The Common Law Confessions Rule does not Extend to Statements Tendered in a Voir Dire under the Canadian Charter of Rights and Freedoms


The Crown must prove the voluntariness of an accused’s statement before it can rely upon that statement at trial as supporting a finding of guilt.

The purpose of the judicial inquiry in a Charter voir dire is distinct from the purpose of a criminal trial. A criminal trial is concerned with determining whether the accused is guilty of an offence. In a Charter voir dire, however, the focus is not on the accused’s guilt, but on whether the accused’s constitutional rights were infringed. A Charter voir dire therefore involves a review of the totality of the circumstances known to, and relied upon by, the state actor at the time of the impugned action.

Admitting a statement by an accused for the purpose of assessing the constitutionality of state action, as opposed to the purpose of determining the accused’s guilt, does not engage the rationale for the confessions rule. To apply the rule to evidence presented at a Charter voir dire would distort both the rule and its rationale.

R. v. Paterson, 2017 SCC 15, at para 21.

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