R. v. Harrer

Does the Charter apply to foreign authorities acting outside Canada's boundaries?

Do the principles of fundamental justice and the right to a fair trial permit exclusion of evidence obtained outside Canada?

Analysis

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: