R. v. Harrer (H.M.) (1995), 64 B.C.A.C. 161 (SCC);
105 W.A.C. 161
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Heidi M. Harrer (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Canada and Robert Scott Terry (intervenors)
(24141)
Indexed As: R. v. Harrer (H.M.)
Supreme Court of Canada
Lamer, C.J.C., La Forest, L’Heureux- Dubé, Sopinka,
Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
October 19, 1995.
Summary:
The accused was acquitted on a charge of assisting another person to escape from lawful custody contrary to s. 147(a) of the Criminal Code. The trial judge excluded statements made to American law enforcement officials by the accused, on the ground that the accused’s Charter rights were denied and the evidence should be excluded under s. 24(2) of the Charter. The Crown appealed.
The British Columbia Court of Appeal, in a judgment reported 42 B.C.A.C. 218; 67 W.A.C. 218, allowed the appeal and ordered a new trial. The Charter did not apply extra-territorially. The accused appealed.
The Supreme Court of Canada dismissed the appeal.
Civil Rights – Topic 3157
Trials – Due process, fundamental justice and fair hearings – Criminal and quasi-criminal proceedings – Right to fair trial – The Supreme Court of Canada addressed the circumstances where evidence obtained in a foreign jurisdiction would deny an accused a fair trial in Canada, but the Charter did not apply and the evidence could accordingly not be excluded under s. 24(1) or 24(2) – The court stated that “I would reject the evidence on the basis of the trial judge’s duty, now constitutionalized by the enshrinement of a fair trial in the Charter, to exercise properly his or her judicial discretion to exclude evidence that would result in an unfair trial.” – There was no need to resort to s. 24(1) or 24(2) – The evidence is excluded to conform to the constitutional mandate guaranteeing a fair trial, i.e., to prevent a trial from being unfair at the outset – See paragraphs 21 to 24.
Civil Rights – Topic 3157
Trials – Due process, fundamental justice and fair hearings – Criminal and quasi-criminal proceedings – Right to fair trial – [See second
Civil Rights – Topic 8306
].
Civil Rights – Topic 3165.1
Trials – Due process, fundamental justice and fair hearings – Criminal and quasi-criminal proceedings – Evidence – [See first
Civil Rights – Topic 3157
].
Civil Rights – Topic 8304
Canadian Charter of Rights and Freedoms – Application of – [See second
Civil Rights – Topic 8306
].
Civil Rights – Topic 8306
Canadian Charter of Rights and Freedoms – Application of – Territorial limits – The British Columbia Court of Appeal stated that a trial judge could not exclude statements made by an accused to American law enforcement officials under s. 24(2) of the Charter, even if the trial judge deemed the statements to be taken in violation of the accused’s Charter rights, because the Charter had no extra-territorial application – The Supreme Court of Canada stated that the Charter was not automatically limited to Canadian territory – It was impermissible to apply the Charter to foreign law or to the activities of agents of a foreign state in performing their functions in their own countries – However, the court stated, without deciding, that it might not be an impermissible extra-territorial application of the Charter if (1) the interrogation about a Canadian offence was done by Canadian peace officers in the United States or (2) if the United States authorities were acting as agents of Canadian authorities in furthering a criminal prosecution in Canada – See paragraphs 10 to 11.
Civil Rights – Topic 8306
Canadian Charter of Rights and Freedoms – Application of – Territorial limits – The accused was charged with assisting another person to escape lawful custody – The accused was lawfully detained in the United States on an immigration matter and questioned – She was read her Miranda rights and American officers complied to the letter with the practices, procedures and substantive law of their jurisdiction – The trial judge excluded several statements under s. 24(2) of the Charter, on the ground that the accused’s right to counsel was denied where the Miranda warning was not repeated between questioning sessions, as required by s. 10(b) of the Charter if the interrogation were in Canada – The British Columbia Court of Appeal set aside the accused’s subsequent acquittal and ordered a new trial, because the Charter did not apply extra-territorially – The Supreme Court of Canada affirmed the decision, but held that the territoriality limits of the Charter was not in issue – The Charter did not apply, because U.S. authorities were not acting as agents for Canadian authorities, and there was accordingly no involvement of “government” as required by s. 32(1) of the Charter – It was open to an accused to argue that admission of the evidence would violate s. 7 (liberty) or s. 11(d)(fair trial) of the Charter – However, there was no unfairness in this case, so the evidence was admissible – See paragraphs 10 to 13.
Civil Rights – Topic 8368
Canadian Charter of Rights and Freedoms – Denial of rights – Exclusion of evidence – [See second
Civil Rights – Topic 8306
and first
Civil Rights – Topic 3157
].
Civil Rights – Topic 8546
Canadian Charter of Rights and Freedoms – Interpretation – Life, liberty and security of the person – [See second
Civil Rights – Topic 8306
].
Criminal Law – Topic 5201
Evidence – Witnesses – Admissibility – General – [See second
Civil Rights – Topic 8306
].
Cases Noticed:
Miranda v. Arizona (1966), 384 U.S. 436, refd to. [para. 4].
R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35; 50 C.C.C.(3d) 1; 70 C.R.(3d) 97; 47 C.R.R. 171, refd to. [para. 7].
R. v. Evans, [1991] 1 S.C.R. 869; 124 N.R. 278; 63 C.C.C.(3d) 289; 4 C.R.(4th) 144; 3 C.R.R.(2d) 315, refd to. [para. 7].
R. v. Spencer, [1985] 2 S.C.R. 278; 62 N.R. 81; 11 O.A.C. 207; 21 C.C.C.(3d) 385, refd to. [para. 10].
Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161; 58 C.R.(3d) 1; 28 C.R.R. 280; 39 D.L.R.(4th) 18; 33 C.C.C.(3d) 193, refd to. [para. 10].
Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 10].
Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83; 33 D.L.R.(4th) 174; 38 C.C.L.T. 184; 25 C.R.R. 321; [1987] 1 W.W.R. 577; 87 C.L.L.C. 14,002, refd to. [para. 12].
R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 13].
R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161; 36 C.R.(4th) 1, refd to. [para. 13].
Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161; 54 C.C.C.(3d) 417; 76 C.R.(3d) 129; 67 D.L.R.(4th) 161; 29 C.P.R.(3d) 97; 47 C.R.R. 1, refd to. [para. 14].
United States v. Toscamino (1974), 559 F.2d 267 (2nd Cir.), refd to. [para. 18].
United States of America v. Hensel (1981), 509 F.Supp. 1364, refd to. [para. 18].
R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 64 C.R.(3d) 1; 41 C.C.C.(3d) 385; 28 B.C.L.R.(2d) 145, refd to. [para. 23].
R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258; 47 C.C.C.(3d) 289, refd to. [para. 23].
R. v. Shafie (1989), 31 O.A.C. 362; 47 C.C.C.(3d) 27 (C.A.), refd to. [para. 36].
R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; 77 C.R.(3d) 145; 57 C.C.C.(3d) 1; [1990] 5 W.W.R. 1; 47 B.C.L.R.(2d) 1, refd to. [para. 38].
R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 7 C.R.(4th) 117; 66 C.C.C.(3d) 321, refd to. [para. 40].
Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; 48 C.R.(3d) 289; 23 C.C.C.(3d) 289; [1986] 1 W.W.R. 481, refd to. [para. 40].
Kuruma, Son of Kaniu v. R., [1955] A.C. 197 (P.C.), refd to. [para. 41].
R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 45 C.R.(3d) 97; 18 C.C.C.(3d) 481, refd to. [para. 42].
Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 18 D.L.R.(4th) 481; 13 C.R.R. 287; 12 Admin. L.R. 16, refd to. [para. 42].
R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 44].
Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241; [1995] 1 W.W.R. 609, refd to. [para. 50].
Argentina (Republic) v. Mellino, [1987] 1 S.C.R. 536; 76 N.R. 51; 80 A.R. 1; 52 Alta. L.R.(2d) 1; 28 C.R.R. 262; 33 C.C.C.(3d) 334; 40 D.L.R.(4th) 74, refd to. [para. 55].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(d), sect. 24(1), sect. 24(2) [para. 1]; sect. 32(1) [para. 35].
Authors and Works Noticed:
Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), p. 401 [para. 23].
Counsel:
William B. Smart and Rod Flannigan, for the appellant;
William F. Ehrcke, for the respondent;
S. David Frankel, Q.C., and Kimberly Prost, for the intervenor, Attorney General of Canada;
Charles I.M. Lugosi, for the intervenor, Robert Terry Scott.
Solicitors of Record:
Smart & Williams, Vancouver, British Columbia, for the appellant;
Ministry of the Attorney General, Vancouver, British Columbia, for the respondent;
John C. Tait, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the intervenor, Attorney General of Canada;
Charles Lugosi, Prince George, British Columbia, for the intervenor, Robert Scott Terry.
This appeal was heard on March 3, 1995, before Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.
On October 19, 1995, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:
La Forest, J. (Lamer, C.J.C., L’Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci, JJ., concurring) – see paragraphs 1 to 25;
McLachlin, J. (Major, J., concurring) – see paragraphs 26 to 56.
