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18 Although the accused did not testify at the voir dire, he did take the stand at trial. The accused testified that, at the time of his arrest, he had no longer been living at suite 16 and that he had not been there since January 26. In essence, he was saying that he had no privacy interest in suite 16. This is contrary to the Crown evidence presented during the voir dire, where police officers testified that the accused had told them that, on January 31, he was still in the process of moving from suite 16 to suite 12.
19 More importantly, this is contrary to the position taken by the accused during the voir dire. The accused argued on the voir dire that his s. 8 Charter right had been breached when the police entered suite 16 without a warrant. To prove a breach of his s. 8 right, the accused must first establish that he had a reasonable expectation of privacy in suite 16. Indeed, that was his counsel’s submission on the voir dire, relying upon the evidence of the accused that was given through the police testimony.
20 However, at the trial hearing, this important evidentiary discrepancy was not raised by counsel or by the judge. Nevertheless, this contradiction is troublesome. The concern and unease are clear: an accused should not be able to successfully argue a position at a voir dire based upon evidence of, or from him, and then entirely disavow or attempt to disavow that position at trial based upon a change in his evidence. Here, the position he took regarding a privacy interest at the voir dire allowed him to obtain a favourable Charter breach ruling. How can he then be allowed to withdraw from his earlier position and argue that he had no privacy interest in suite 16 and thus cannot be linked to the shotgun found in that suite? The maxim quod approbo non reprobo comes to mind: one cannot approbate and reprobate at the same time.
21 In the end, the accused’s evidence at trial no longer supported the position advanced for the accused in the voir dire or the judge’s voir dire finding that the accused “had a reasonable expectation of privacy in both suites 12 and 16 (at para. 26).” Such a situation raises possibilities of mistrial when the matter is heard before a jury and puts a trial judge in a difficult, if not impossible, position with respect to the evidence before the court. It could also raise difficult ethical questions which were not fully before us and upon which we reach no conclusion (see for example, The Canadian Bar Association, CBA Code of Professional Conduct, Ottawa: CBA, 2009, ch. IX, commentary 11 which states that defence counsel must not “call any evidence that, by reason of the admissions [made by the accused], the lawyer believes to be false” and The Law Society of Manitoba, Code of Professional Conduct, Winnipeg: Law Society of Manitoba, 2010, ch. 4, Rule 4.01(1) and the commentary on the Duty of Defence Counsel).
22 What is a judge to do when the evidence at trial no longer buttresses an earlier voir dire ruling? To begin with, a judge is not functus officio once the voir dire has ended (see R. v. Hunter (1980), 58 C.C.C. (2d) 190 (Ont. C.A.)). The test for when a judge may revisit a previous ruling at trial was explained by Sopinka J. in R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707, as follows (at paras. 29-30):
A court has a limited power to reconsider and vary its judgment disposing of the case as long as the court is not functus. The court continues to be seized of the case and is not functus until the formal judgment has been drawn up and entered. See Oley v. City of Fredericton (1983), 1983 CanLII 2822 (NB CA), 50 N.B.R. (2d) 196 (C.A.). With respect to orders made during trial relating to the conduct of the trial, the approach is less formalistic and more flexible. These orders generally do not result in a formal order being drawn up and the circumstances under which they may be varied or set aside are also less rigid. The ease with which such an order may be varied or set aside will depend on the importance of the order and the nature of the rule of law pursuant to which the order is made. For instance, if the order is a discretionary order pursuant to a common law rule, the precondition to its variation or revocation will be less formal. On the other hand, an order made under the authority of statute will attract more stringent conditions before it can be varied or revoked. This will apply with greater force when the initial making of the order is mandatory.
As a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the time the order was made have materially changed. In order to be material, the change must relate to a matter that justified the making of the order in the first place. ….
23 In circumstances where the evidence at trial departs significantly from that of the voir dire and where it relates to a matter that justified the voir dire ruling, a court may, on its own motion, reopen the voir dire and decide the matter afresh (see R. v. Smith(1986), 1986 CanLII 103 (MB CA), 38 Man.R. (2d) 184 (C.A.); Adams at paras. 29-30; R. v. Calder, 1996 CanLII 232 (SCC), [1996] 1 S.C.R. 660 at para. 21; and R. v. Underwood, 1998 CanLII 839 (SCC), [1998] 1 S.C.R. 77 at para. 13). When the contradictory evidence does not affect the voir dire ruling, the judge should note the inconsistency and factor it in when assessing the witness’s credibility.
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