R. v. Harrer,  3 S.C.R. 562
Heidi M. Harrer Appellant
Her Majesty The Queen Respondent
The Attorney General of Canada
and Robert Scott Terry Interveners
Indexed as: R. v. Harrer
File No.: 24141.
1995: March 3; 1995: October 19.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Applicability of Charter outside Canada's boundaries ‑‑ Trial fairness ‑‑ Exclusion of evidence ‑‑ Evidence obtained abroad according to foreign local law ‑‑ Foreign law requiring less exacting procedural standard than Charter ‑‑ Whether failure of foreign police to comply with Canadian law rendering evidence so obtained inadmissible ‑‑ Whether principles of fundamental justice and the right to a fair trial permit exclusion of evidence obtained outside Canada ‑‑ Canadian Charter of Rights and Freedoms, ss. 7, 10(b), 11(d), 24(1), (2), 32.
The appellant was tried in Canada on the basis of statements she made to police in the United States. The statements were made in the course of an investigation to determine if the appellant was lawfully within the United States and to ascertain the circumstance of an alleged offence in the United States by the appellant's boyfriend. During the course of the interrogation of the appellant, she was also questioned about her possible criminal involvement in Canada relating to the escape of her boyfriend while he was being held for extradition to the United States. The trial judge excluded one of her statements on the ground that the police failed to give her a second right‑to‑counsel warning when their questioning changed focus from the immigration matter and the American offence to her possible involvement with the escape, which would have been required by the Canadian Charter if the interrogation had been conducted in Canada by Canadian police, but which was not required under U.S. law. The appellant was acquitted but the Court of Appeal found the exclusion of the statement to be an error and ordered a new trial. The appellant appealed. At issue was whether the failure of the United States police to comply with Canadian law makes the statement inadmissible in Canada. This issue raised two sub‑issues: whether the Charter applies outside Canada's boundaries and whether the principles of fundamental justice and the right to a fair trial permit exclusion of evidence obtained outside Canada.
Held: The appeal should be dismissed.
Per Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.: The Charter had no direct application to the interrogations in the U.S. because the U.S. authorities were not acting on behalf of any Canadian government. An entirely different issue would have arisen had the interrogation about a Canadian offence been made by Canadian peace officers in the United States, or by U.S. authorities acting as agents of the Canadian police, in circumstances that would constitute a violation of the Charter had the interrogation taken place in Canada. Here, however, the application of the Charter could only be triggered when Canadian police began proceedings on the appellant's return to Canada. Absent a complaint against the Canadian police, the only ground available to the appellant was that the admission of the evidence would violate the appellant's liberty interests in a manner that is contrary to the principles of fundamental justice (s. 7 of the Charter) or that its admission would violate the guarantee of a fair trial under s. 11(d).
The admission of the impugned evidence would not result in an unfair trial. Evidence cannot be assumed to be unfairly obtained or to be unfairly admitted because it was obtained in a manner that would violate a Charter guarantee in this country. Different balances may be struck in various countries between the interests of the state and of the individual, all of which may be fair. The accused is entitled to a fair hearing, not to the most favourable procedures imaginable.
The rule that the Canadian police give an accused a second warning when the interrogation changes focus is geared not only to the individual's rights in the specific case but also to ensuring the fairness of the system and general respect for its constitutional values in all cases. No such systemic concern existed with respect to police forces abroad. The only relevant concern was the fairness of the trial. This was to be determined on the specific circumstance in accordance with principles of Canadian law. The fact that the evidence was obtained lawfully in another country could be a factor in assessing fairness, but was by no means determinative. Here, the fact that no new warning was given when the interrogation moved to the more serious offence under Canadian law was not unfair in the circumstances of this case. The appellant knew and understood that she was in jeopardy in relation to the Canadian offence and there was no other evidence of unfairness.
Had the evidence been unfair, it could have been rejected without resort to s. 24 of the Charter on the basis of the trial judge's duty, constitutionalized by the s. 11(d) Charter right to a fair trial, to exercise his or her judicial discretion properly to exclude evidence that would result in an unfair trial. The same result could be reached under s. 7 because the admission of unfair evidence would violate the principles of fundamental justice.
Per McLachlin and Major JJ.: The s. 10(b) Charter right to counsel is given "on arrest or detention" and therefore pertains to the time of arrest or detention, and not to the time at which evidence is admitted at trial for evaluation of the events occurring abroad. To hold that the American officers breached the appellant's Charter rights on arrest would be to apply the Charter outside the scope of s. 32. Whether the American officers were agents of the Canadian officers, and hence bound by the Charter, was largely a question of fact and therefore not properly before this Court.
Admission of the statement made without benefit of a second right‑to‑counsel warning does not violate the appellant's right to silence or the right against self‑incrimination contrary to s. 7 of the Charter. The law accords suspects the right not to incriminate themselves if they so choose but does not require exclusion of voluntary self‑incriminatory statements.
The failure of the foreign police to comply with the procedures required under the Charter in Canada did not so taint the evidence that its admission would result in an unfair trial. No unfairness resulted from the fact that the statement, taken in the U.S. in conformity with U.S. law, was admissible and yet, had it been taken in Canada in the same circumstances, would have been inadmissible. Dissimilarity between foreign legal rules and Charter requirements does not establish that admitting the evidence would render the trial unfair. The impugned statement did not come into existence upon a denial of a constitutionally protected right because no equivalent right exists in the United States and, moreover, any deviation from Canadian procedures was not at the most serious end of the scale. No unfairness arose on account of the statement's being inadmissible, had it been taken in Canada: any unfairness arises in large part from the accused's expectation that the police in Canada will comply with Canadian law and not from the fact that the statement would have been inadmissible had it been taken in Canada in similar circumstances. When a suspect leaves Canada, that person does not take Canadian Charter rights with him or her. Having attorned to the law of the United States, the appellant cannot complain that failure to give the second warning required by the Charter was unfair.
By La Forest J.
Referred to: Miranda v. Arizona, 384 U.S. 436 (1966); R. v. Black,  2 S.C.R. 138; R. v. Evans,  1 S.C.R. 869; Spencer v. The Queen,  2 S.C.R. 278; Canada v. Schmidt,  1 S.C.R. 500; Kindler v. Canada (Minister of Justice),  2 S.C.R. 779; RWDSU v. Dolphin Delivery Ltd.,  2 S.C.R. 573; R. v. Lyons,  2 S.C.R. 309; R. v. S. (R.J.),  1 S.C.R. 451; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission),  1 S.C.R. 425; United States v. Toscanino, 500 F.2d 267 (1974); United States of America v. Hensel, 509 F.Supp. 1364 (1981); R. v. Corbett,  1 S.C.R. 670; R. v. Potvin,  1 S.C.R. 525.
By McLachlin J.
Referred to: R. v. Black,  2 S.C.R. 138; R. v. Evans,  1 S.C.R. 869; Kindler v. Canada (Minister of Justice),  2 S.C.R. 779; R. v. Shafie (1989), 47 C.C.C. 27; R. v. Hebert,  2 S.C.R. 151; R. v. Seaboyer,  2 S.C.R. 577; Re B.C. Motor Vehicle Act,  2 S.C.R. 486; Kuruma v. The Queen,  A.C. 197; R. v. Corbett,  1 S.C.R. 670; R. v. Potvin,  1 S.C.R. 525; R. v. Therens,  1 S.C.R. 613; Operation Dismantle Inc. v. The Queen,  1 S.C.R. 441; R. v. Collins,  1 S.C.R. 265; R. v. Lyons,  2 S.C.R. 309; Tolofson v. Jensen,  3 S.C.R. 1022; Argentina v. Mellino,  1 S.C.R. 536.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7, 10(b), 11(d), 24(1), (2), 32(1).
Criminal Code, R.S.C., 1985, c. C-46, s. 147(a).
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.
APPEAL from a judgment of the British Columbia Court of Appeal (1994), 89 C.C.C. (3d) 276, 42 B.C.A.C. 218, 67 W.A.C. 218, allowing an appeal from acquittal by Boyd J. Appeal dismissed.
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 intervener the Attorney General of Canada.
Charles I. M. Lugosi, for the intervener Robert Scott Terry.
The judgment of Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ. was delivered by
1 La Forest J. -- The general issue in this appeal is whether and to what extent evidence obtained by foreign peace officers in a manner that, if obtained by Canadian police in Canada, would be in contravention of the Canadian Charter of Rights and Freedoms is admissible at the trial of an accused in Canada for an offence committed here. Specifically, is an inculpatory statement, made without the benefit of counsel by a Canadian citizen to American peace officers, concerning her participation in a criminal offence in Canada, admissible in evidence by the Crown when the statement, though made in accordance with United States law, would if taken in Canada by Canadian police in similar circumstances violate the accused's right to counsel under s. 10(b) of the Charter? This involves a consideration of the application of ss. 7, 11(d), 24 and 32 of the Charter as well as s. 10(b).
2 The issue arises against the following background. The appellant's boyfriend, Stephen Hagerman, then in custody in Vancouver awaiting extradition to the United States in respect of serious drug charges in the United States, was taken from the custody of two armed sheriff's officers, who were escorting him to the emergency department of the Vancouver Hospital, by an unidentified armed man who then escaped with Hagerman by van.
3 Almost immediately after the escape, the United States Marshal service (the police) was in communication with the Vancouver police, offering assistance in posting a reward. The Marshal service also undertook its own investigation during which they learned that the appellant was Hagerman's girlfriend and on further investigation found that she might perhaps have been convicted of assault in Canada, and consequently be illegally in the United States. In accordance with general practice, the Marshal's office alerted the United States Immigration Office. The Marshals had learned that the appellant was staying at Hagerman's cottage with Hagerman's mother in Cleveland and, along with Immigration officers, they went there the following day.
4 The primary purpose of the trip was to investigate the appellant's immigration status but a secondary purpose was to allow the Marshal's office an opportunity to interview her. The Immigration authorities had power to arrest her if satisfied she was possibly an illegal alien, but the Marshals had no grounds to arrest her. On arrival at the cottage, the Immigration Officer identified himself, placed the appellant under arrest and recited the "Miranda warning" against self-incrimination required under the Fifth Amendment of the United States Constitution (see Miranda v. Arizona, 384 U.S. 436 (1966)). She stated she understood and denied any criminal record.
5 The appellant was then taken by the Immigration agents to a State police post in Gaylord, Michigan, the Marshals following in their own car. At the police post, an immigration agent advised her that he would make further telephone calls regarding the appellant's record, and then told her the Marshals wanted to question her.
6 At the outset, the Marshal conducting the interview reminded the appellant that the warning she had been given still applied. She was advised that they were conducting an investigation of Hagerman. Some time during the discussion, the appellant admitted she had moved a van on Hagerman's instruction, but denied any further knowledge of his escape. Following this, the Marshal left to call the Vancouver police who informed him that they suspected the appellant of greater involvement in the escape and, indeed, that they suspected she had passed Hagerman a vehicle key and some diamond wire while he was detained. The appellant was subsequently interrogated about this.
7 I underline here that in questioning the appellant the United States Immigration agents and the American Marshal were carrying out their respective duties under the immigration laws of their country and in relation to the offences of which Hagerman was charged in that country. However, at some point the focus of the Marshal's interview shifted to Harrer's alleged criminal participation in Hagerman's escape in Canada. Before entering upon an interrogation on this more serious Canadian charge, the Marshal did not give a second warning as would be required of Canadian police investigating a crime in Canada; see R. v. Black,  2 S.C.R. 138; R. v. Evans,  1 S.C.R. 869. He, not unnaturally, simply acted in accordance with American law where the Miranda rule does not require a second warning under these circumstances. I add, finally, that, while they were cooperating with one another, there is nothing to indicate that the American authorities were in any way acting for or on behalf of the Canadian police.
8 On her return to Canada, the Crown, at the appellant's trial for assisting Hagerman in escaping lawful custody contrary to s. 147(a) of the Criminal Code, R.S.C., 1985, c. C-46, adduced the appellant's statements to the United States Marshal. However, the trial judge, who took the view that the Charter applied outside Canada, held that the interrogation violated s. 10(b) of the Charter which guarantees the right to a person arrested or detained to retain and instruct counsel without delay. Exercising her discretion under s. 24(2), the judge rejected the evidence on the ground that it would bring the administration of justice into disrepute, and acquitted the appellant. I add, interstitially, that she also rejected some of the later portions of the appellant's statements on the ground that they were not voluntary. The latter ruling was not, however, contested on the appeals to the Court of Appeal or to this Court and need not, therefore, be considered further.
9 On appeal to the Court of Appeal, the appeal was allowed primarily on the ground that there was no Charter breach because the Charter had no application to interrogations conducted in the United States, but also on the ground that the Charter did not apply to the American authorities. Consequently, the evidence could not be excluded under s. 24(2). From this decision, the appellant appealed to this Court as of right.
10 Let me first say a word about the argument concerning the territorial limits of the Charter, which appears to have played a considerable role in the thinking of the Court of Appeal. That argument is not necessary to the disposition of the case, but I would not wish my remarks to be interpreted as giving credence to the view that the ambit of the Charter is automatically limited to Canadian territory. This is in no way inconsistent with the extradition cases decided in this Court or Spencer v. The Queen,  2 S.C.R. 278. All these cases were concerned either with the application of the Charter to foreign law, or to the activities of agents of a foreign state in performing their functions in their own countries. To apply our law in such situations would truly be giving the Charter impermissible extraterritorial application as I observed in Canada v. Schmidt,  1 S.C.R. 500. Nor, as I read it, is there anything in Kindler v. Canada (Minister of Justice),  2 S.C.R. 779, to the contrary. The appellant, it is true, relied on the statement in Justice McLachlin's reasons in the latter case (at p. 847) that "[t]his Court has in the past refused to apply Charter guarantees to defects in proceedings outside the country". But in my separate reasons (in which I expressed substantial agreement with my colleague), I was careful to observe (at p. 831) that the proceeding in question there was one initiated by the American authorities against an American citizen in respect of a crime under American law committed in that country. L'Heureux-Dubé and Gonthier JJ., the other members of the majority, concurred in both sets of reasons. We are dealing here with evidence to be used in a Canadian proceeding, though obtained outside Canada.
11 Subject to whatever argument may be made to the contrary, it strikes me that the automatic exclusion of Charter application outside Canada might unduly restrict the protection Canadians have a right to expect against the interference with their rights by our governments or their agents. Consequently, had the interrogation about a Canadian offence been made by Canadian peace officers in the United States in circumstances that would constitute a violation of the Charter had the interrogation taken place in Canada, an entirely different issue would arise. A different issue would also arise if the United States policemen and immigration authorities had been acting as agents of the Canadian police in furthering a criminal prosecution in Canada. These issues do not arise and I shall say no more about them.
12 What I think is determinative against the argument that the Charter applied to the interrogation in the present case is the simple fact that the United States immigration officials and the Marshals were not acting on behalf of any of the governments of Canada, the provinces or the territories, the state actors to which, by virtue of s. 32(1) the application of the Charter is confined; see RWDSU v. Dolphin Delivery Ltd.,  2 S.C.R. 573. It follows that the Charter simply has no direct application to the interrogations in the United States because the governments mentioned in s. 32(1) were not implicated in these activities. The United States authorities involved in the present case can in no way be considered as acting on behalf of those governments, and this was not really contested at the hearing. That being so, the rights flowing under s. 10(b) of the Charter to persons arrested or detained had no application. This, however, does not mean that the manner in which the evidence was obtained is entirely irrelevant in subsequent proceedings for a crime in Canada. I turn then to other possible Charter implications in Canada.
13 As I see it, the application of the Charter could only be triggered when the Canadian police began proceedings against the accused on her return to Canada, a situation closely analogous to that in Kindler. The appellant does not complain about any improper police action in Canada. Consequently, the only grounds that may be available to the appellant, as her counsel recognized during the oral hearing, is that the admission of the evidence would violate the appellant's liberty interests in a manner that is not in accordance with the principles of fundamental justice under s. 7 of the Charter, or would violate the guarantee of a fair trial under s. 11(d) of the Charter. I am not sure it much matters which of these Charter provisions one addresses in the present context; they appear to raise the same policy considerations; for analogous situations, see R. v. Lyons,  2 S.C.R. 309; R. v. S. (R.J.),  1 S.C.R. 451, per Iacobucci J., at pp. 561-62. If the admission of crucial evidence such as the out of court self-incriminatory statements in this case would be in violation of the principles of fundamental justice, I would think the trial would not be fair. On the other hand, if one found the evidence inadmissible because it would result in a trial that is not fair, then I have no doubt that its admission would violate the principles of fundamental justice. Generally, it is true, the Court has shown a preference for dealing with the specific guarantee when both s. 7 and a specific guarantee under the Charter are pleaded. I will by and large follow that approach here, though I will at times refer to s. 7 because, as I mentioned, in this context the same values are at play.
14 Would, then, the admission of the impugned evidence result in an unfair trial? In approaching this issue, I do not think one can automatically assume that the evidence was unfairly obtained or that its admission would be unfair (which may not be precisely the same question) simply because it was obtained in a manner that would in this country violate a Charter guarantee. As in other cases involving broad concepts like "fairness" and "principles of fundamental justice", one is not engaged in absolute or immutable requirements; these concepts vary with the context in which they are invoked; see Lyons, at p. 361. Specifically here, one is engaged in a delicate balancing to achieve a just accommodation between the interests of the individual and those of the state in providing a fair and workable system of justice; see my remarks in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission),  1 S.C.R. 425, at p. 539. On the same page in that case, it is recognized that different balances may be achieved in different countries, all of which are fair or, to put it in s. 7 terminology, "in accordance with the principles of fundamental justice". I add that this Court has also stated that "s. 7 of the Charter entitles the appellant to a fair hearing; it does not entitle him to the most favourable procedures that could possibly be imagined"; see Lyons, supra, at p. 362. It follows that, in the present context, evidence may be obtained in circumstances that would not meet the rigorous standards of the Charter and yet, if admitted in evidence, would not result in the trial being unfair.
15 Looking specifically at the present situation, it is obvious that Canada cannot impose its procedural requirements in proceedings undertaken by other states in their own territories. And I see no reason why evidence obtained in other countries in a manner that does not conform to our procedures should be rejected if, in the particular context, its admission would not make the trial unfair. For us to insist that foreign authorities have followed our internal procedures in obtaining evidence as a condition of its admission in evidence in Canada would frustrate the necessary cooperation between the police and prosecutorial authorities among the various states of the world. Moreover, we must be mindful that a constitutional rule may be adopted to ensure that our system of obtaining evidence is so devised as to ensure that a guaranteed right is respected as a matter of course. Thus there may well be cases where in an objective sense there may be no unfairness where a second warning is not given to a suspect when an investigation moves to a more serious offence, but by imposing the rule we encourage a type of police practice that ensures the individual's right to counsel is respected. The rule is not geared to the individual case alone, but to ensuring the fairness of the system and general respect for this country's constitutional values. We have no systemic concern of this kind in relation to the actions of foreign police abroad. We are concerned solely with whether the admission of evidence in the particular case will affect the fairness of the trial.
16 On the other hand, Canada is not bound by the law of other countries in conducting trials in this country. We must, in determining whether evidence should be admitted into evidence, be guided by our sense of fairness as informed by the underlying principles of our own legal system as it applies to the specific context of the case. The fact that the evidence was obtained in another country in accordance with the law of that country may be a factor in assessing fairness. Its legality at the place in question will necessarily affect all participants, including the police and the individual accused. More specifically, conformity with the law of a country with a legal system similar to our own has even more weight, for we know that a number of different balances between conflicting principles can be fair; see Thomson Newspapers, supra, at p. 539.
17 But the foreign law is not governing in trials in this country. For example, it may happen that the evidence was obtained in a manner that conformed with the law of the country where it was obtained, but which a court in this country would find in the circumstances of the case would result in unfairness if admitted at trial. On the other hand, the procedural requirements for obtaining evidence imposed in one country may be more onerous than ours. Or they may simply have rules that are different from ours but are not unfair. Or again we may not find in the particular circumstances that the manner in which the evidence was obtained was sufficiently objectionable as to require its rejection. In coming to a decision, the court is bound to consider the whole context.
18 At the end of the day, a court is left with a principled but fact-driven decision. Thus far, there have been few, if any other cases on the issue. As the number of cases increases, more precise legal principles or guidelines may, of course, develop. In the United States, for example, the law seems to be to admit evidence obtained in a foreign country unless the manner of its obtention shocks the conscience; see United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), at p. 276; United States of America v. Hensel, 509 F.Supp. 1364 (1981), at p. 1372. I agree that one should not be overly fastidious or adopt a chauvinistic attitude in assessing practices followed in other countries but, given the few cases on the matter, I am not at this stage prepared to accept that the unfairness must be such as to shock the conscience to warrant rejection. Simply, what we seek is a fair trial in the specific context, and I am by no means sure this requirement can be satisfied by the rejection of foreign evidence only in the most egregious circumstances. It is right to add, however, that this issue does not arise here because I am satisfied that there was no unfairness in the circumstances of this case.
19 While no new warning was given when the interrogation moved to the more serious offence under Canadian law, I do not think this was unfair in the circumstances of this case. In general terms, I have some hesitation in accepting in the abstract that an enquiry conducted in the United States in accordance with the Miranda case is automatically unfair in situations that would in this country require a second warning. Our law may be more protective, but it does not necessarily follow that the rule developed in that case is unfair. It would be surprising if it were. Miranda is, after all, a recent case that stands as a landmark decision for the protection of the rights of a person arrested or detained that this Court has emulated. While this Court has required the further warning described in fleshing out the protection accorded by s. 10(b), it by no means follows that the admission of evidence obtained under a lesser standard in another country would make a trial automatically unfair. Our more stringent rule, as I indicated before, exists for systemic reasons and is not addressed to determining the fairness of a single situation taking place in another country. I would be inclined to think that evidence obtained following a Miranda warning should ordinarily be admitted in evidence at a trial unless in the light of other circumstances the court has reason to think the admission of the evidence would make the trial unfair.
20 There were no such circumstances here ‑‑ quite the opposite. As I mentioned, not only was the Miranda warning given at the outset of the questioning by the Immigration agents; it was also later recalled to the appellant when the police began their questioning. As well, before the relevant statements were made, the interrogating Marshal impressed upon the appellant the seriousness of her situation and his knowledge that she was involved in the escape. On a reading of the judge's findings, it is abundantly clear that the appellant (whom the trial judge, despite her age, described as a "cagey witness" and as "a streetwise and sophisticated young woman" intimately associated with a fugitive sought on charges of high level cocaine trafficking) knew full well that she was being questioned in relation to the very matter in respect of which it is argued a second warning should have been given. Under these circumstances, I am at a loss to understand how these statements would, if admitted, result in the trial being unfair.
21 I should add that, had the circumstances been such that the admission of the evidence would lead to an unfair trial, I would have had no difficulty rejecting the evidence by virtue of the Charter. I would not take this step under s. 24(2), which is addressed to the rejection of evidence that has been wrongfully obtained. Nor would I rely on s. 24(1), under which a judge of competent jurisdiction has the power to grant such remedy to a person who has suffered a Charter breach as the court considers just and appropriate. Rather, 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.
22 I shall, however, attempt to put more flesh on this approach because the argument was strongly advanced that since there was no breach of the Charter in obtaining the evidence, a prerequisite to the power to exclude evidence under s. 24(2) of the Charter, there was no Charter based jurisdiction to exclude evidence. The difficulty with this contention is that it fails to appreciate the full nature of a fair trial. As I mentioned, while s. 24(2) is directed to the exclusion of evidence obtained in a manner that infringed a Charter right, it does not operate until there is a Charter breach. What we are concerned with here is not the remedy for a breach but with the manner in which a trial must be conducted if it is to be fair.
23 The law of evidence has developed many specific rules to prevent the admission of evidence that would cause a trial to be unfair, but the general principle that an accused is entitled to a fair trial cannot be entirely reduced to specific rules. In R. v. Corbett,  1 S.C.R. 670, a majority of this Court made it clear that a judge has a discretion to exclude evidence that would, if admitted, undermine a fair trial; see also R. v. Potvin,  1 S.C.R. 525. Similarly, Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), at p. 401, conclude that "if the admission of certain evidence would adversely affect the fairness of an accused's trial, the evidence ought to be excluded" (emphasis added). In Thomson Newspapers, supra, I attempted to explain that this approach is a necessary adjunct to a fair trial as guaranteed by s. 11(d) of the Charter in the following passage, at p. 559:
. . . there can really be no breach of the Charter until unfair evidence is admitted. Until that happens, there is no violation of the principles of fundamental justice and no denial of a fair trial. Since the proper admission or rejection of derivative evidence does not admit of a general rule, a flexible mechanism must be found to deal with the issue contextually. That can only be done by the trial judge.
I went on to further explain, as I had in Corbett, supra, that the common law principle had now been constitutionalized by the Charter's guarantee of a fair trial under s. 11(d) of the Charter. At page 560, I continued:
The fact that this discretion to exclude evidence is grounded in the right to a fair trial has obvious constitutional implications. The right of an accused to a fair hearing is constitutionalized by s. 11(d), a right that would in any event be protected under s. 7 as an aspect of the principles of fundamental justice (see R. v. Corbett, per Beetz J., at p. 699, and my reasons, at pp. 744-46; Dickson C.J. does not really comment on this issue).
24 The effect of s. 11(d), then, is to transform this high duty of the judge at common law to a constitutional imperative. As I noted in Thomson Newspapers, at p. 563, judges must, as guardians of the Constitution, exercise this discretion where necessary to give effect to the Charter's guarantee of a fair trial. In a word, there is no need to resort to s. 24(2), or s. 24(1) for that matter. In such circumstances, 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.
25 I would dismiss the appeal.
The reasons of McLachlin and Major JJ. were delivered by
26 McLachlin J. -- This appeal requires us to consider whether failure of the police in a foreign country to comply with the Canadian Charter of Rights and Freedoms renders the evidence they gather inadmissible in Canada. The appellant Harrer was tried in Canada on the basis of statements she made to American police in the United States. The trial judge excluded one of Harrer's statements on the ground that the police failed to give her a second right-to-counsel warning when their questioning changed focus, as required by the Canadian Charter, but not required under U.S. law. As a result, Harrer was acquitted. The Court of Appeal of British Columbia ruled that this was an error and ordered a new trial. Harrer now appeals to this Court. The issue before us is whether the failure of the United States police to comply with Canadian law makes the statement inadmissible in Canada. I conclude that it does not.
27 Harrer is charged with helping her friend Hagerman escape from prison in Canada by slipping him a diamond wire in the form of a bracelet and providing him with cash, clothing and a get-away car. Since Hagerman was awaiting extradition to the United States, the U.S. police offered to assist in the investigation of his escape. Vancouver police told them that Harrer may have been involved and offered information suggesting that she might have a criminal record. By this time, Harrer was in the United States, visiting Hagerman's mother.
28 An American immigration officer, accompanied by federal marshals, arrested Harrer, citing reason to believe that she was an illegal alien in the United States. The arresting officers had two related purposes in mind: to investigate Harrer's immigration status and to interview her with respect to the Hagerman escape. The officers gave Harrer the warnings required by American law, which included informing her of her right to counsel. In response to questioning as to Hagerman's whereabouts, Harrer admitted that she had driven a van to a parking lot at Hagerman's request, but did not know why (the first statement).
29 One of the U.S. marshals contacted the Vancouver police again, who relayed information that Harrer may have passed a vehicle key and some diamond wire in the form of a bracelet to Hagerman. I share the trial judge's view that at this point, the focus of the interview shifted to Harrer's criminal participation in the escape. Under the Canadian Charter, a second warning must be given when a police inquiry shifts from one area of inquiry to a new and more serious one: R. v. Black,  2 S.C.R. 138; R. v. Evans,  1 S.C.R. 869. The American officers, following United States law, gave no second warning. The interview continued and Harrer admitted to having done these things (the second statement).
30 After further questioning, during which the authorities held out the hope of advantage should Harrer assist them, she also confessed to purchasing and leaving in a get-away van a set of handcuffs, a police radio scanner, clothing and $1000 (the third statement). While these admissions of criminal activity made Harrer an excludable alien, the immigration authorities decided not to deport Harrer, but to allow her to return to Canada unaccompanied. The U.S. officers sent Harrer's confessions to the Canadian police.
31 Harrer was charged in Canada with assisting in Hagerman's escape. The main evidence against her was the confessions to the American officers. The trial judge excluded the third statement on the ground that it was not voluntary, and the second on the ground that it had been obtained in violation of Harrer's right under the Charter to a second warning preceding interrogation on her criminal role in Hagerman's escape. Only the first statement was admitted. Harrer was acquitted. The Court of Appeal ((1994), 42 B.C.A.C. 218) allowed the Crown's appeal, ruling that the Charter did not apply in the United States and that both of the first two statements should have been admitted. Harrer now appeals to this Court, seeking restoration of the acquittal.
32 The main issue is whether Harrer's second statement should have been excluded. This raises two sub-issues:
1. Does the Charter apply to foreign authorities acting outside Canada's boundaries?
2. Do the principles of fundamental justice and the right to a fair trial permit exclusion of evidence obtained outside Canada?
1. Does the Charter Apply to Foreign Authorities?
33 The trial judge proceeded on the basis that the Charter applied to the interrogation in the United States. This led her to conclude that the interrogation violated s. 10(b) which guarantees the right on arrest or detention to retain and instruct counsel without delay. Breach of the Charter thus established, she excluded the statements under s. 24(2) of the Charter, which permits a judge to exclude evidence obtained in violation of the Charter where its admission "would bring the administration of justice into disrepute".
34 The Court of Appeal held that the Charter did not apply to the interrogations in the United States. It followed from this that no Charter breach had occurred, and that the evidence could not be excluded under s. 24(2).
35 I share the view of the Court of Appeal that the Charter does not apply to non-Canadian authorities and cannot be so regarded by the courts. This follows from s. 32 of the Charter, which provides:
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
Similarly, this Court has held that the Charter is limited to the boundaries of Canada: Kindler v. Canada (Minister of Justice),  2 S.C.R. 779, an extradition case in which the Court was asked to judge American law by the standards of the Charter. I wrote, for the majority at p. 847:
This Court has in the past refused to apply Charter guarantees to defects in proceedings outside the country. In [Canada v.] Schmidt, [ 1 S.C.R. 500], the majority, per La Forest J., rejected the argument that s. 11 rights could serve as an independent ground of Charter review, since the fugitive had not been charged with a crime in Canada. . . . To go beyond [the application set out in s. 32] would be to give the section extraterritorial effect . . .
36 Harrer attempts to circumvent the domestic limits of the Charter by arguing that the s. 10(b) breach occurs when the evidence was tendered at trial. The trial judge, she argues, was not applying s. 10(b) of the Charter to the events that occurred in the United States, but rather applying it in Canada to evaluate those events. I cannot accept this argument. The right to counsel is given "on arrest or detention". The right therefore appertains to the time of arrest or detention, and not to the time at which evidence is admitted at trial: R. v. Shafie (1989), 47 C.C.C. 27 (Ont. C.A.), at p. 34, per Krever J.A. Harrer's subsidiary points -- that the Charter should be applied in a purposive manner, that the admission of evidence is governed by the law of the trial forum, that s. 24(2) of the Charter should be applied broadly, and that Kindler can be distinguished because it is an extradition case -- do not meet the fundamental fact that to hold that the American officers breached Harrer's Charter rights on arrest is to apply the Charter outside the scope of s. 32, something no court can do.
37 Harrer also argues that the Charter applied to the American officers because they were agents of the Canadian officers and hence bound by the Charter. This is largely a question of fact. This is an appeal as of right, on questions of law alone. Accordingly, the issue of agency is not properly before us and I offer no further comment on it.
2. Do the Principles of Fundamental Justice and the Right to a Fair Trial Permit Exclusion of the Evidence Obtained Outside Canada?
38 The appellant argues in the alternative that even in the absence of a Charter breach in gathering the evidence, her second statement is not admissible against her at her trial in Canada. Her first submission is that admission of the statement would violate her right to silence or the right against self-incrimination contrary to s. 7 of the Charter. This submission cannot succeed. The law accords to suspects the right not to incriminate themselves if they so choose. It does not require exclusion of self-incriminatory statements voluntarily made. The statement was voluntary and admissible under the confessions rule as interpreted by this Court in the context of s. 7 in R. v. Hebert,  2 S.C.R. 151.
39 This leaves the argument that the conduct of the American police prior to the taking of the statement requires its exclusion from evidence to preserve a fair trial in Canada. The argument is simply put. Every person charged in Canada has a right to a fair trial. The Canadian courts are bound to provide this fair trial, and to this end may exclude evidence which would render a trial unfair. Admission of Harrer's second statement would render her trial unfair. Therefore the trial judge correctly excluded it.
40 The first premise of this argument does not permit of dissent. Every person tried in Canada is entitled to a fair trial. The right to a fair trial is the foundation upon which our criminal justice system rests. It can neither be denied nor compromised. The common law has for centuries proclaimed it, and the Canadian Charter confirms it. Section 11(d) provides that "Any person charged with an offence has the right . . . to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal". The right to a fair trial is also a "principle of fundamental justice" which s. 7 of the Charter requires to be observed where the liberty of the subject is at stake: R. v. Seaboyer,  2 S.C.R. 577, at p. 603; Re B.C. Motor Vehicle Act,  2 S.C.R. 486.
41 The second premise of the argument, that judges have the power to exclude evidence where its admission would render the trial unfair, while less obvious, is readily resolved. At common law, a trial judge has a discretion to exclude evidence "if the strict rules of admissibility would operate unfairly against the accused": Kuruma v. The Queen,  A.C. 197, at p. 204, per Lord Goddard. Similarly, in Canada, the discretion allows exclusion of evidence that "would undermine the right to a fair trial": R. v. Corbett,  1 S.C.R. 670, at p. 692, per Dickson C.J., Beetz and Lamer JJ. concurring, at pp. 736-37, per La Forest J. (dissenting), considering s. 12 of the Canada Evidence Act, R.S.C. 1970, c. E-10. This principle permits the exclusion of evidence the probative value of which is outweighed by its prejudicial effect: Seaboyer, supra, at pp. 609-11; R. v. Potvin,  1 S.C.R. 525, at p. 531. Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), at p. 401, conclude that "[i]t seems uncontroversial that if the admission of certain evidence would adversely affect the fairness of an accused's trial, the evidence ought to be excluded".
42 In addition to the common law exclusionary power, the Charter guarantees the right to a fair trial (s. 11(d)) and provides new remedies for breaches of the legal rights accorded to an accused person. Evidence obtained in breach of the Charter may only be excluded under s. 24(2): R. v. Therens,  1 S.C.R. 613. Evidence not obtained in breach of the Charter but the admission of which may undermine the right to a fair trial may be excluded under s. 24(1), which provides for "such remedy as the court considers appropriate and just in the circumstances" for Charter breaches. Section 24(1) applies to prospective breaches, although its wording refers to "infringe" and "deny" in the past tense: Operation Dismantle Inc. v. The Queen,  1 S.C.R. 441. It follows that s. 24(1) permits a court to exclude evidence which has not been obtained in violation of the Charter, but which would render the trial unfair contrary to s. 11(d) of the Charter.
43 I conclude that a judge may exclude evidence which was not obtained by Charter breach but which would render the trial unfair either at common law or under s. 24(1) of the Charter. The debate thus shifts to the third premise of the appellant's argument -- that to admit Harrer's second statement would render the trial unfair.
44 Whether a particular piece of evidence would render a trial unfair is often a matter of some difficulty. A distinction must be made at the outset between unfairness in the way a statement was obtained and an unfair process or trial. The situation in which police take evidence is complex. Even where every effort is made to comply with the law, aspects of the process may, in hindsight, be argued to have been less than fair. Sometimes the unfairness is minor or rendered insignificant by other developments (for example, that the police would probably have obtained the evidence anyway) or by other aspects of the case (for example, that the accused waived or acquiesced in the unfairness). Sometimes the unfairness is more serious. The point is simply this: unfairness in the way evidence is taken may affect the fairness of the admission of that evidence at trial, but does not necessarily do so. This is true for Charter breaches; not every breach of the Charter creates an unfairness at trial which requires exclusion of the evidence thereby obtained: R. v. Collins,  1 S.C.R. 265, at p. 284. It must also be true for irregularities that do not constitute Charter breaches.
45 At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons,  2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.
46 Evidence may render a trial unfair for a variety of reasons. The way in which it was taken may render it unreliable. Its potential for misleading the trier of fact may outweigh such minimal value it might possess. Again, the police may have acted in such an abusive fashion that the court concludes the admission of the evidence would irremediably taint the fairness of the trial itself. In the case at bar, police abuse or unfairness is the only ground raised, and hence the only one with which we need concern ourselves.
47 Harrer agrees that the American authorities complied fully with American law with respect to the second statement. As we have seen, they also complied with the requirements for the admissibility of confessions at common law and under s. 7 of the Charter. Her argument reduces to a claim that the failure of the American police to comply with the second warning requirement of the Canadian Charter means that to use the statement would render the trial unfair. If the statement had been taken in Canada, it would have been excluded. The result should be the same if it was taken abroad, she argues.
48 The question is whether the failure of the foreign police to comply with the procedures required under the Charter in Canada so taints the evidence that its admission would result in an unfair trial. In my view, it does not. This is because the police conduct of which Harrer complains was, viewed in all the circumstances of this case, including the expectations of Harrer in the place where the evidence was taken, neither unfair or abusive. Since the police conduct was not unfair, it follows necessarily that its admission cannot render the trial unfair.
49 The fact that the statement might not have been admissible had it been taken in Canada does not mean that its admission will render Harrer's trial unfair. The reason for exclusion of a statement taken in Canada in violation of the Charter is the unfairness of prosecuting the accused "with evidence created by the accused himself in circumstances in which the evidence would not have come into existence but for the state's failure to accord the accused a constitutionally protected right" (emphasis added): Sopinka, Lederman and Bryant, supra, at p. 402. The unfairness arises in large part from the accused's expectation that the police in Canada will comply with Canadian law. Where the statement is taken abroad, the expectation is otherwise.
50 Harrer, when in the United States, must be taken to bound by the law of the United States. Not only does the person outside Canada not enjoy the protections of the Charter, he or she must be taken to have accepted the procedures in place in the foreign jurisdiction, provided that they fall within the range of procedures generally accepted in free and democratic countries. Where the evidence has been obtained in conformity with the law of another country, concerns about unfairness are attenuated by the fact that the accused has submitted to the foreign jurisdiction and must be taken to have accepted the law of that jurisdiction. In Canada, every person has the right to expect that the authorities will comply with the Charter; outside Canada, their right is to be treated in accordance with the laws of the foreign country in question: Tolofson v. Jensen,  3 S.C.R. 1022, at p. 1049, per La Forest J. Travellers to foreign countries must observe the laws of that country, and must accept that it is the laws and procedures of that country which will govern their existence there. Travellers to foreign countries must also be taken to know that law officers in different countries cooperate with each other, that extradition treaties exist, and that evidence taken in one state may be used in another. When these circumstances are taken into account, the alleged unfairness of the way Harrer was treated disappears.
51 It may be that the procedures accepted in the foreign country fall so short of Canadian standards that the judge concludes that notwithstanding the suspect's submission to the law of the foreign jurisdiction, to admit the evidence would be so grossly unfair as to repudiate the values underlying our trial system and condone procedures which are anathema to the Canadian conscience. Or it may be that the law of the foreign jurisdiction has been abused by the authorities, again rendering it unfair to receive the evidence. But in most cases of evidence taken abroad in conformity to laws generally recognized as just, mere dissimilarity between the foreign legal rules and those required by the Charter does not establish that admission of the evidence would render the trial unfair.
52 Harrer's second statement did not come into existence upon a denial of a constitutionally protected right, as no equivalent right exists in the United States. Moreover, the deviation from Canadian procedures was not at the most serious end of the scale. Harrer was advised of her right to counsel at the outset of the interview. The requirements of the American law, based on the same values that actuate the Canadian law, were fully complied with. Harrer, in leaving Canada for the U.S., must be taken to have attorned to its law and procedures. She can hardly complain of unfairness if those procedures, generally considered to be fair by standards in the free and democratic world, were fully followed.
53 The other reason asserted for exclusion of such a statement taken in Canada, is that the suspect has been unable to make a fully informed choice about whether to make a statement or retain counsel. This, it is said, constitutes unfair treatment of the accused which in turn would render the trial unfair were the statement admitted. In Black and Evans, this reasoning was accepted. But it was premised on the right of a suspect under the Charter to be informed of the full extent of his or her jeopardy, before electing whether or not to consult with counsel.
54 As Wilson J. points out in Black, at pp. 152-53, s. 10(b) must be read interactively with s. 10(a). The obligation to give a second warning is related to the requirement of s. 10(a) that a detained person "be informed promptly of the reasons therefor" (emphasis added):
Moreover, s. 10(b) should not be read in isolation. Its ambit must be considered in light of s. 10(a). Section 10(a) requires the police to advise an individual who is arrested or detained of the reasons for such arrest or detention. The rights accruing to a person under s. 10(b) arise because he or she has been arrested or detained for a particular reason. An individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy.
The need for a second warning when the focus of the interrogation changes seems to arise from the interaction within the Canadian Charter of the right to counsel and the requirement that a detained person be informed of the specific reason for the detention. When a suspect leaves Canada, that person does not take these rights with him or her. Harrer's rights in the United States, while ample, did not include being informed of a change in the reason for detention, and a second warning when the reason for the detention changed. Having attorned to the law of the United States, Harrer cannot complain that the right which ss. 10(a) and (b) confer on persons detained in Canada was not respected.
55 This is sufficient to dispose of the appellant's contention that reception of the evidence would render her trial unfair. I wish to add that there are important reasons why Canadian courts should not automatically reject evidence taken abroad because foreign police forces have not met every requirement that might have prevailed in Canada. While certain basic standards are common to free and democratic societies, particular procedural requirements may vary. It is reasonable to expect of police forces abroad that they meet basic standards of fairness. It is not reasonable to expect them to comply with details of Canadian law. To insist on conformity to Canadian law would be to insist on external application of the Charter in preference to the local law. It would render prosecution of offences with international aspects difficult if not impossible. And it would undermine the ethic of reciprocity which underlies international efforts to control trans-border crime: Argentina v. Mellino,  1 S.C.R. 536, at p. 551, per La Forest J. We live in an era when people, goods and information pass from country to country with great rapidity. Law enforcement authorities, if they are to do their job, must apprehend people and intercept goods and communications wherever they may be found. Often they find themselves working with officers in foreign jurisdictions; often they are merely the recipients of information gathered independently elsewhere. The result is evidence gathered by rules which may differ from Canadian rules. We need to accommodate the reality that different countries apply different rules to evidence gathering, rules which must be respected in some measure if we are to retain the ability to prosecute those whose crime and travel take them beyond our borders. To insist on exact compliance with Canadian rules would be to insist universally on Canadian standards* of procedures which, in the real world, may seldom be attained -- an insistence which would make prosecution of many offences difficult, if not impossible.
56 I conclude that the trial judge erred in excluding the second statement. I would dismiss the appeal and confirm the order for a new trial.
Solicitors for the appellant: Smart & Williams, Vancouver.
Solicitor for the respondent: The Ministry of the Attorney General, Vancouver.
Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.
Solicitor for the intervener Robert Scott Terry: Charles Lugosi, Prince George.
* See Erratum  2 S.C.R. iv