R. v. Chaing, 2012 ONCA 59 deals with a case where there was confusion about evidence given on a voir dire and actual testimony. Evidence given on a voir dire is not thereby evidence given in a trial. The distinction is critical to remember; with some many blended voir dire cases special care must be taken. The Court holds:
[4] It is clear from the record that the appellant testified on the Charter voir dire only, and not at the trial proper. This is reflected in the following exchange between the trial judge and defence counsel:
THE COURT: ...you don't plan to call any evidence on the substantive charge?
MR. ANBER: That's correct, Your Honour.
[5] Unfortunately, the trial judge appears to have forgotten this when he turned to his brief oral decision. He said:
THE COURT: ...I can only say on the issue of possession, frankly the evidence is there. The evidence is overwhelming, and I have no difficulty whatsoever in being satisfied beyond a reasonable doubt on all the evidence including his own client's own evidence, that Mr. Chaing had possession, in other words that he had knowledge, and that he had control over the drugs that were found in the trunk.
No comments:
Post a Comment