R v Wanihadie, 2021 ABCA 173
[8] On appeal, Mr Wanihadie does not contest the admissibility of the videotape itself. His complaint is tied to the inherent unfairness in the trial judge’s failure to follow the procedure set out by the Supreme Court in Leaney. Specifically, he urges this Court to find that the failure to hold a voir dire in respect of either corrections officer’s evidence was a fatal error, notwithstanding that one was never requested.
[9] In Leaney, McLachlin J, as she then was, writing for the majority, concluded that the “judge erred in not determining as a preliminary matter the qualification of [the witness] before receiving his evidence...”: Leaney at p 413. While it is arguably open to interpretation whether this implicitly signalled the need for a voir dire, the concurring opinion of Lamer J, as he then was, at p 404, and the dissenting opinion of Wilson J at p 411, were explicit that a voir dire should have been held. The majority of the jurisprudence following Leaney confirms that a voir dire should be held to determine the question of threshold admissibility: R v Field, 2018 BCCA 253 at para 34; R v Berhe, 2012 ONCA 716 at para 24 [Berhe]. We endorse this reading of Leaney.
[10] Absent an express waiver or consent among the parties, when the Crown seeks to tender evidence from witnesses who purport to identify the accused by viewing videotapes, without any firsthand knowledge or direct observations of the offence, a voir dire should be held. To this end, it is unfortunate that neither the Crown nor defence counsel requested a voir dire to determine the threshold admissibility of the corrections officers’ evidence, and that this issue was not flagged in the pre-trial conference.
[11] The fundamental purpose of a voir dire is to determine the admissibility of disputed evidence. This is distinct from assessing the merits of the case on consideration of all of the admissible evidence: Erven v The Queen, 1978 CanLII 19 (SCC), [1979] 1 SCR 926, 92 DLR (3d) 507 at p 931. A voir dire is the forum to explore the length of the prior relationship between the witness and the accused, the circumstances of the prior relationship and the recency of the contact between the witness and the accused prior to the incident recorded: R v Anderson, 2005 BCSC 1346 at para 25; R v Knife, 2011 SKQB 443 at paras 8-10 [Knife]. This is to determine whether the recognition witness is indeed “a helpful witness who is in a better position than the trier of fact to identify the accused”: Knife at para 9. It permits the accused to test the proposed recognition evidence without limitations or evidentiary constraints and ensures the integrity of the trial process. The trial judge erred in this regard.
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