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

The Trial Judge's Four Discretions 177
In Buhay, 160 a case in which a Charter breach was found and hence a
subsection 24(2) analysis undertaken, the Supreme Court recognized these
two overlapping discretions in its obiter comments – though curiously it
does not expressly recognize the “constitutional stature” of the
exclusionary discretion laid down in Harrer. 161
In Riley, 162 the Court appeared to contemplate an overlap between the
Harrer and Seaboyer exclusionary discretions (exercisable against Crown
evidence), stating that “the framework” laid down in these two cases for
the exclusion of evidence is the one to be employed to exclude hearsay
evidence where its prejudicial effect exceeds its probative value. But it
makes no express comment about these discretions’ abilities (or lack of
abilities) to exclude improperly obtained evidence.
In Hawkins, 163 the Supreme Court says the discretion at common law
exercisable against Crown evidence has simply been “constitutionalized”
by its decision in Harrer. In other words there is only a single discretion
generally employable against Crown evidence. Thus, according to the
Supreme Court in this decision, there is complete overlap. If this
interpretation is accepted to be the current state of the law, then the
Harrer decision is best viewed as simply having further broadened the
scope of the common law exclusionary discretion in Seaboyer – by expressly
recognizing that, unlike the Wray discretion, it is readily employable
against improperly obtained evidence – and elevated its legal stature by
“constitutionalizing” it.
In Harrer, 164 La Forest J, writing for the majority of the Supreme
Court, characterized the discretion as free-standing and necessary to
ensure that a trial is fair from the outset. To ensure a fair trial, resort to
sections 24(1) or 24(2) of the Charter 165 was not always appropriate, nor
160
Supra note 14 at para 40.
161
Supra note 13.
162
Supra note 18 at paras 22-24 & 32-33.
163
Supra note 18 at para 85.
164
Supra note 13.
165
Charter, supra note 4, ss 24(1) and 24(2). Section 24(1) provides for the exclusion of
evidence, which while not obtained in breach of the Charter would if admitted
undermine the right to a fair trial as defined by section 11(d). In its own words, it
provides for “such remedy as the court considers appropriate and just in the
circumstances.” As can be seen, this section applies to prospective breaches of section
11(d). Section 24(2), on the other hand, provides for the exclusion of evidence