Erven v. The Queen

Erven v. The Queen
Collection
Supreme Court Judgments
Date
1978-12-21
Report
[1979] 1 SCR 926
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves
On appeal from
Nova Scotia
Subjects
Criminal law
Decision Content
SUPREME COURT OF CANADA
Erven v. The Queen, [1979] 1 S.C.R. 926
Date: 1978-12-21
Keith Bruce Erven Appellant;
and
Her Majesty The Queen Respondent.
1978: March 9, 10; 1978: December 21.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, APPEAL DIVISION
Criminal law — Evidence — Rights of the accused — Voir dire — Extent of procedural safeguards neces­sary to have inadmissible statements withheld from the trier of fact.
The appellant was alleged to have been part of a large scale operation to traffic in hashish. The plan was that the hashish was to be cached on the Cape La Have Islands, just off the coast of Nova Scotia, and to be taken from there by helicopter to the mainland for packaging and resale. The appellant was a passenger on one of these flights but there was no direct evidence that he was aware of the nature of the cargo. Subsequent to the flight, appellant and another passenger were ques­tioned by uniformed R.C.M.P. officers and they and others were arrested shortly thereafter. During the time they were in custody they were interviewed by two officers and according to the evidence of one of these officers "as a result of conversation with the accused and with some of the co-accused" they went to a cottage and removed some articles (clothing and toiletries) which they brought to the jail. Some of these were given to the accused "because he requested them". It was clear that the trial judge regarded this evidence as important and he commented that the acceptance of the clothing was unexplained and that the cabin from which the clothes had been taken was where some 1765 1/4 lbs. of cannabis resin had been found. Appellant was con­victed in the County Court Judges Criminal Court, without a jury, on a charge of having in his possession cannabis resin for the purposes of trafficking. The Appeal Division dismissed his subsequent appeal.
The interview when the accused and the other passen­ger were confronted by two uniformed R.C.M.P. officers was admitted into evidence by the judge without a voir dire despite the objection of counsel. Only one of the officers testified and the accused did not. That officer testified that he and his colleague had merely been investigating complaints from a person suspicious of what was going on. The trial judge regarded an affirma­tive response by the appellant to one of the constable's questions as an adoption by him of his companion's false story. Although the exact words were not disclosed the fact of the subsequent conversations regarding the cloth­ing was also admitted without a voir dire again over the objection of counsel.
Held (Martland, Ritchie and Pigeon JJ. dissenting): The appeal should be allowed.
Per Laskin C.J. and Spence, Dickson and Estey JJ.: This appeal affords an opportunity for further clarifica­tion of the question of the admissibility of statements made by an accused to persons in authority. The ques­tion essentially is whether a voir dire is always required in respect of such statements or whether no voir dire is needed if the statement is "obviously volunteered". A voir dire is clearly necessary if the statement in question is made to police during investigation of a crime just as it is necessary for statements made after the accused is in custody, after he has been charged and after a decision to charge him has been reached. The view that a voir dire is unnecessary where the statement is "volun­teered" or obviously volunteered is unsound. Quite apart from doubt as to whether the "voluntariness" test does encourage practical efficiency in the conduct of trials, other interests must be considered viz. the assurance of a full hearing of the evidence of both sides on the issue of voluntariness; the maintenance of the rights of the accused; and the integrity of the functional distinction between the voir dire and the trial itself. There is no justification for engrafting upon the general rule, amply borne out by the authorities, any exceptions, particularly one expressed in such terms as "obviously voluntary" or "volunteered".
Per Beetz and Pratte JJ.: The issue is whether the trial judge erred in admitting into evidence two verbal statements without holding a voir dire which in both instances had been requested by counsel for the defence. The first statement was made to a police officer in the presence of another constable and of another person; the accused was then under surveillance and the police officer did not know that he was investigating an impor­tant criminal operation that was to lead to the arrest of the appellant; shortly after the conversation, upon being instructed to do so, the police officer proceeded to the arrest of the appellant. This first statement was not admissible in evidence unless it was proven to have been made voluntarily [Ibrahim v. The King, [1914] A.C. 599]. Such proof is normally made on a voir dire and a request for a voir dire should not be denied save in rare circumstances which were not present here. However, the failure to hold a voir dire that should have been held is not necessarily fatal since the statement may other-wise have been proven to have been made voluntarily. This is not the case here where there was an almost complete dearth of evidence as to the circumstances in which the statement was made. The statement should therefore not have been allowed. In the light of the evidence, this is not a case where resort should be had to s. 613(1)(b)(iii) of the Criminal Code. As to the second statement, our unanimous decision not to disturb the decision of the trial judge was announced in Court at the hearing.
Per Martland, Ritchie and Pigeon JJ. dissenting: It is established that the burden rests on the Crown to satisfy the trial judge that all statements made by an accused which it seeks to introduce in evidence against him have been freely and voluntarily made. Where, as here, a voir dire is requested, the trial judge should require one to be held. The failure to hold a voir dire in this case did not however occasion any substantial wrong or miscarriage of justice or vitiate the trial as the circumstances were such as to make the voluntary nature of the statements self evident. The sole purpose of a voir dire is to determine whether such a statement was made volun­tarily and the necessity for holding such an inquiry is to be determined by the circumstances under which the statement is made. The only statements which can be challenged as improperly introduced are those made prior to the appellant's arrest. There is however other ample evidence to support the finding of guilt. In any event the case is one in which s. 613(1)(b)(iii) of the Criminal Code should be invoked.
[Fiché v. The Queen, [1971] S.C.R. 23; Ibrahim v. The King, [1914] A.C. 599 (P.C.); Prosko v. The King (1922), 63 S.C.R. 226; Boudreau v. The King, [1949] S.C.R. 262; Comm'nrs. of Customs and Excise v. Harz, [1967] 2 W.L.R. 297; Boulet v. The Queen, [1978] 1 S.C.R. 332; Powell v. The Queen, [1977] 1 S.C.R. 362; R. v. Gauthier, [1977] 1 S.C.R. 441; R. v. Spencer (1973), 6 N.S.R. (2d) 555; R. v. Rushton (1974), 20 C.C.C. (2d) 297 (Ont. C.A.); R. v. Sweezey (1974), 20 C.C.C. (2d) 400 (Ont. C.A.); R. v. Armstrong, [1970] 1 C.C.C. 136 (N.S.S.C., A.D.); R. v. Toulany (1973), 16 C.C.C. (2d) 208 (N.S.S.C., A.D.); Thiffault v. The Queen, [1933] S.C.R. 509; R. v. Baschuk (1931), 56 C.C.C. 208; R. v. Fitton, [1956] S.C.R. 958; R. v. Dietrich, [1970] 3 O.R. 725 (Ont. C.A.), leave to appeal refused [1970] S.C.R. xi; D.P.P. v. Ping Lin, [1976] A.C. 574 referred to.]
APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division[1], dismiss­ing an appeal from conviction, by judge sitting without a jury, on a charge of possession of cannabis resin for the purpose of trafficking contrary to s. 4(2) of the Narcotic Control Act. Appeal allowed, Martland, Ritchie and Pigeon JJ. dissenting.
David F. Walker, Q.C., for the appellant.
E. G. Ewaschuk and R. Fainstein, for the respondent.
The judgment of Laskin C.J. and Spence, Dickson and Estey JJ. was delivered by
DICKSON J.—Not long ago, this Court put an end to the difficulties which had plagued trial judges in attempting to distinguish inculpatory statements from exculpatory statements for the purpose of applying the voir dire rules. The Court held that exculpatory statements made to a person in authority by an accused would be subject on voir dire to the same requirements as inculpatory statements: Fiché v. The Queen[2]. The present appeal affords an opportunity for further clarifica­tion and rationalization in determining the admis­sibility of statements made by an accused to persons in authority.
The Court is called upon to decide the extent of the procedural safeguards necessary to support the substantive rights of the accused to have inadmis­sible statements withheld from consideration by the trier of fact. The question essentially is wheth­er a voir dire is always required in respect of statements made by an accused which the prosecu­tion seeks to introduce in evidence, or whether, as the Crown contends, no voir dire is needed if the statement is "obviously volunteered." The issue has not previously arisen for decision in this Court, but there are many dicta which support the con­clusion that a voir dire is always needed. Many of the cases appear simply to assume the necessity of a voir dire as consistent with the basic principles governing the admission of statements made in response to questions from police officers or from other persons in authority. The Principle
The classic formulation of the applicable princi­ple is that of Lord Sumner in Ibrahim v. The King[3], at pp. 609-10:
It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn [sic] by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale.
That statement of the rule has been adopted in decisions of this Court: see Prosko v. The King[4], Boudreau v. The King[5], Fiché v. The Queen, supra.
The rule in England is expressed in 11 Hals. (4th ed.), para. 410, in these words (footnotes omitted):
It is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in author­ity, or by oppression. In order to render such extra-judi­cial admissions or confessions admissible the prosecution must prove affirmatively to the satisfaction of the trial judge that they were not induced by any promise of favour or advantage, or by the use of fear, threats or pressure by a person in authority. It is not sufficient for the prosecution to show that the person in authority had not intended to extract a confession or that there had been no impropriety on his part; what is necessary is to show, as a matter of fact, that the statement in question had not been obtained in consequence of something said or done by him which amounted to an express or implicit threat or promise to the defendant.
The first sentence of the foregoing passage derives from the Judges' Rules published in 1964 (Home Office Circular No. 31/1964, p. 5, reprinted in "Practice Note," [1964] 1 W.L.R. 152 at p. 153). It is said to be "overriding and applicable in all cases." The Judges' Rules are, of course, merely administrative instructions which do not have the force of law in this country nor, indeed, in England, but it is of importance that the sentence to which I have referred was adopted as a correct statement of the law by Lord Reid, speaking for a unanimous House of Lords in Commissioners of Customs and Excise v. Harz[6].
I think it can now be taken to be clearly estab­lished in Canada that no statement made out of court by an accused to a person in authority can be admitted into evidence against him unless the prosecution shows, to the satisfaction of the trial judge, that the statement was made freely and voluntarily: Boulet v. The Queen[7], Powell v. The Queen[8], Fiché v. The Queen, supra.
Procedure on Voir Dire
Accepting that a burden rests upon the Crown to show affirmatively that the statement sought to be introduced was voluntary, how does the Crown go about discharging that burden? In my experi­ence, the usual procedure has been for the Crown, before adverting to the statement, to request the trial judge to retire the jury. In the absence of the jury the Crown calls witnesses, normally the police officers to whom the statement was made or given, and any other police officers who might have been in a position to threaten or to offer hope of advan­tage to the accused. These witnesses testify affir­matively to statements made and to the absence of threat or promise. They are cross-examined. The defence then calls its witnesses, including frequent­ly the accused, and they are cross-examined. Then follows argument of counsel, and the ruling of the trial judge as to whether the statement is voluntary and, therefore, admissible. There is, in every sense, a trial within a trial. Once admitted, the statement goes to the jury who must then pass upon whether the statement was, in fact, made and the weight, if any, to be given to it.
Function of the Voir Dire
It is axiomatic that the voir dire and the trial itself have distinct functions. The function of the voir dire is to determine admissibility of evidence. The function of the trial is to determine the merits of the case on the basis of admissible evidence. The voir dire is conducted in the absence of the jury, who should not be informed, at any time, of the subject matter of the voir dire. The accused may testify on the voir dire while remaining silent during the trial. Evidence on the voir dire cannot be used in the trial itself. The fundamental nature of this functional separation was recently reaf­firmed by this Court in The Queen v. Gauthier[9]. Mr. Justice Pigeon, speaking for the majority, stated that the procedure is similar whether or not the trial is before a jury, and he emphasized the necessity for a voir dire in both cases, at p. 450:
.. For this reason I fail to see how it could be decided that in a trial without a jury, a voir dire is unnecessary, and statements made by the accused may be admitted in evidence without a preliminary decision as to whether or not they were freely and voluntarily made. Furthermore, no one appears to suggest that in a trial without a jury a voir dire is unnecessary. But if this is so, how can it be maintained that the rules are different? [emphasis added]
In a later passage, Pigeon J. also expressed his view that the holding of a voir dire is an essential requirement (at p. 451):
In deciding as it did in the case at bar, the Court allowed the accused to testify on the voir dire on a portion of the case that suited his purposes, while avoid­ing cross-examination on the rest and preventing the prosecution from referring to it. This can hardly be described as formalism; it touches one of the most basic aspects of the administration of justice, namely the rule that any judgment must be based exclusively on the evidence presented at the trial. If it were to be held that in a trial without a jury it is not essential to hold a voir dire, and the judge may admit evidence of statements made by the accused, provided he rules on their admissi­bility at the end of the trial, I would not agree, but I would consider it less objectionable than a voir dire that does not respect the basic rule, namely that it is a trial within a trial, and accordingly the evidence produced therein is to be used on the voir dire only, even though the same judge presides at the voir dire and decides on the merits. [emphasis added]
The courts have formulated strict standards gov­erning the admissibility of statements in order to safeguard carefully the rights of an accused person. The principles focus on the jury trial, but they apply equally to trial by a judge alone. The Court of Appeal Decision
It would seem to follow, as a matter of simple logic, that if the Crown fails to establish that the statement was not obtained by fear of prejudice or hope of advantage held out by a person in author­ity, it has failed to discharge the burden upon the Crown and the statement should be ruled inad­missible. In the case at bar, however, the trial judge, sitting without a jury, notwithstanding a request of defence counsel, refused to hold a voir dire in respect of two statements made by the appellant Erven to police officers. In upholding the conviction, the Appeal Division of the Supreme Court of Nova Scotia adopted what had been said earlier by Macdonald J.A. of that Court (16 N.S.R. (2d) 422-427) in respect of a statement given to the police by one Mayer, a co-accused of Erven, when Mayer's conviction was under appeal. The points taken by Mr. Justice Macdonald were: (i) when questioned by the police, the accused was not under arrest, nor even under the threat of arrest; (ii) in the opinion of Mr. Justice Mac­donald, the conversation by the accused with the police officer was entirely voluntary and "even if a voir dire had been held such would surely have been found to have been made voluntarily and hence admissible in evidence." Mr. Justice Mac­donald quoted from an earlier judgment of the Appeal Division (R. v. Spencer[10]) in which the view was taken that the holding of a voir dire would have been an "unnecessary farce" and the law does not require that a judge hold a "wholly useless voir dire" when the result would have been the same if the magistrate had held a voir dire.
Two issues arise from the Court of Appeal decision, one substantive as to the scope of the general rule, and one procedural as to how the general rule is to be put into practice in the course of the trial. I will deal with the substantive issue first.
Investigatory Stage
I cannot accept the view that a voir dire is unnecessary (or required only where special cir­cumstances cast doubt on voluntariness) if the statement in question is made to police during investigation of a crime, rather than after the accused is in custody, or after he has been charged, or a decision to charge him has been reached, see, e.g.: R. v. Rushton[11]; R. v. Sweezey[12]; R. v. Spen­cer, supra; R. v. Armstrong[13]. Such statements of the accused enjoy no exemption from the requirement of proof of voluntariness before admission into evidence. As Martin J.A. stated, in words I would adopt, in R. v. Sweezey, at p. 413:
I conclude that the rule with respect to proof of volunta­riness is not confined to statements made by a person in custody or charged or about to be charged with an offence. I am consequently of the view that a statement made by a person to a police officer conducting an investigation with respect to a suspected offence must be shown to have been made voluntarily before it is admis­sible against that person in a criminal trial in which he is an accused. The words "statement by an accused" used by Lord Sumner in Ibrahim v. The King, [1914] A.C. 599, in my view, refer to a statement made by a person who is an accused in a criminal trial when the statement is sought to be introduced against him rather than to the fact that he was an accused at the time he made the statement.
As Idington J. stated in the decision of this Court in Prosko v. The King, supra, at p. 234:
It is the inducement exercised by the officers in charge that is to be guarded against and not the acciden­tal circumstances of an arrest and the bearing thereof on the mind of one accused that has to be guarded against.
The voluntariness rule is one of broad and gene­ral application. It applies with as much force to statements made during investigation as to state­ments made after the accused person is in custody. The procedure does not vary depending upon the stage at which the statement is made. Such a distinction would be fraught with difficulties in its application. Is the test subjective or objective? Where is the line to be drawn when investigation, discovery, custody, and arrest are a rapid conti­nuous series of events? Practical considerations provide an additional reason which dictates the rejection of this distinction. The opportunities for abuse by delaying arrest are obvious. I should note in passing that even cases supporting a special rule for statements made at the investigative stage generally require a voir dire where counsel expressly contests the admissibility of the state­ments, as counsel did in the present case: see R. v. Sweezey, supra, at p. 417.
"Volunteered"
Nor can I accede to the second proposition which found favour with the Appeal Division, namely, that a voir dire is unnecessary where a statement is "obviously voluntary" or "volun­teered", or where the voluntariness of a statement is "apparent from the circumstances under which it was made", or when it can be "abundantly established in some other way", absent a voir dire: see R. v. Spencer, supra; R. v. Sweezey, supra; R. v. Toulany[14].
No doubt the "obviously voluntary" test derives from a desire to encourage practical efficiency in the conduct of trials. On that point alone, there are grounds for some doubt as to the efficacy of the test. However, there are also other interests which must be weighed in the balance along with effi­ciency—(i) the assurance of a full hearing of the evidence of both sides on the issue of voluntariness; (ii) the maintenance of the rights of the accused; and (iii) the integrity of the functional distinction between the voir dire and the trial itself. It is in the light of each of these interests, as well as that of trial economy, that the proposed test for a voir dire ought to be measured.
Hearing All the Evidence
In my respectful opinion, no judge at trial nor appellate judge should decide any issue on hearing only one side of the matter. It is trite in civil law that anyone having the duty to decide anything must hear both sides before reaching a decision. The obligation is not any less in criminal law. Unusual prescience would be required to determine that a statement is obviously voluntary before the accused has had a chance to call wit­nesses, testify, and present argument, and where all the persons involved have not been called as required by Thiffault v. The Queen[15].
What would occur if a statement could be admitted without a voir dire where the context did not cast doubt on its voluntariness? The testimony of the Crown witness outlining the circumstances surrounding the statement might give no indica­tion of any involuntariness. Defence witnesses might be prepared to give contrary testimony which; might be believed over that of the Crown witness. The defence witnesses, however, could not be called at this point, as they can only be called after the Crown has concluded its case. Thus no evidence up to this point would have cast any doubt on the voluntariness of the statement, and it would be admitted into evidence for consideration by the jury. Even if the statement were later excluded, the harm would be done: see R. v. Armstrong, supra. As Dennistoun J.A., speaking for the Manitoba Court of Appeal in R. v. Baschuk[16], said at p. 209:
Once the confession was read to the jury it was hopeless for the accused to call witnesses to show it was not a voluntary statement. The damage was done and could not be undone.
All surrounding circumstances must be exam­ined on a voir dire. Although the main point of decision in Boudreau v. The King, supra, was that the absence of a warning would not bind the hands of the court so as to compel it to rule out a statement, Kerwin J. said, at p. 267: "All the surrounding circumstances must be investigated and, if upon their review the Court is not satisfied of the voluntary nature of the admission, the statement will be rejected." The last words of the last defence witness to testify in respect of the statement may establish that it was involuntary.
Rights of the Accused
An accused may testify on a voir dire without prejudice to his privilege not to take the stand before the jury. He may be examined and cross-examined with regard to the statement allegedly given by him to one in authority, but not upon his innocence or guilt.
It is a most important right of the accused to call witnesses and present argument separately on the issue of the admissibility of a statement direct­ly after the Crown's evidence on this matter has been adduced. This right would be totally lost if a statement of the accused could be admitted without a voir dire as part of the Crown's evidence because nothing in that evidence cast doubt on its voluntariness. An accused has the right to testify in the absence of the jury on the issue of voluntari­ness alone. On the voir dire he is permitted to testify on the issue of the voluntary nature of his statement without prejudice to his right not to testify on the main issue. The testimony of the accused may be the only evidence which indicates involuntariness. If a voir dire is not held, and the accused exercises his right not to testify on the main issue, the evidence negating voluntariness will never be revealed to the trial court nor to an appellate court. If the judge denies a voir dire, the accused may have to become a witness on the issue of whether the statement is voluntary, but he thereby is improperly exposed to Crown examina­tion on the main issue of guilt or innocence. The effect of limiting the voir dire to cases where there is evidence of involuntariness is to obligate the accused to adduce such evidence, thereby relieving the Crown of a burden which properly rests on the Crown and placing an unwarranted evidential burden upon the accused.
The Distinction between Voir Dire and Trial
The essential separation between proceedings on a voir dire and those in the trial itself would be undermined if a voir dire were held only where doubt was cast on the voluntariness of a statement by evidence given in the trial itself. As Kaufman says in The Admissibility of Confessions (2nd ed.), at p. 51, "... to say that a statement may have been admissible without a voir dire because it was voluntary is putting the cart before the horse." The importance of keeping all evidence of a statement from the jury unless the statement is admitted in evidence is expressed by Kaufman in the following passage (at p. 52):
Despite these last two judgments [John v. The Queen, [1971] S.C.R. 781 and R. v. Bohack (1971), 6 C.C.C.(2d) 457 (Ont. C.A.)], it would still appear that a voir dire must be held, and where the Crown attempts to tender a statement without first requesting a trial within the trial, the Court must order it proprio motu. This may create a problem where the jury was made aware of the existence of a statement. In that case, the Court should proceed with the voir dire, but if the statement is rejected, a mistrial may be in order.
Can it ever be said that an answer given in response to questions asked by a police officer in circumstances of compulsive authority, as in the case at bar, are "volunteered?" One immediate objection to the introduction of an exception relat­ed to "obviously voluntary" or "volunteered" is the likelihood of confusing the word (i) "voluntary", which has a well-recognized and technical conno­tation when used in relation to statements given by accused persons to those in authority (variously expressed, but generally taken to mean free of fear of prejudice or hope of advantage) with the word (ii) "volunteered", which is a word of common parlance implying spontaneity. Yet, as pointed out in "Developments in the Law: Confessions" (1966), 79 Harv. L. Rev. 935, 1103, the Canadian concept of voluntariness, unlike the one prevailing in Scotland, does not imply spontaneity. Rand J. made this clear in R. v. Fitton[17], at pp. 962-3, where he said: "The Chief Justice of Ontario, speaking for the majority of the Court of Appeal, has treated the expression 'freely and voluntarily' used in Boudreau v. The King, as if it connoted only a spontaneous statement, one unrelated to anything as cause or occasion in the conduct of the police officers; but with the greatest respect that is an erroneous interpretation of what was there said."
Statements should not slip in without a voir dire under the pretext that they form part of the res gestae: see R. v. Spencer, supra; R. v. Toulany, supra. The rules regarding res gestae are substan­tive rules regarding hearsay and the admissibility of evidence. They do not affect the procedure by which decisions are to be made regarding admissi­bility of statements made to persons in authority. Statements constituting part of the res gestae are admissible as exceptions to the general rule excluding hearsay. As with all statements by an accused, they are subject to the general requirement of voluntariness. In order to determine whether they are voluntary, as well as whether they are, in fact, part of the res gestae and otherwise admissible, such statements must be con­sidered by the judge on a voir dire in the absence of the jury.
The Efficient Administration of Criminal Justice
I suspect that in a trial by judge sitting without a jury there is a tendency, in what is thought to be the interests of trial economy, to lose sight of the distinction between voir dire and trial. The dis­tinction is just as important when the judge is sitting alone (and assumes also the jury function of trier of fact) as when he is presiding at a trial with jury, and the same rules apply so far as the voir dire is concerned: R. v. Gauthier, supra. The distinction between a "formal" and an "informal" voir dire was firmly rejected by this Court in Powell, at p. 368, where Mr. Justice de Grandpré said:
I note that for the second time the learned appeal judge uses the expression "formal voir dire". I assume that this is a slip of the pen because no voir dire at all was held and, in any event, I cannot see any difference between an informal voir dire and a formal one.
It is sometimes urged that the holding of a voir dire results in delay and, therefore, a loss in trial economy. I have some doubt whether trial econo­my would be achieved by recognition of an excep­tion, expressed in terms of "volunteered" or "obvi­ously voluntary", to the general requirement of a voir dire. The normal response, if a voir dire were denied, would be an appeal, with consequent cost in time and money. Accepting, arguendo, that a voir dire entails delay in the judicial process, it does not necessarily follow that efficient adminis­tration of justice should be sought at the expense of the legitimate rights of an accused.
It must be sound policy to have rules of practice which are clear and uncomplicated. This is particulary true in the field of criminal law. Rules should be such as to be easily applied in the great variety of cases and circumstances which daily come before the courts. In my respectful view, a rule requiring a voir dire only after there is some evidence suggesting involuntariness is neither clear nor easily applied.
If a statement is, in fact, "volunteered", this means merely that voluntariness is easier to estab­lish than in other cases. It does not mean there is a different procedure to determine voluntariness. The voir dire in such a case may take only a few minutes. On the other hand, where the initial impression is that the statement was voluntary, other evidence on the voir dire may point to quite the opposite conclusion. Either way, the rights of the accused will be protected and the efficient administration of justice enhanced by the holding of a voir dire.
Further, I would not want to say that counsel may not expressly waive the holding of a voir dire in a proper case where all precautions have been taken: see Powell v. The Queen, supra, at p. 368; R. v. Sweezey, supra, at p. 416; R. v. Dietrich[18], at pp. 734-7 (Ont. C.A.) (leave to appeal to this Court dismissed [1970] S.C.R. xi). I do not express any concluded view on the matter of waiver, however, as there is no suggestion that defence counsel waived voir dire in the case at bar.
The Cases
Generally speaking, the authorities appear to be against any exception to the general rule requiring a voir dire. In the recent case of Boulet v. The Queen, supra, it was affirmed that previous state­ments made under oath by the accused during a judicial proceeding are admissible without proof of voluntariness, and that therefore no voir dire is required in respect of such statements. The Court, speaking through Mr. Justice Beetz, contrasted the situation where a statement is made out of court to a person in authority and clearly envisaged that the admissibility of such a statement would always be decided in the absence of the jury, on a voir dire, (at p. 343):
The courts have long made a distinction between statements made by the accused out of court to persons in authority and those which are made in a judicial proceeding. The first are admitted in evidence once the presiding judge had decided alone, without the jury, after a voir dire, that they were freely and voluntarily made, the onus of proving these conditions being on the prosecution: R. v. Warickshall; Rex v. Baldry; Ibrahim v. Rex; Fiché v. The Queen; Powell v. The Queen. [emphasis added]
While the decision in Powell v. The Queen, was carefully restricted to what was necessary to decide the outcome of that case, it nevertheless established a stringency in the need for a voir dire which is consistent only with its requirement in all cases where voluntariness must be established. In his reasons, Mr. Justice de Grandpré quoted the Court of Appeal's view of the matter, at p. 367:
In our view, it would have been preferable for the trial judge to have conducted a formal voir dire, then ruling on the voluntariness of the statement [ ... ]; but it is perfectly plain from his reasons for judgment that he directed himself to that question and considered the statement to be voluntary.
and then de Grandpré J. stated.
I am unable to accede to the proposition that if a trial judge directs himself to the question of the voluntariness of a statement and is satisfied on the whole of the evidence of the guilt of the accused, there is no need for a voir dire.
In Powell this Court also expressly rejected the contention that a voir dire was only needed where counsel for the accused objected to the admission of the evidence. Mr. Justice de Grandpré stated, at p. 368:
The Crown further submits that, the evidence of Constable Fisher having been received without any objection by counsel for the accused, this silence amounts to an admission that the statement was volun­tary. Although the point was mentioned by Hall J.A., it was not dealt with in the Court of Appeal. For my part, I do not believe that this submission is well founded. While I might be ready to accept in a proper case that counsel for an accused may well waive the holding of a voir dire, I see a considerable difference between an expressed waiver surrounded by all the precautions indicating that the question has been examined in depth and mere silence on counsel's part. The heavy onus resting on the Crown certainly cannot be displaced in such an informal fashion.
In a comment on Powell, (1976), 18 Crim. L.Q. 404, Professor S. I. Bushnell noted that the case dealt with four questions:
(1) Must all statements made by an accused to a person in authority pass the test of voluntariness?
(2) Need there be a voir dire for those confessions to which the rule applies?
(3) Is there any obligation on the defence to object to the voluntariness of a confession in order to require a voir dire?
(4) In a case in which there should have been a voir dire, and none was held, can s. 613(1)(b) (iii) of the Criminal Code be applied?
In discussing the second question, he stated, at p. 411:
(2) Need there be a voir dire in all cases?
The answer, following Powell, must also be a yes, except when there has been an express waiver. Spencer had called it a wise precaution to have a voir dire until the limits of Fiché v. The Queen were clarified. The clarification has now occurred in Powell. Sweezey and Rushton must be considered overturned on this point.
In a more recent article in (1978), 20 Crim. L.Q. 312, Professor Ratushny said, at p. 324:
In Powell v. The Queen the court clearly established that all statements made to a person in authority must pass the test of voluntariness on a voir dire in the absence of an express waiver on the part of the accused. Moreover, there is no obligation on the part of defence counsel to object where the necessity for such a voir dire has been overlooked.
I do not think the Crown can take any comfort from John v. The Queen, supra. In John, the point here in issue was expressly not decided because, in any event, there was sufficient admissible evidence of the accused's guilt to apply the provisions of s. 529(1)(b)(iii) (now s. 613(1)(b)(iii)). In my opinion, it is always necessary to hold a voir dire to determine the voluntariness of a statement made by an accused out of court to a person in authority. Only in this way can fairness to the accused be assured. To require a voir dire only if doubt is cast on the voluntariness of a statement by the circumstances under which it was made, as determined from evidence given in the trial proper, would not only shift a burden to the accused but also, in other respects, cause him significant preju­dice. One must be realistic with the jury process. If the statement is subsequently ruled inadmissible, the jury will, nevertheless, at least be left with the knowledge that a statement was made by the accused which has now been excluded. This is bound to arouse suspicion as to its content. If evidence of the context of the statement is allowed to be given for some time before anything casts doubt on its voluntariness, the jury will know something, and perhaps much, of its content. Prejudice will surely result. Such a limited requirement would destroy the fundamental distinction between the function of the voir dire, which is to determine voluntariness, and that of the trial proper, which is to determine guilt.
I can see no justification for engrafting upon the general rule, which is remarkably free of qualifica­tions, any exception and, particularly, one expressed in such terms as "obviously voluntary" or "volunteered." Attempts in the past to water down the rule have not met with success and, in my opinion, the present attempt should also be repelled.
The Facts
I turn now to the evidence in the case. I do not think the evidence is of great importance because it is not the task of this Court nor, with respect, the task of any appellate court to make an independent judgment as to whether a particular statement is voluntary. If the true rule is, as I conceive it to be, that the voluntary nature of a statement given to a person in authority can only be determined in a voir dire, then it is undisputed that the judge at trial failed to hold a voir dire, though requested to do so. I do not think it can be seriously contended that the statements admitted in evidence without a voi