"What is a voir dire?" An adjuster called me recently to ask this question.

A voir dire could be described as "a trial within a trial". In a civil case a voir dire is generally held for the following reasons:

1. to determine the admissibility of disputed evidence;

2. to determine the competency of a juror or witness;

3. to hear an application by counsel for one of the parties, to have a witness declared hostile; or

4.  to determine some other specific issue relating to the trial, such as the qualifications of an expert witness.

A voir dire can be a relatively brief, uncomplicated matter, or it can be a more lengthy complicated hearing lasting several days or even weeks. Evidence may be presented; expert and lay witnesses may be called and cross-examined.

During the voir dire the judge must address the objections which may be raised by any of the parties concerning the issue in question.

When a trial is by judge and jury, the judge is the trier of law and the jury is the trier of fact. Consequently, if a voir dire is being held to test the admissibility of evidence, the voir dire is held in the absence of the jury so that if the evidence is ruled inadmissible, the jury has not heard the evidence. Once the voir dire has been completed, the jury is recalled to the court room and the evidence (if it has been ruled admissible) is presented on the record.

In cases involving trial by judge alone, the judge acts as both the trier of law and the trier of fact, and therefore it is impossible to keep the judge, as the trier of fact, from hearing the evidence if it is ruled inadmissible. Where this situation arises, however, the judge is required to completely disregard the evidence.

The voir dire is the law's practical answer to the reality that it is necessary for the court to hear or see the evidence, or the witness, before a ruling on admissibility, competency or hostility can be made.

An example of a civil case in which a voir dire was held is McMahon v. Township of Harvey¹, a 1991 decision of the Ontario Court (General Division). In that case the Plaintiff sought damages for injuries sustained in a motor vehicle accident. During the course of trial a question arose as to the admissibility of a photograph taken after the accident, of the road in the vicinity where the accident occurred. The Plaintiff wanted the photograph in evidence to illustrate changes which had been made by the Defendant Township to improve road conditions since the accident. The Township objected. Commenting on the necessity for a voir dire, the trial judge stated as follows:

"I think to make rulings in advance without really knowing the specific evidence, the admissibility of which is challenged, is not a very sound way for a judge to proceed, generally speaking."²

After exploring the matter on a voir dire, the judge held the photograph was inadmissible.

The British Columbia Court of Appeal held in 1992 in Anderson v. District of Maple Ridge³, that when a party challenges the admissibility of proposed evidence in a civil trial, it is mandatory for the trial judge to hold a voir dire during which the actual evidence is heard.

In that case the negligence alleged against the Defendant involved the location of a stop sign and the nature of road markings at an intersection. The Plaintiff had sustained serious, permanent injuries when he failed to obey a stop sign and his vehicle collided with a truck. Several months after the accident the municipality moved the stop sign closer to the intersection.

At trial the judge refused to admit any evidence relating to the relocation of the sign or the consequences of that relocation. A local resident testified at trial that before the stop sign was moved, he had seen several accidents at the intersection every year. Had he been allowed to do so, this witness would also have testified that several months after the Plaintiffs accident the stop sign was moved and that since that time there had been no further accidents; however the Defendant objected to this evidence and the trial judge, without holding a voir dire, ruled the evidence inadmissible. Because the trial judge did not hold a voir dire he did not hear the actual evidence of the witness.

The Plaintiff’s action against the municipality was dismissed, and the Plaintiff appealed. The Court of Appeal was very critical of the trial judge for failing to hold a voir dire to determine the admissibility of the evidence. Wood, J.A., for the Court of Appeal, stated:

"The proper way for the trial judge to have dealt with this issue would have been for him to have held a voir dire during which the actual evidence of the witness could have been heard. Had that been done the trial judge could have dealt with the matter in other than a hypothetical manner, and this court would not now be left to conjecture over either the nature of the evidence or its true significance."⁴

The Court of Appeal canvassed the proposed evidence and the authorities on the issue, and concluded that the evidence was relevant and that the trial judge had erred in excluding the evidence at trial. Wood J. A., further stated as follows:

"... I find it impossible to conclude that the verdict of the jury would necessarily have been the same (at trial) if the evidence in question had been admitted ... it would not be proper for me to speculate on what effect that evidence might have had on the deliberations of the jury ... this is not a case where I can say with certainty that a properly instructed jury acting reasonably would necessarily have reached the same result in the face of such evidence."⁵

As a result, the Court of Appeal set aside the trial judgment and ordered a new trial.

Ball v. Vincent ⁶, is a 1993 decision of the Ontario Court (General Division) in which the trial judge held a voir dire to determine the admissibility of surveillance videotapes taken of the Plaintiff. The Plaintiff had been injured in a motor vehicle accident. The Plaintiff's counsel objected to the admissibility of the videotapes on a number of grounds and as a result, the judge held a voir dire. The voir dire lasted approximately two days, during which time the tapes were viewed and the private investigators who took the videotapes testified under oath.

The judge noted that four criteria must be met if videotapes are to be entered into evidence:

1.  the tapes must accurately represent the facts;

The trial judge used the voir dire to satisfy himself on all four criteria. He noted that the two private investigators who took the videos were available and testified under oath, verifying what was depicted on the tapes. There was no suggestion that the tapes had been edited or altered in any way, and it was clear from the evidence of the private investigators on the voir dire, that the tapes accurately depicted the events recorded. During the voir dire the trial judge addressed the objections which had been raised by Plaintiff's counsel concerning the admissibility of the videotapes. These objections were as follows:

The trial judge addressed each of these objections during the voir dire, answering each as follows:

In conclusion, the trial judge expressed the view that the videos were relevant to the core issue in the case - i.e. the injuries sustained by the Plaintiff, and in particular, the degree and nature of the Plaintiff's incapacity as a result of those injuries - and having answered all the Plaintiffs objections, the trial judge concluded that the videotapes would be admitted into evidence.

Hedley v. Air Canada⁷, a1994 decision of the Ontario Court (General Division), related to the purchase by Air Canada of Gelco Express Limited. Two civil actions and a criminal prosecution arose out of this transaction. In the first civil action, Air Canada alleged fraud and misrepresentation against two former officers of Gelco Express, and the criminal prosecution arose out of the same allegations against three officers of Gelco. Air Canada alleged that Gelco and the accused officers defrauded Air Canada by altering financial statements and computer tapes, thereby inflating the accounts receivable figures on Gelco's financial statements by approximately $10 million.

At the outset of the criminal trial counsel for the accused officers of Gelco moved for a stay of proceedings, alleging an abuse of process on the ground that the Crown had failed to make full disclosure of all relevant information and documents, and had thereby infringed the accuseds' right to make full answer and defence as protected by section 7 of the Charter and by the Criminal Code.

A voir dire was held on the issue. The voir dire lasted twenty-two days, at the conclusion of which the trial judge stayed the criminal proceedings on the ground that the Crown had indeed failed to make full disclosure to the accuseds.

It is interesting to note that the stay of the criminal proceedings resulted in the accuseds suing Air Canada, Air Canada's solicitors and accountants, and the RCMP, claiming damages for malicious prosecution, negligent prosecution, abuse of process, conspiracy, etc. As a result of a voir dire that action was stayed pending disposition of Air Canada's action against the accuseds; the Court was of the view that if Air Canada was successful in proving fraud against the accuseds, then the latters' action could not succeed.

It is hoped that this article has shed some light on the mysteries of the voir dire.