La manière de conduire un voir-dire relève du juge et il n'y a aucune obligation de faire entendre des témoins lors du voir-dire

R. v. Kematch (S.D.) et al., 2010 MBCA 18

Lien vers la décision

43.            I will deal initially with McKay’s argument on the lack of viva voce evidence with respect to the pre-trial motion.  Following oral argument by McKay’s counsel, the panel advised the Crown that it need not address this issue in its submissions.  I am satisfied that there is no merit to this ground of appeal.  The lack of a viva voce voir dire is not, in my view, a basis on which I would set aside what is otherwise a correct decision in law arrived at by the judge.  I know of no authority and none was provided to the court stipulating that before arriving at a decision on what evidence might or might not be admissible, a trial judge must conduct a voir dire with viva voce evidence.  That is a decision to be made by a trial judge on the basis of the issue before him or her and the nature of the case itself.  No party objected to the manner in which the evidentiary issues were being dealt with at the time they were being dealt with and if McKay was not satisfied with how the matter was being conducted, it was incumbent on him to state his position as the matter was being addressed.  Contrary to what he asserts, he has not demonstrated that he has suffered any prejudice or that he received an unfair hearing because of the manner in which evidentiary issues were resolved by the trial judge.