Is a voir dire testimony held during the course of a trial considered to be evidence in a Charter application?

In Dubois v. The Queen (1985), 1985 CanLII 10 (SCC), 22 C.C.C. (3d) 513 (S.C.C.) at 528, McIntyre J. held that testimony of an accused on a voir dire held during the course of a trial amounts to evidence given in another proceeding. As observed by McIntyre J. in Mills v. The Queen (1986), 1986 CanLII 17 (SCC), 26 C.C.C. (3d) 481 (S.C.C.) at 494-5, “The pre-trial motion and its near relative, the preliminary motion or preliminary objection, are well known in the law and may be employed in seeking s. 24(1) relief once an indictment has been preferred”. In my view, a s. 11(b)/s. 24(1) Charter application heard by a member of the trial court is clearly “another proceeding”.

Section 13 of the Charter is a protection directed against self-incrimination through the use of one’s previous testimony. The presumption of innocence underlies the right. Intrinsic to the right is that establishing the “case to meet” is the legal obligation of the Crown—“…it means specifically that the accused enjoys ‘the initial benefit of a right of silence’ and its corollary, protection against self-incrimination”: Dubois v. The Queen, supra at 532. By excluding the substantive admissibility of testimony from another proceeding, s. 13 protects individuals from being indirectly compelled to incriminate themselves.

Section 13 applies to testimony from an earlier proceeding whether voluntarily given or as a witness under compulsion: Dubois v. The Queen, supra at 534.