Voluntariness: the Voir Dire

No unqualified right of counsel for a co-accused to participate in the voluntariness voir dire

It is fundamental that in nearly all cases, a statement made to a person in authority by one accused is not admissible in relation to another co-accused in a joint trial, even if the statement refers to something said or done by the other accused.

R. v. Zvolensky, 2017 ONCA 273, at para. 25.

The co-conspirators’ exception to hearsay is an exception to this general rule.

See, R. v. Baron (1976), 31 C.C.C. (2d) 525 (Ont. C.A.), at p. 533.

It follows that, at least as a general rule, a co-accused has no direct interest in a voir dire held to determine the admissibility of another co-accused’s statement, thus no unqualified right to participate in a voir dire to determine the admissibility of that statement:

R. v. McLeod (1983), 6 C.C.C. (3d) 29 (Ont. C.A.), at p. 36, affirmed [1986] 1 S.C.R. 703.

R. v. Richards, 2017 ONCA 424: the trial judge erred in permitting counsel for the co-accused to participate in the voir dire to determine the voluntariness.  Doing so was a procedural irregularity, the appellant suffered no prejudice as a result, and the court maintained jurisdiction.  Application of the curative proviso in s. 686(1)(b)(iv) would sustain the voir dire result.

An accused who testifies on a voir dire into the voluntariness of a statement to persons in authority can be asked about the truthfulness of the statement or parts of it

In R. v. DeClercq, [1968] S.C.R. 902, the Supreme Court of Canada held that the truth or falsity of a statement to a person in authority is not irrelevant to an inquiry into the voluntariness of the statement. In giving evidence on the voir dire on voluntariness, an accused may be asked whether the statement is true:

DeClercq, at pp. 907-8 and 911.

In R. v. Richards, 2017 ONCA 424, the Court of Appeal for Ontario was unwilling  to revisit the law on this issue: 

Until the Supreme Court of Canada says otherwise, DeClercq remains binding precedent despite its reliance on R. v. Hammond (1943), 28 Cr. App. R. 84 (C.C.A.), a decision subsequently overruled by the Privy Council in R. v. Wong Kam-Ming (1979), 69 Cr. App. R. 47.

R. v. Richards, at para. 82.

In addressing the appellant’s argument that allowing cross-examination on the truthfulness of the statement may elicit incriminating evidence from an accused, the Court noted as follows:

·         The discrete nature of voir dire proceedings ensures that the answers given there do not form part of the evidence at trial on the basis of which the guilt of an accused will be determined;

·         An accused testifies on the voir dire imposes no obligation on him or her to testify at trial; and

·         That an accused who testifies may be compelled to give incriminating responses is not confined to cross-examination on a voir dire. It extends equally to the trial itself.

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Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca)