DATE: 19990205 CAC:147502
NOVA SCOTIA COURT OF APPEAL
Cite as: R. v. Andersen, 1999 NSCA 15
BETWEEN:
DONALD ROBERT ANDERSEN ) Donald R. Andersen
) in person
Appellant/Applicant )
)
)
- and - )
)
) Kenneth W. F. Fiske,
HER MAJESTY THE QUEEN ) for the Respondent
)
Respondent )
) Application Heard:
) February 4, 1999
)
) Decision Delivered:
) February 5, 1999
)
)
BEFORE THE HONOURABLE JUSTICE RONALD N. PUGSLEY,
IN CHAMBERS
Pugsley, J.A. (In Chambers):
This is an application for release pending appeal pursuant to s. 679(3) of the Criminal Code, R.S.C. 1985, C-46.
The Crown opposes the application.
On April 30, 1998, the appellant/applicant, Donald Robert Andersen, age 56, represented then by counsel, but now self-represented, was found guilty by a jury of:
- breaking and entering a dwelling house with intent to commit an indictable offence contrary to s. 348(1)(a) of the Code;
- assaulting his wife, Kathleen Mary Andersen, with a weapon, contrary to s. 267 of the Code;
- assaulting Robert Samuel Wilson, with a weapon, contrary to s. 267 of the Code;
- failing to keep the peace and be of good behaviour, thereby wilfully breaking a probation order, contrary to s. 733(1) of the Code.
Mr. Andersen was sentenced by Justice Saunders of the Supreme Court on May 28, 1998, to a period of imprisonment of five years for the first conviction; eighteen months' imprisonment, consecutive to the first sentence, for the second conviction; eighteen months' imprisonment, concurrent, for the third conviction; and imprisonment of twelve months, consecutive, for the fourth conviction.
Upon being given credit for time on remand, the total period of imprisonment, on aggregate, was seven and one-half (71/2) years.
Mr. Andersen has appealed his convictions and sets out his grounds as follows:
My rights were violated when I requested to phone a lawyer, when I was arrested at the home of Charlie Davidisons, Charter 10-6 also Charter 8 Search and Seizure. No evidence to support the charges, other than Mary Kathleen Andersen and Robert S. Wilson who has a memory lost. Pictures of Kathy and Bob. A bloodstain blanket, the crime unit from Truro were on the sence. There were no fingerprints taken of the door or the flashlight, no analysis done of the blood on the blanket or, if in fact it was blood. An awfull sloopy investigation by the police (RCMP) and because of it another wrongfull conviction.
All to be explain at hearing.
The appeal has been set down for hearing by this Court on March 16, 1999, at 2:00 p.m.
Section 679(3) of the Code provides that the appellant may be released pending the determination of his appeal if he establishes that the appeal is not frivolous, that he will surrender himself into custody in accordance with the terms of the order, and that his detention is not necessary in the public interest.
Mr. Andersen has an extremely lengthy criminal record, commencing in February of 1958.
According to the record of criminal convictions placed before this Court, a copy of which was forwarded to Mr. Andersen, he has been convicted of approximately 38 diverse criminal offences, ranging from fraud and false pretenses to crimes of violence, including rape, sexual assault, assaults with weapons, and obstructing a police officer.
He has a history of breaking court orders, including violating parole, failure to comply with probation orders, failure to comply with conditions of undertaking, and failure to appear. The latter conviction, according to the record, occurred on January 26, 1979, in Prince Albert, Saskatchewan. Mr. Andersen represented to the Court, at this hearing, that he had never been in Prince Albert and that he was not guilty of this particular offence.
At the time of sentencing, Justice Saunders described some “aggravating circumstances” of the offences which had resulted in the April 30, 1998, convictions. Justice Saunders referred to:
1. Your lengthy criminal record. Leniency and opportunities for rehabilitation and reformation have been extended to you before, evidently to no or not much avail. Your criminal behaviour in this case shows a flagrant disregard for authority and, in particular, valid orders of a court of competent jurisdiction. You were on probation, Mr. Andersen, at the time of this offence. In attacking Ms. Andersen and Mr. Wilson, you embarked on criminal conduct knowing full well that it would violate the terms of your probation order.
2. You used stealth and planning in breaking into Mr. Wilson's home undetected.
3. A perfectly logical inference is that you cut the phone lines in order to prevent either victim from calling for help.
4 By surprising them in bed at 4:30 in the morning, you had every advantage and left them with no chance to defend themselves.
5. You physically abused your wife by striking her with a flashlight. . . .
6. You repeatedly struck Mr. Wilson in the face and head when he was practically incapacitated and incapable of defending himself.
On this application, Mr. Andersen advised that one of the complainants, Robert Samuel Wilson, had told him that he could stay at Mr. Wilson’s house in the event this application for release pending appeal was granted. Even if the representation were valid, it does not directly bear on the three-part test Mr. Anderson is required to satisfy under s. 679(3).
Mr. Andersen submitted that it was much easier for him to obtain a lawyer if he were not incarcerated. He did acknowledge, however, that he had access to phones in the penitentiary and that Legal Aid had granted funding to a lawyer respecting his appeal.
I agree with the comments of Chief Justice MacEachern in R. V. Nguyen (1997), 119 C.C.C. (3d) 269, that in most applications for release pending appeal, there will be “special circumstances” arising from the events surrounding the crime, as well as the circumstances of the offender, which will serve as indicators as to whether an appellant should or should not be released.
Considering the special circumstances of these offences, as detailed by Justice Saunders, as well as the nature and extent of Mr. Andersen’s criminal record, even without considering the Prince Albert conviction, I am not satisfied that he has established that he would surrender himself into custody in accordance with the terms of any release order, nor am I satisfied that his detention is not necessary in the public interest. In fact, on the basis of the evidence before me, I conclude that Mr. Andersen's release pending the hearing of his appeal, which is only six weeks away, would tend to undermine public confidence in the administration of justice.
I express no opinion as to whether or not the appeal is frivolous, as there is not sufficient information before me to weigh the merits of the grounds advanced.
I dismiss the application for release.
Pugsley, J.A.
C.A.C. No.147502
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
)
DONALD ROBERT ANDERSEN)
)
Applicant/Appellant )
)
) BEFORE THE
- AND - ) HONOURABLE ) JUSTICE
HER MAJESTY THE QUEEN ) RONALD PUGSLEY
) (IN CHAMBERS)
)
Respondent )
)
)
)