Until relatively recently, courts disclaimed the authority to exclude evidence because it was obtained illegally or unfairly where the Charter had not been violated.204It is now settled that courts can, in fact,
exclude evidence because of how it was obtained, even in the absence of a Charter breach. The power to do so had been recognized in passages in a number of cases205but remained controversial until the Supreme Court of Canada decision in R. v. Harrer,206where the authority to exclude unfairly obtained evidence received a clear endorsement. For the sake of clarity, this discretion will be referred to as "non-24(2) unfair trial exclusion" in the following discussion.
Harrer involved an application by the accused to exclude statements made to American authorities while she was being detained in the US. Although the American authorities complied with the requirements of the law in the US, had a Canadian peace officer conducted an interview in the same fashion, the accused’s right to counsel would have been violated. It was nonetheless impossible for Harrer to rely on the Charter’s exclusionary remedy in subsection 24(2) because there had been no misconduct by Canadian state agents and therefore no Charter breach. The Court noted, however, that had the actions of the American authorities been such as to render the admission of the evidence unfair, the evidence should nonetheless be excluded. In the circumstances of Harrer, the evidence was ultimately received, but the discretion to exclude was given unambiguous endorsement. Justice McLachlin, in her concurring opinion, grounded the discretion in the common law,207al-though Justice La Forest, writing for the majority, went further. In his view, the discretion to exclude evidence to preserve the fairness of a trial in a criminal case is actually a matter of obligation. Where, in all of the circumstances, admission of the evidence would render a trial unfair, subsection 11(d) of the Charter imposes a duty on the trial judge to exclude it to preserve the integrity of the trial. Members of the Court have since held that section 7 produces much the same effect; it would violate principles of fundamental justice for a court to admit evidence where that admission would render the trial unfair.208The Supreme Court of Canada recognized that this "non-24(2) unfair trial exclusion" could be used where the person who acts illegally
or unfairly is a private actor, like a security guard.209It would be available as well, where the accused does not have standing to rely on subsection 24(2) because it is the rights of another that have been violated. Courts have, however, taken a stringent view of when...