code , Mr. Blok-Andersen submits that his circumstances and past behavior support the conclusion that he would surrender himself into custody in accordance with the terms of a court order. He points to the fact that he was on judicial interim release pending trial for four years and that he adhered to the conditions of release during that time. Prior to his incarceration, he was taking courses and states that he has been self-employed in the construction industry. [ 12 ] The Crown responds that Mr.

Blok-Andersen has no ties to this jurisdiction and points to his intention to return to British Columbia. He is thirty-two years of age, single, with no dependents. Unlike prior to conviction, he now faces a lengthy prison sentence. [ 13 ] On balance, Mr. Blok-Andersen has not established sufficient basis on which to conclude that he would surrender himself into custody when required. He indicated an intention to live outside this jurisdiction, he is thirty-two years of age, and has no apparent family or work ties that would engender confidence in the stability of his personal life.

I agree with the Crown that the situation is altered from prior to trial, now that he is facing a seven-year sentence if his appeal is dismissed. [ 14 ] Regarding the third criterion under

section 679, Mr. Blok-Andersen submits that his detention is not necessary in the public interest. The Crown responds that Mr. Blok-Andersen has been convicted of trafficking in cocaine involving a criminal organization. The offences were serious. While the evidence did not establish that Mr. Blok-Andersen was a directing mind behind the criminal operation, he was involved to an extent beyond the street-level trafficker. His conviction indicates that he was an important cog in the machinery of the criminal organization enabling the trafficking of significant amounts of cocaine in this Province.

Trafficking in cocaine, particularly where a criminal organization is involved, is a matter of serious public concern. In the circumstances, I am not satisfied that Mr. Blok-Andersen has established that his detention is not necessary in the public interest. [ 15 ] To summarize, I am not satisfied that Mr. Blok-Andersen has established any of the criteria enumerated in

section 679 of the Criminal Code . Insofar as the grounds of appeal can be assessed at this stage, they are tenuous at best. On balance, the information is insufficient to establish that Mr. Blok-Andersen would surrender himself into custody as required. Finally, he failed to establish that his detention is not necessary in the public interest. [ 16 ] Accordingly, Mr. Blok-Andersen’s application for judicial interim release is denied. ____________________________________ B. G. Welsh J.A.