R. v. McWhirter, (1983) 43 Nfld. & P.E.I.R. 295 (NFPC)

• Judge: Luther, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: September 20, 1983
• Jurisdiction: Newfoundland and Labrador
• Citations: (1983), 43 Nfld. & P.E.I.R. 295 (NFPC)

R. v. McWhirter (1983), 43 Nfld. & P.E.I.R. 295 (NFPC);

    127 A.P.R. 295

MLB headnote and full text

R. v. McWhirter

Indexed As: R. v. McWhirter

Newfoundland Provincial Court

District of Corner Brook

Luther, P.C.J.

September 20, 1983.

Summary:

The accused was charged in August 1983 with drug and narcotic offences alleged to have been committed in June 1981. The accused applied to dismiss the charges on the ground that he was not to be tried within a reasonable time contrary to s. 11(b) of the Canadian Charter of Rights and Freedoms.

The Newfoundland Provincial Court allowed the application.

Civil Rights - Topic 3265

Trials - Due process and fair hearings - Speedy trial - Accused's right to - Reasonable time - What constitutes - Canadian Charter of Rights and Freedoms, s. 11(b) - The accused was charged in August 1983 with narcotics and drug offences alleged to have been committed in June 1981 - The Newfoundland Provincial Court dismissed the charges on the ground that the accused was denied his right to be tried within a reasonable time contrary to s. 11(b) of the Charter - The court held that the trial must occur within reasonable time of the date of the offence, not the date the information is laid - See paragraph 28 - The court held that the Crown must offer some explanation of a delay - See paragraph 17 - The court set out the considerations for determining reasonable time - See paragraphs 20 to 23.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application - General - The Newfoundland Provincial Court held that in determining whether an accused has been denied his right to trial within a reasonable time, delay prior to the coming into effect of the Charter could be considered - See paragraphs 24 to 25.

Civil Rights - Topic 8369

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Dismissal of charge - The Newfoundland Provincial Court in dismissing charges against an accused because of a denial of the accused's right to a trial within a reasonable time noted that dismissal of the charge was the only possible remedy to protect the accused's right - See paragraph 31.

Civil Rights - Topic 8467

Canadian Charter of Rights and Freedoms - Interpretation - Interrelationship among Charter rights - The Newfoundland Provincial Court stated that the preferable approach in determining whether an accused's rights have been denied is to deal with the Charter rights in conjunction with each other - See paragraph 27.

Civil Rights - Topic 8504

Canadian Charter of Rights and Freedoms - Enforcement - Jurisdiction - The Newfoundland Provincial Court held that it was a court of competent jurisdiction for purposes of an application to determine whether an accused's Charter rights had been violated - See paragraph 30.

Cases Noticed:

U.S. v. Ewell, 383 U.S. 116, consd. [para. 11].

U.S. v. Marion, 404 U.S. 307, dist. [para. 12].

U.S. v. MacDonald, [1982] S. Ct. 1497, consd. [para. 13].

U.S. v. Lovasco, 431 U.S. 783, consd. [para. 19].

R. v. Ahearn (1983), 40 Nfld. & P.E.I.R. 345; 115 A.P.R. 345; 19 M.V.R. 199 (P.E.I.S.C.), appld. [para. 30].

R. v. Oakes, 2 C.C.C.(3d) 339, appld. [para. 30].

Strunk v. U.S., 412 U.S. 434, appld. [para. 31].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 8]; sect. 11(b), sect. 11(d) [para. 7]; sect. 11(e) [para. 28].

Authors and Works Noticed:

Bellemare, Daniel A., Right to a Speedy Trial [para. 15].

Counsel:

Neil Robinson, for the Crown;

Nicholas Avis, for the accused.

This case was heard at Cornerbrook, Newfoundland, before Luther, P.C.J., of the Newfoundland Provincial Court, District of Cornerbrook, who delivered the following judgment on September 20, 1983: