R. v. Whelan, 2013 NLCA 20

Date: 2013031 4 Docket: 12/64 Citation: R. v. Whelan , 2013 NLCA 20 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : DAVID WHELAN APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Green C.J.N.L., Rowe and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201201G3747 Appeal Heard: March 4, 2013 Judgment Rendered: March 14, 2013 Reasons for Judgment by Rowe J.A. Concurred in by Green C.J.N.L. and Hoegg J.A. Counsel for the Appellant: Self Represented Counsel for the Respondent: Frances Knickle

Rowe J.A.: [1] The appellant, David Whelan, is a taxi driver. On February 26, 2012, an RCMP constable stopped him on the Trans-CanadaHighway and gave him a speeding ticket. [2] Mr. Whelan pleaded not guilty. A date was set for the trial. Mr. Whelan requested disclosure. This was provided to theCrown by the police, but was not provided by the Crown to Mr. Whelan before the trial date. [3] Mr. Whelan did not appear for the trial. In his absence, the case was called, the RCMP officer testified (in accordance withthe procedure outlined in R. v. Sheppard (1995), (NL SC), 130 Nfld. & P.E.I.R. 228 (Nfld.

T.D.) per Green J.) thatMr. Whelan’s car was traveling at 140 kilometres per hour or 40 kilometres per hour over the speed limit, and a conviction was entered. [4] Mr. Whelan appealed the conviction to the Supreme Court Trial Division. There, Mr. Whelan outlined that he did not attendat the appointed time because he was awaiting disclosure and assumed the trial would not proceed until he received it. The TrialDivision judge quite properly made it clear to Mr. Whelan that he had an obligation to appear in court whether or not he had receiveddisclosure. [5] Mr.

Whelan went on to provide an explanation for his speeding, that he was being intimidated by an erratic and aggressivedriver, whom he was seeking to get away from. This did not sway the Trial Division judge. He dismissed Mr. Whelan’s appeal. [6] Mr. Whelan seeks leave to appeal. As this Court recently stated in R. v. Gosse, 2012 NLCA 78 at para. 13: [I]t will be only in rare circumstances that this Court will grant leave to appeal where the appellant has failed to appear for hearings inprovincial court ….

Citizens charged with a regulatory offence have a fundamental responsibility to appear at the time set for thehearing of the charges or, if that is not possible, to request that the matter be set for an alternate time. [7] That said, it was the Crown’s failure to provide disclosure that was at the root of Mr. Whelan’s confusion. There is nosuggestion that Mr. Whelan’s mistaken assumption – arising as it did from the Crown’s failure to disclose – was not bona fide. TheCrown cannot rely on Mr. Whelan’s admittedly ill-advised decision not to appear, when its inaction precipitated Mr. Whelan’sassumption.

This is one of those “rare circumstances” mentioned in Gosse which justifies Mr. Whelan having his day in court. Leave toappeal is granted (see R. v. Newfoundland Recycling Ltd., 2009 NLCA 28, 284 Nfld. & P.E.I.R. 153), the appeal is allowed, theconviction is set aside and a new trial is ordered. _____________________________ M. H. Rowe J.A. I Concur: ____________________________ J. D. Green C.J.N.L. I Concur: ____________________________ L. R. Hoegg J.A.