Voir Dire

This page was last substantively updated or reviewed June 2021. (Rev. # 95520)

• < Procedure and Practice
• < Pre-Trial and Trial Matters

• < Evidence

General Principles

A Voir Dire is a hearing to determine a question of law, including the admissibility of evidence. It is typically held during a trial but is considered a separate hearing from the trial itself. It is known as a "trial within a trial" and designed to determine an issue separate from the trial on matters of procedure or admissibility of evidence.

Purpose

The fundamental purpose of a voir dire is to determine the admissibility of disputed evidence separate from the merits of the trial. The separation from the trial permits and exploration and testing of the evidence without affecting the integrity of the trial process.

Procedure

The procedure in holding a voir dire is at the discretion of the judge based on the issue and nature of the "means of proof available."

Establishing Basis for Voir Dire

A party seeking a voir dire has an obligation to "demonstrate a reasonable basis for holding a voir dire". The trial judge is permitted to screen out application where "remedy cannot reasonably be granted."

Failure to Follow Procedure

The failure of holding a voir dire to determine if potentially inadmissible evidence should be heard will not not always be fatal to the trial. Where the evidence is still tested and there is no prejudice to the accused to may still be valid. The court must consider whether the process was followed that served the same purpose as the voir dire.

Directed Verdict

There seems to be some ability to make a motion for "non-suit or directed verdict" motion by the responding party to a voir dire application.

Jury Trials

A voir dire should always be held in absence of the jury. It is important that the jury not be told anything about the purpose of the voir dire or the result of the hearing.

Timing of voir dire

It has been recommended that judges ruling on voir dires "should resist making final rulings until such time as they required to do so". As the trial progresses many issues may resolve themselves. However, where the "proposed evidence is likely to have a significant impact on the outcome of the trial" then it should be dealt with early.

Multiple Void Dies

Each evidentiary issue should be treated as a separate voir dire and their evidence cannot be joined without consent. That being said, particular pieces of evidence may raise multiple issues of admissibility and are usually treated together. Caution must be taken by the judge to ensure their ruling reflect "an informed understanding" of the governing law.

Types of Voir Dires

Applying Rules Evidence

The judge must determine whether the "conditions precedent" to the admission of evidence have been met.

Constitutional Challenges to the Admissibility of Evidence

The process of challenging the constitutionality of the admissibility of evidence requires first an inquiry into the constitutionality of the state's conduct and then second, should a finding of unconstitutionality is found, an inquiry into the "admissibility of the evidence obtained by the infringement."

Provincial Rules of Court may also provide guidance on procedure.

Challenging Warrant Validity

Procedurally, a voir dire on the for the validity of a warrant should proceed as follows:

(a) The trial judge should determine whether a voir dire is necessary and, if so, whether the calling of evidence should be permitted;

(b) If the judge accedes to the request to hold a voir dire and the accused wishes to cross-examine the informant, then the accused must obtain leave of the judge to do so. If the judge grants leave, then he or she can limit the scope of the cross-examination;

(c) Cross-examination should proceed to the extent permitted by the order granting leave;

(d) Re-examination, if any, should follow the cross-examination; and

(e) The trial judge should determine whether the record as amplified on the review could support the issuance of the warrant.

Waiver

A voir dire cannot be waived by mere silence of counsel.

Unequivocal admission of the issue by an opposing party should generally be sufficient to forgo a voir dire. The judge should be be satisfied that counsel understood the matter and has made an informed decision.

Voir Dire Evidence

Charter applications require a factual record. They cannot be argued in a vacuum.

There is no strict requirement in law that voir dires must be conducted on viva voce evidence. The court may, as a matter of efficiency and judicial economy, decide the issues on the basis of counsel summation of evidence.

Affidavits that are based on hearsay should be given little weight and generally should not be considered admissible as evidence on a Charter application.

Since evidence in a voir dire is separate and apart from evidence in the trial proper, each exhibit should be marked to be distinguished from the trial such as "V.D. Exhibit 1, etc".

The accused can be cross-examined at trial on evidence that they gave during a voir dire. During the voir dire, he may be questioned on the truthfulness of a previous statement.

Admissibility of Voir Dire Evidence Within the Trial

A voir dire is considered a separate hearing and so evidence admitted in the voir dire is not automatically evidence in the trial proper.

The evidence heard in a voir dire can become evidence of the trial proper where it has been found admissible in the voir dire and both parties consent (known as a "blended" voir dire).

Consent for a blended voir dire can be applied only to some of the evidence to the exclusion of the rest of the evidence heard.

However, where there has been evidence accepted at the voir dire that would otherwise be inadmissible at trial, and which was consented as applicable to the trial, the validity of the verdict may be in question.

The choice of whether to consent to a blended voir dire will have an effect on the manner in which evidence is presented. A non-blended voir dire may require the defence to lead evidence to establish the violation. A blended voir dire will require the evidence to be lead by the Crown.

See Also

• Charter Applications