MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

176 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
V. THE GENERAL DISCRETION TO EXCLUDE CROWN
EVIDENCE TO ENSURE A FAIR TRIAL ARISING OUT OF THE
CHARTER AND R V HARRER
The final type of discretion owes its existence to section 11(d) of the
Charter and to the Supreme Court’s decision in R v Harrer, 155 though it is
traceable to the dissenting opinions of some Supreme Court Justices in
cases such as Wray. 156 It has aptly been characterized as a
“constitutionalized common law discretion”. 157 It permits a trial judge to
exclude improperly obtained evidence, even in the absence of a Charter
breach, in order to ensure a fair trial. 158 This discretion seems to fill a void
left by that in Wray, which (to repeat) left little, if any, room for
improperly obtained evidence – or any other evidence for the matter – to
be excluded, because of the high standard that had to be met, and because
of the refusal to consider pre-trial procedures as a factor bearing on the
fairness of the trial process itself. It is also fair to say that because this form
of discretion specifically contemplates the exclusion of improperly
obtained evidence in order to ensure a fair trial for the accused, the wider
Seaboyer formulation employable against Crown evidence may not always
be exercisable against this kind of evidence. 159 When, for example, the
evidence’s probative value clearly outweighs its prejudicial effect.
155
Supra note 13. Interestingly, Paciocco & Stuesser, supra note 1 attribute the source of
this discretion to the Charter and to Buhay (supra note 14). Buhay does identify the
discretion at para 40, but is simply affirming the earlier case of Harrer in this regard.
156
See generally McWilliams et al, supra note 11 at 5-15.
157
Ibid at 5-19; Sopinka et al, supra note 5 at 31. See Harrer, supra note 13 at paras 21-24,
per La Forest J.
158
Harrer, supra note 13 at paras 21-23, per La Forest J; Sopinka et al, supra note 5 at 31.
The concept of a fair trial recognized in Harrer extends beyond simply that which is
guaranteed under section 11(d): see Harrer, supra note 13 at paras 21-24. In this way,
the decision in Harrer is traceable to Corbett and the reasons of Dickson CJC and
Lamer J that speak to the need for a statutized exclusionary discretion to ensure a “fair
trial” beyond that contemplated by the fair trial protection housed in section 11(d) of
the Charter.
159
Even if I am wrong and there is in fact complete overlap between these two forms of
discretion, translating into the reality that either can operate to exclude improperly
obtained Crown evidence in order to ensure a fair trial, a trial judge would be wise to
opt for the Harrer discretion as it specifically anticipates exclusion of this kind of
evidence.