R. v. Brown (C.R.),

JurisdictionBritish Columbia
JudgeRyan, Newbury and Braidwood, JJ.A.
Neutral Citation2001 BCCA 13
CourtCourt of Appeal (British Columbia)
Subject MatterCRIMINAL LAW,CIVIL RIGHTS
Citation2001 BCCA 13,(2001), 148 B.C.A.C. 165 (CA)
Date13 September 2000

R. v. Pawliuk (R.S.) (2001), 148 B.C.A.C. 165 (CA);

    243 W.A.C. 165

MLB headnote and full text

Temp. Cite: [2001] B.C.A.C. TBEd. MR.020

Regina (respondent) v. Robert Stephen Pawliuk (appellant)

(V03272)

Regina (respondent) v. Colin Roderick Brown (appellant)

(CA024639; 2001 BCCA 13)

Indexed As: R. v. Pawliuk (R.S.); R. v. Brown (C.R.)

British Columbia Court of Appeal

Ryan, Newbury and Braidwood, JJ.A.

January 12, 2001.

Summary:

The two accused were charged with second degree murder. A jury convicted both accused as charged. Both accused appealed from conviction.

The British Columbia Court of Appeal dismissed both appeals.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - Pawliuk and Brown were charged with second de­gree murder - During trial, Crown counsel offered to accept a guilty plea to the lesser included offence of manslaugh­ter, but only if both accused accepted - Pawliuk agreed; Brown refused - The Crown withdrew the of­fer - The British Columbia Court of Ap­peal ruled that no valid plea agreement existed between Pawliuk and the Crown - There was no misconduct by the Crown, whose conduct did not impair Pawliuk's right to make full answer and defence - The condition pre­cedent did not offend so­ciety's sense of fair play or constitute an abuse of process - Pawliuk suffered no ac­tual or potential prejudice - See paragraphs 48 to 61, 63.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 1285

Offences against person and reputation - Murder - Provocation - Jury charge - Pawliuk and Brown were charged with second degree murder in a shooting death -The main defences were self-defence and accident - Provocation was not pressed at trial and no evidence was lead that would properly found this defence - Pawliuk armed himself with a gun because he knew that the deceased was armed - He deliber­ately confronted the deceased, knowing full well that the deceased was armed and what might unfold - The Brit­ish Col­umbia Court of Appeal held that the de­ceased's be­haviour did not have to be specifically referred to in the jury charge as "provoca­tive" for the jury to assess its effect on Pawliuk's intent at the time he fired the fatal shot - See para­graphs 25 to 33, 63.

Criminal Law - Topic 1293

Offences against person and reputation - Murder - Defences - Self-defence - Jury charge - Pawliuk (the alleged shooter) and Brown (an alleged party) pleaded self-defence to second degree murder - The trial judge told the jury that the Criminal Code, s. 34(2), applied whether or not Pawliuk intended to kill or cause the deceased bodily harm - The British Col­umbia Court of Appeal found the jury charge adequate; it was unnecessary to leave s. 34(1) with the jury - It would have unnecessarily confused the jury to leave them with both ss. 34(1) and (2) - The accused's defence fell within s. 34(2), i.e., his belief that the deceased was going to kill or seriously injure him - An accused may resort to s. 34(2) whether or not he intended to cause death or grievous bodily harm - See paragraphs 19 to 24, 63 to 87.

Criminal Law - Topic 1299

Offences against person and reputation - Murder - Defences - Jury charge (incl. intent and drunkenness) - The two accused were charged with second degree murder in a shooting death - At issue was whether the trial judge adequately placed the defence of accident before the jury - The British Columbia Court of Appeal held that not only did the judge carefully direct the jury on the issue of intent gen­erally, he also related the issue of intent to the issue of accident - There would be no confusion on the jury's part that, if the gun went off accidentally, there was no intent as required by s. 229 of the Criminal Code - See paragraphs 16 to 18, 63.

Criminal Law - Topic 1300

Offences against person and reputation - Murder - Defences - Accident - Jury charge - [See Criminal Law - Topic 1299 ].

Criminal Law - Topic 4231

Procedure - Pleas - Plea bargaining - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 4351

Procedure - Jury charge - Direction re­garding burden of proof and reasonable doubt - Two accused were charged with second degree murder in a shooting death - The British Columbia Court of Appeal held that the jury charge on reasonable doubt was adequate and quite satisfactory - See paragraphs 36 to 45, 63.

Criminal Law - Topic 4356

Procedure - Jury charge - Directions re­garding intent or mens rea - [See Crim­inal Law - Topic 1299 ].

Criminal Law - Topic 4356

Procedure - Jury charge - Directions re­garding intent and mens rea - Pawliuk and Brown were charged with second degree murder in a shooting death - The accused objected to a portion of the jury charge which said that evidence of Pawliuk and the eyewitnesses regarding lack of intent "should not be looked at in isola­tion" - The British Columbia Court of Appeal held that the jury would have understood the impugned passage as a proper reminder to consider the case in its entirety - See para­graphs 34 to 35, 63.

Criminal Law - Topic 4370

Procedure - Jury charge - Directions re­garding self-defence - [See Criminal Law - Topic 1293 ].

Cases Noticed:

Mancini v. Director of Public Prosecutions (1941), 28 Cr. App. Rep. 65 (H.L.), refd to. [para. 15].

R. v. Faid, [1983] 1 S.C.R. 265; 46 N.R. 461; 42 A.R. 308; 2 C.C.C.(3d) 513; 145 D.L.R.(3d) 67, refd to. [para. 15].

R. v. Fisher (W.) et Beaudoin (F.) (1992), 52 Q.A.C. 118; 78 C.C.C.(3d) 458 (C.A.), refd to. [para. 15].

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104; [1980] 4 W.W.R. 387; 14 C.R.(3d) 243; 111 D.L.R.(3d) 1; 52 C.C.C.(2d) 481, refd to. [para. 15].

R. v. Sutherland (D.L.) (1993), 113 Sask.R. 193; 52 W.A.C. 193; 84 C.C.C.(3d) 484 (C.A.), refd to. [para. 16].

R. v. Kindt (S.C.) (1998), 106 B.C.A.C. 15; 172 W.A.C. 15; 124 C.C.C.(3d) 20 (C.A.), refd to. [paras. 22, 82].

R. v. Bukmeier (T.A.) (1998), 103 B.C.A.C. 303; 169 W.A.C. 303 (C.A.), dist. [paras. 22, 81].

R. v. Laverty (S.T.), [1996] 3 S.C.R. 412; 203 N.R. 5; 81 B.C.A.C. 241; 132 W.A.C. 241, refd to. [para. 22].

R. v. Pintar (J.) (1996), 93 O.A.C. 172; 110 C.C.C.(3d) 402; 30 O.R.(3d) 483 (C.A.), refd to. [paras. 23, 70].

R. v. Olbey, [1980] 1 S.C.R. 1008; 30 N.R. 152; 50 C.C.C.(2d) 257, refd to. [para. 25].

R. v. Campbell (1977), 17 O.R.(2d) 673 (C.A.), refd to. [para. 31].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161; 113 C.C.C.(3d) 1, refd to. [para. 32].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397; 3 C.R.(4th) 302, refd to. [para. 36].

R. v. K.K. (2000), 134 B.C.A.C. 115; 219 W.A.C. 115 (C.A.), refd to. [para. 43].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 118 C.C.C.(3d) 1, refd to. [para. 44].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122; [1988] 4 W.W.R. 97; 32 C.R.R. 269; 40 C.C.C.(3d) 481; 62 C.R.(3d) 349, refd to. [para. 53].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269; 89 C.C.C.(3d) 1, refd to. [para. 53].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; [1996] 2 W.W.R. 153; 130 D.L.R.(4th) 235; 103 C.C.C.(3d) 1; 44 C.R.(4th) 1, refd to. [para. 54].

R. v. Elijah (1989), 53 C.C.C.(3d) 36 (Ont. Dist. Ct.), consd. [para. 56].

R. v. E.D. (1990), 39 O.A.C. 13; 57 C.C.C.(3d) 151 (C.A.), consd. [para. 57].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165; 49 C.C.C.(3d) 289; 70 C.R.(3d) 209, consd. [para. 59].

R. v. Baxter (1975), 27 C.C.C.(2d) 96 (Ont. C.A.), consd. [para. 70].

R. v. Brisson, [1982] 2 S.C.R. 227; 44 N.R. 1; 69 C.C.C.(2d) 97, refd to. [para. 72].

R. v. Reilly, [1984] 2 S.C.R. 396; 55 N.R. 274; 6 O.A.C. 88, refd to. [para. 76].

R. v. Laverty (S.T.) (1995), 60 B.C.A.C. 280; 99 W.A.C. 280 (C.A.), refd to. [para. 79].

R. v. Eggleston (S.L.) (1997), 94 B.C.A.C. 341; 152 W.A.C. 341; 117 C.C.C.(3d) 566 (C.A.), refd to. [para. 80].

R. v. Trombley (E.), [1999] 1 S.C.R. 757; 238 N.R. 95; 120 O.A.C. 302; 134 C.C.C.(3d) 576, affd. (1998), 110 O.A.C. 329; 40 O.R.(3d) 382; 126 C.C.C.(3d) 495 (C.A.), refd to. [para. 84].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 34(1), sect. 34(2) [para. 67]; sect. 232 [para. 28].

Counsel:

L. Dale Marshall, for the appellant, Robert Stephen Pawliuk;

Matthew A. Nathanson, for the appellant, Colin Roderick Brown;

Robert Mulligan, for the respondent.

These appeals were heard at Victoria, British Columbia, on September 13, 2000, with written submissions on October 11, 13 and 17, 2000, before Ryan, Newbury and Braidwood, JJ.A., of the British Columbia Court of Appeal. The judgment was delivered at Vancouver, British Columbia, on January 12, 2001, when the following opin­ions were filed:

Braidwood, J.A. (Newbury, J.A., concur­ring) - see paragraphs 1 to 62;

Ryan, J.A. (Newbury, J.A., concurring) - see paragraphs 63 to 88.

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2 practice notes
  • Table of cases
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...205 CCC (3d) 171, [2006] OJ No 361 (CA) ................................................................................ 645 R v Pawliuk, 2001 BCCA 13 ............................................................................... 656 R v Pawlyk (1991), 72 Man R (2d) 1, 65 CCC (3d) 63, [199......
  • The Prosecutor
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...that honouring resolution agreements is an ethical imperative for Crown counsel and is necessary if the crim-426 See R v Pawliuk , 2001 BCCA 13 at paras 53–56; United States of America v Prudenza (2006), 213 CCC (3d) 312 at para 29 (Ont CA), leave to appeal to SCC refused, [2006] SCCA No 41......
2 books & journal articles
  • The Prosecutor
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...that honouring resolution agreements is an ethical imperative for Crown counsel and is necessary if the crim-426 See R v Pawliuk , 2001 BCCA 13 at paras 53–56; United States of America v Prudenza (2006), 213 CCC (3d) 312 at para 29 (Ont CA), leave to appeal to SCC refused, [2006] SCCA No 41......
  • Table of cases
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...205 CCC (3d) 171, [2006] OJ No 361 (CA) ................................................................................ 645 R v Pawliuk, 2001 BCCA 13 ............................................................................... 656 R v Pawlyk (1991), 72 Man R (2d) 1, 65 CCC (3d) 63, [199......

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