Friday, March 8, 2013
A voir dire is a “trial within a trial”. It is used to determine conditions precedent to the admission or exclusion of evidence. The voir dire may dispose of the entire case - - if the evidence is excluded the prosecution may fail - - or the voir dire may deal with a relatively minor point. Nevertheless, regardless of how complex or simple a voir dire is a separate proceeding from the trial itself. Accordingly, the evidence heard on the voir dire does not, unless there is agreement by the parties, form part of the evidence at trial.
It is critically important to note that the voir dire, a trial within a trial, is used in evidentiary objections only when there needs to be some preliminary fact proven in order to allow the presiding judicial officer to make a determination of admissibility. Thus, if evidence is inadmissible on its face no voir dire is required. Similarly, if, an objection is made for example, suggesting that evidence is inadmissible because it is hearsay but the purpose for which the evidence is sought to be admitted is not to prove the truth of the statement then, similarly, no voir dire is required. The purpose of a voir dire is to prove some fact which will then allow the presiding judicial officer to make a determination as to admissibility.
Most commonly voir dires are seen dealing with the admissibility of a statement made by an accused to a person in authority, usually a police officer. It is important to be clear that such “confession” voir dires have nothing to do with hearsay. The voluntariness of a statement, which is the focus of a “confession” voir dire does not relate to its hearsay nature. Almost by definition statements made by an accused to a police officer will be hearsay - - they are usually being adduced to prove the truth of the statement. That said, since the statement is normally being used against the accused, a traditional exception, admission, applies and so the statement is usually not barred by the hearsay rule. Nevertheless, the confession rule, which requires statements made by an accused to a person in authority be proven free and voluntary to beyond a reasonable doubt, does apply and a voir dire is necessary.
Regardless, while voir dires are less likely to be seen in hearsay matters, the process of conducting the voir dire is identical regardless of the nature of the underlying evidentiary objection.
As a general rule, voir dires proceed on a relatively informal basis without any documentary notice of motion. That said, and despite some recent judicial commentaries that may be interpreted to the contrary, wherever a Charter remedy under s. 24 (1) of the Charter is sought proper notice for the voir dire must be given to both the federal and provincial Attorneys General under s. 109 of the Courts of Justice Act. Such notice must be given at least 15 days before the matter is raised and the failure to give notice is by statute fatal.
A few of the more significant principals that apply to a voir dire are set out well by our former Attorney General, Chris Bentley, in his Criminal Practice Manual. I can do no better than to merely repeat them.
1. The voir dire is a trial within a trial. It is a separate and isolated proceeding in many ways. If the evidence is ruled admissible, it will not be evidence at the trial unless it is called again (or in a judge alone trial is made evidence on consent).
2. The admissibility ruling made on the voir dire will determine whether the evidence tendered, either by the Crown or the defence, can be lead at the trial. Evidence excluded may only in rare cases be re-introduced at a trial (R. v. Calder,  1 S.C.R. 660, 105 C.C.C. (3d) 1, 46 C.R. (4th) 133, 132 D.L.R. (4th) 577, 194 N.R. 52, 34 C.R.R. (2d) 189, 90 O.A.C. 18).
3. A voir dire is a separate proceeding for the purpose of s. 13 of the Charter. This means that evidence given by a witness on a voir dire cannot be used to “incriminate” that witness. However, it would appear that the witness may have his/her credibility attacked on the basis of what was testified to during the voir dire (see Chapter 4.12).
4. The party with the burden of proof on the voir dire must lead the evidence. This is usually the Crown with respect to non-Charter matters, and the accused with respect to Charter applications.
5. There is some evidentiary issues which become complicated because of the various challenges brought to the item of evidence. For example, a statement by an accused to a person in authority might have its evidentiary admissibility challenged though the common-law confessions rule, and also through ss.10(b) and 7 of the Charter. The burden of proof with respect to the confessions rule is on the Crown beyond a reasonable doubt. The Crown must lead the evidence. The burden of proof with respect to the Charter application is on the accused, on a balance of probabilities. Two voir dires may be held, however, this is a rather lengthy and cumbersome procedure. The more common practice is to hold one voir dire, and sort out the evidentiary issues later.