Voir Dire (Criminal Law)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-09-29
CLNP Page ID:	2289
Page Categories:	Evidence Law
Citation:	Voir Dire (Criminal Law), CLNP 2289, <>, retrieved on 2024-09-29
Editor:	Sharvey
Last Updated:	2023/10/23

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

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.