Comment traiter une déclaration qui est l'actus reus d'une infraction

R. v. Rivera, 2011 ONCA 225 (CanLII)

[101] Ordinarily, statements of an accused made to a person in authority are subject to the Crown establishing voluntariness, usually through a voir dire: R. v. Erven, 1978 CanLII 19 (S.C.C.), [1979] 1 S.C.R. 926, at pp. 933-43. However, in Stapleton, at p. 233, this court, after citing the example of a case where the accused was charged with “failing to or refusing to comply with a valid demand made to him by a police officer”, held that “the words of refusal constitute the actus reus of the offence charged.” Accordingly, the court held it was not necessary to establish on a voir dire the voluntariness of the accused’s statement.

[102] In Hanneson, at pp. 471-77, this court reaffirmed that where the statement of an accused forms part of the actus reus of the offence, the voluntariness rule is inapplicable. And, most recently, this court in Ha, at paras. 6-8, applied Hanneson, and held at para. 8 that “the rationale in Hanneson applies equally here where there was a s. 9 breach as well as breaches of s. 10 of the Charter.”

[103] Thus, where the making of a statement constitutes the very actus reus of the offence charged, a voir dire into voluntariness is not required. However, where the Crown seeks to rely on roadside statements of an accused to the police that are made without the right to counsel as evidence of the actus reus, the trial judge may be called upon to decide whether the proffered statements are evidence of this element of the offence before admitting them at the Crown’s behest.