Voir Dire (Criminal Law)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-22
CLNP Page ID:	2289
Page Categories:	Evidence Law
Citation:	Voir Dire (Criminal Law), CLNP 2289, <https://rvt.link/98>, retrieved on 2024-11-22
Editor:	Sharvey
Last Updated:	2023/10/23

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R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 SCR 449

40 The issue as to whether the trial judge in this case erred in failing to hold a voir dire before admitting the confession into evidence can now be considered.

41 The trial judge has a duty “to conduct the trial judicially quite apart from lapses of counsel”: see R. v. Sweezey (1974), 1974 CanLII 1427 (ON CA), 20 C.C.C. (2d) 400 (Ont. C.A.), at p. 417. This includes the duty to hold a voir dire whenever the prosecution seeks to adduce a statement of the accused made to a person in authority: see pp. 417‑18. However, where the defence has not requested a voir dire and a statement of the accused is admitted into evidence, the trial judge will only have committed reversible error if clear evidence existed in the record which objectively should have alerted him or her to the need for a voir dire notwithstanding counsel’s silence. Thus, the test for holding a voir dire is assessed by an appellate court’s objective review of the evidence in the record to determine whether something should have triggered the trial judge’s obligation to conduct an inquiry. This test is different from the test applicable on the voir dire, which requires the trial judge to undertake an examination of the reasonable belief of the accused and the circumstances surrounding the making of the statement to determine both whether the receiver is a person in authority and whether the statement was made voluntarily.

42 These tests are easily confused, as it is possible to assert that the evidence which alerts the trial judge to the need for a voir dire must relate to the accused’s state of mind, since only this type of evidence could demonstrate that the accused believed the receiver of the statement to be a person in authority. This approach is too narrow. The subjective view of the accused might never be ascertained unless there is a voir dire. To hold that the trial judge has no obligation to hold a voir dire unless evidence of the accused’s mental state is already in the record would render the obligation meaningless. Certainly evidence relating to the accused’s state of mind may well trigger the need for a voir dire, but the standard should be set lower.

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48 Perhaps it may be of some assistance to set out in summary form the applicable principles pertaining to the admission of statements made by the accused to persons in authority and some of the factors to be taken into consideration with regard to them.

1. The rule which is still applicable in determining the admissibility of a statement made by an accused to a person in authority is that it must have been made voluntarily and must be the product of an operating mind.

2. The rule is based upon two fundamentally important concepts: the need to ensure the reliability of the statement and the need to ensure fairness by guarding against improper coercion by the state. This results in the requirement that the admission must not be obtained by either threats or inducements.

3. The rule is applicable when the accused makes a statement to a person in authority. Though no absolute definition of “person in authority” is necessary or desirable, it typically refers to those formally engaged in the arrest, detention, examination or prosecution of the accused. Thus, it would apply to person such as police officers and prison officials or guards. When the statement of the accused is made to a police officer or prison guard a voir dire should be held to determine its admissibility as a voluntary statement, unless the voir dire is waived by counsel for the accused.

4. Those persons whom the accused reasonably believes are acting on behalf of the police or prosecuting authorities and could therefore influence or control the proceedings against him or her may also be persons in authority. That question will have to be determined on a case-by-case basis.

5. The issue as to who is a person in authority must be resolved by considering it subjectively from the viewpoint of the accused. There must, however, be a reasonable basis for the accused’s belief that the person hearing the statement was a person in authority.

6. The issue will not normally arise in relation to undercover police officers. This is because the issue must be approached from the viewpoint of the accused. On that basis, undercover police officers will not usually be viewed by the accused as persons in authority.

7. If it is contended that the recipient of the statement was a person in authority in the eyes of the accused then the defence must raise the issue with the trial judge. This is appropriate for it is only the accused who can know that the statement was made to someone regarded by the accused as a person in authority.

8. On the ensuing voir dire the accused will have the evidential burden of demonstrating that there is a valid issue for consideration. If the accused meets the burden, the Crown will then have the persuasive burden of demonstrating beyond a reasonable doubt that the receiver of the statement was not a person in authority or if it is found that he or she was a person in authority, that the statement of the accused was made voluntarily.

9. In extremely rare cases the evidence adduced during a trial may be such that it should alert the trial judge that the issue as to whether the receiver of a statement made by an accused was a person in authority should be explored by way of voir dire. In those cases, which must be extremely rare in light of the obligation of the accused to raise the issue, the trial judge must of his or her own motion direct a voir dire, subject, of course, to waiver of the voir dire by counsel for the accused.

10. The duty of the trial judge to hold a voir dire of his or her own motion will only arise in those rare cases where the evidence, viewed objectively, is sufficient to alert the trial judge of the need to hold a voir dire to determine if the receiver of the statement of the accused was, in the circumstances, a person in authority.

11. If the trial judge is satisfied that the receiver of the statement was not a person in authority but that the statement of the accused was obtained by reprehensible coercive tactics, such as violence or credible threats of violence, then a direction should be given to the jury. The jury should be instructed that if they conclude that the statement was obtained by coercion, they should be cautious about accepting it, and that little if any weight should be attached to it.