Voir Dire
A voir dire — sometimes called a "trial within a trial" — is a procedural hearing within a criminal trial used to determine the admissibility of specific evidence or to resolve preliminary legal issues. The judge hears evidence and submissions on the specific question, makes a ruling, and the trial then resumes. Voir dires are essential to managing Charter motions, the admissibility of statements, expert evidence qualifications, hearsay applications, and other discrete evidentiary issues.
Common types of voir dire
Voir dires are frequently held to determine: (1) Voluntariness of statements — under the common-law confessions rule, statements to persons in authority are admissible only if proven voluntary beyond a reasonable doubt; the Crown bears the burden on a separate voluntariness voir dire. (2) Charter motions — section 8, 9, 10, and 11 challenges are typically heard on voir dires before the main trial evidence is led on contested issues. (3) Hearsay admissibility — applications under the principled exception, K.G.B. statements, and other hearsay routes. (4) Expert qualifications — the court must determine whether a proposed expert meets the threshold under R v Mohan and R v White Burgess. (5) Section 276 applications in sexual offence cases — whether evidence of the complainant's other sexual activity is admissible.
Procedure
On a voir dire, the party seeking admission of the evidence (usually the Crown for statements, the defence for some applications) calls evidence — witnesses, documents, expert opinions. The other side cross-examines and may call its own evidence. Both sides make submissions. The judge rules, often with brief reasons. The voir dire ruling determines what the trier of fact will hear in the substantive case.
Jury trials
In a jury trial, voir dires are held in the absence of the jury — the jury never hears the evidence unless it is ultimately ruled admissible. The judge alone hears the voir dire and makes the ruling. If the evidence is excluded, the jury never knows it existed; if admitted, it is led in the regular trial.
Strategic role
Voir dires are often the decisive moments of a criminal trial. A successful Charter voir dire that excludes a key statement or seized item can end the prosecution. A failed voir dire can foreclose major defence avenues. Preparation for voir dires is intensive — counsel must master the relevant legal framework, the factual record, and the cross-examination of officers or other witnesses central to the application.
Voir dire findings
Voir dire findings are typically binding for the rest of the trial but do not pre-determine the ultimate verdict. A statement found voluntary, for example, can still be argued at trial as unreliable or as not supporting the Crown's theory. Mass Tsang's criminal lawyers treat voir dires as high-stakes mini-trials within the larger proceeding.
Related glossary terms
