Appellant convicted of numerous weapons and Customs Act offences. Accused was self-represented at trial and testified on a blended voir dire relating to Charter issues. Issue on appeal of “whether the evidence from the voir dire was properly applied to the trial proper”.

Held: Appeal allowed; conviction quashed.

As per Darrach, 2000 SCC 46, accused’s testimony in a voir dire is protected by s 13 of the Charter and “cannot later be used as evidence of guilt”. Appellant did not clearly understand implication of blended process or consent to his testimony being used to incriminate himself. Even where accused has given consent, courts may be hesitant to rely on inculpatory voir dire testimony: Hurry, 2002 ABQB 420. Here, Crown cross-examined appellant on elements of the offence as well as credibility issues during the voir dire. The trial judge erred in relying on the on appellant’s evidence (that would not have been available without the blended process) in considering his knowledge and intention.

D. Mahoney – Defence Counsel