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

178 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
sufficient in all circumstances of a case. 166 As a result, La Forest argued
that the former common law duty placed on the trial judge to ensure that
an accused receives a fair trial, when understood in light of section 11(d)
(which houses the fair trial guarantee) gave rise to a new form of judicial
discretion to exclude: “a constitutionalized common law discretion” which
could be used to exclude improperly obtained evidence, even in the
absence of a Charter breach. This included exclusion before a trial even
started, if necessary. This not only expands the former common law duty
placed on a judge to ensure a fair trial, but also elevates it to constitutional
stature independent of the Charter’s exclusionary provisions. 167
The new exclusionary discretion was recognized in Harrer for a
multitude of reasons. First, the discretion recognized in Seaboyer could not
ensure a fair trial in all circumstances, because evidence which was illegally
or improperly obtained might still possess enough probative value to
outweigh any possible prejudice arising from its admission. Thus, it was
still possible that some improperly obtained evidence whose receipt would
render a trial unfair could be received into evidence. 168
Second, improperly obtained evidence might not always be cognizable
by the Charter for the purpose of exclusion for any number of reasons.
First, the evidence may not have been obtained in breach of the Charter.
Second, the evidence may have been obtained in breach of the Charter, but
would not, if admitted, breach the fair trial protection housed in section
11(d), making the exclusionary provision based on trial fairness contained
in section 24(2) inapplicable. 169 Third, in a situation like Harrer, where the
obtained in breach of the Charter.
166
Resort to these sections was not possible in Harrer because of an absence of Canadian
state action. The impugned conduct involved American police officers: Harrer, supra
note 13 at paras 1-8.
167
Harrer, supra note 13 at paras 21-24.
168
Based on what is said by the Supreme Court in Potvin (supra note 24) the same cannot
be said about the statutory exclusionary discretion incorporated into section 715 of
the Criminal Code. According to the majority of the Court in that case, the statutory
discretion contained therein is exercisable against improperly obtained evidence that
has met the requirements for admissibility contained within the section: see Section II
discussion above.
169
Though such evidence may still be excludable under section 24(2) where the Charter
breach is particularly serious and where admission of the evidence would bring the
administration of justice into disrepute: See, for example, R v Stillman, [1997] 1 SCR
607, 144 DLR (4th) 193.