R. v. Bruha (P.P.), (2006) 384 A.R. 125 (NWTCA)

JudgeFraser, C.J.N.W.T., Richard and O'Brien, JJ.A.
CourtCourt of Appeal (Northwest Territories)
Case DateOctober 18, 2005
JurisdictionNorthwest Territories
Citations(2006), 384 A.R. 125 (NWTCA)

R. v. Bruha (P.P.) (2006), 384 A.R. 125 (NWTCA);

    367 W.A.C. 125

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. MR.093

Pavel Paul Bruha (appellant) v. Her Majesty the Queen (respondent)

(A-1-AP-2003000018; 2006 NWTCA 1)

Indexed As: R. v. Bruha (P.P.)

Northwest Territories Court of Appeal

Fraser, C.J.N.W.T., Richard and O'Brien, JJ.A.

February 27, 2006.

Summary:

An accused appealed his manslaughter conviction.

The Northwest Territories Court of Appeal allowed the appeal and ordered a new trial.

Civil Rights - Topic 3126

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Fair hearing - What constitutes - Prior to his second degree murder trial, Bruha was granted a pardon for previous criminal convictions - Police failed to disclose the pardon's existence - Credibility was an issue at his trial - The Crown cross-examined Bruha on his criminal record - The trial judge instructed the jury that it could take his record into account in assessing Bruha's credibility - Bruha was convicted of manslaughter - Bruha appealed, asserting that the Crown's line of questioning had prejudiced his fair trial right - The Northwest Territories Court of Appeal allowed the appeal and ordered a new trial - Because of the non-disclosure, the defence had lost the opportunity to request the trial judge to restrict cross-examination on Bruha's pardoned offences, either in total or on terms - Because the trial turned on an assessment of credibility, that absence of restriction amounted to serious prejudice of Bruha's fair trial right - There was a reasonable possibility that the verdict might have been different had the pardon's existence been disclosed - See paragraphs 17 to 21.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See Civil Rights - Topic 3126 ].

Criminal Law - Topic 4953

Appeals - Indictable offences - New trials - Grounds - Admission of prejudicial evidence - [See Civil Rights - Topic 3126 ].

Criminal Law - Topic 5007

Appeals - Indictable offences - Review of verdicts - Where verdict based on findings of credibility - [See Civil Rights - Topic 3126 ].

Practice - Topic 6270

Judgments and orders - Administrative orders - Collateral attack - Prior to his second degree murder trial, Bruha was granted a pardon for previous criminal convictions - Police failed to disclose the pardon's existence - The Crown cross-examined Bruha on his record - Bruha was convicted of manslaughter - Bruja appealed, asserting that the Crown's line of questioning had not been open to it and had prejudiced his fair trial right - The Crown submitted that (i) Bruha had not been eligible for the pardon and (ii) in considering whether there had been a miscarriage of justice that warranted a new trial, the appeal court had to determine the pardon's validity - The Northwest Territories Court of Appeal rejected the Crown's argument, allowed the appeal and ordered a new trial - The Crown's argument was an impermissible collateral attack - The Parole Board was the appropriate forum to challenge a pardon's validity - The Federal Court had exclusive jurisdiction to determine an application for judicial review of a Parole Board decision to grant a pardon - To allow the Crown's argument in the present proceedings would have undermined the integrity of the parole system - See paragraphs 1 to 16.

Cases Noticed:

R. v. Consolidated Maybrun Mines Ltd. et al., [1998] 1 S.C.R. 706; 225 N.R. 41; 108 O.A.C. 161, refd to. [para. 13].

R. v. Klippert (Al) Ltd., [1998] 1 S.C.R. 737; 225 N.R. 107; 216 A.R. 1; 175 W.A.C. 1, refd to. [para. 13].

Tanner v. Canada (Attorney General) (2003), 230 F.T.R. 292 (T.D.), refd to. [para. 15].

Conille v. Canada (Procureur général) (2003), 234 F.T.R. 93 (T.D.), refd to. [para. 15].

R. v. Paterson (D.R.) (1998), 102 B.C.A.C. 200; 166 W.A.C. 200; 122 C.C.C.(3d) 254 (C.A.), refd to. [para. 19].

Québec (Ministre de la Justice) v. Therrien, J., [2001] 2 S.C.R. 3; 270 N.R. 1, refd to. [para. 19].

Counsel:

H. R. Latimer, for the appellant;

L. Charbonneau, for the respondent.

This appeal was heard on October 18, 2005, and January 17, 2006, by Fraser, C.J.N.W.T., Richard and O'Brien, JJ.A., of the Northwest Territories Court of Appeal. Fraser, C.J.N.W.T., delivered the following memorandum of judgment orally for the court and filed it on February 27, 2006.

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2 practice notes
  • R v DEA,
    • Canada
    • Court of Appeal (Alberta)
    • September 26, 2022
    ...jury is discharged, a mistrial order by the trial judge is not appropriate due to functus officio: R v Bruha, 2006 NWTCA 1 at paras 12-13, 384 AR 125; R v Henderson, (2004) 189 CCC (3d) 447, [2004] OJ No 4157 (QL); compare NH v DPP, [2016] HCA 33 (Aust.). Similarly, once sentence is passed ......
  • R. v. H.B., 2010 NBQB 214
    • Canada
    • New Brunswick Court of Queen's Bench of New Brunswick (Canada)
    • May 25, 2010
    ...[2001] 2 S.C.R. 3; 270 N.R. 1, refd to. [para. 35]. R. v. Kirst, [2007] O.J. No. 706 (C.J.), refd to. [para. 36]. R. v. Bruha (P.P.) (2006), 384 A.R. 125; 367 W.A.C. 125; 2006 NWTCA 1, refd to. [para. R. v. Ward (M.S.) - see R. v. Lambert (T.D.) et al. R. v. Lambert (T.D.) et al. (2010), 35......
2 cases
  • R v DEA,
    • Canada
    • Court of Appeal (Alberta)
    • September 26, 2022
    ...jury is discharged, a mistrial order by the trial judge is not appropriate due to functus officio: R v Bruha, 2006 NWTCA 1 at paras 12-13, 384 AR 125; R v Henderson, (2004) 189 CCC (3d) 447, [2004] OJ No 4157 (QL); compare NH v DPP, [2016] HCA 33 (Aust.). Similarly, once sentence is passed ......
  • R. v. H.B., (2010) 365 N.B.R.(2d) 58 (TD)
    • Canada
    • New Brunswick Court of Queen's Bench of New Brunswick (Canada)
    • May 25, 2010
    ...[2001] 2 S.C.R. 3; 270 N.R. 1, refd to. [para. 35]. R. v. Kirst, [2007] O.J. No. 706 (C.J.), refd to. [para. 36]. R. v. Bruha (P.P.) (2006), 384 A.R. 125; 367 W.A.C. 125; 2006 NWTCA 1, refd to. [para. R. v. Ward (M.S.) - see R. v. Lambert (T.D.) et al. R. v. Lambert (T.D.) et al. (2010), 35......

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