R. v. Schneider

R. v. Schneider
Collection
Supreme Court Judgments
Date
2022-10-07
Neutral citation
2022 SCC 34
Case number
39559
Judges
Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud
On appeal from
British Columbia
Subjects
Criminal law
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Schneider, 2022 SCC 34
Appeal Heard: December 10, 2021 Judgment Rendered: October 7, 2022 Docket: 39559
Between:
His Majesty The King Appellant
and
William Victor Schneider Respondent
Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
Reasons for Judgment: (paras. 1 to 88)
Rowe J. (Wagner C.J. and Moldaver, Côté, Martin, Kasirer and Jamal JJ. concurring)
Joint Dissenting Reasons: (paras. 89 to 97)
Karakatsanis and Brown JJ.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
His Majesty The King Appellant
v.
William Victor Schneider Respondent
Indexed as: R. v. Schneider
2022 SCC 34
File No.: 39559.
2021: December 10; 2022: October 7.
Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
on appeal from the court of appeal for british columbia
Criminal law — Evidence — Admissibility — Hearsay — Party admission — Accused charged with second degree murder — Crown seeking to adduce at trial hearsay evidence from accused’s brother concerning incriminating statements he overheard accused make in telephone conversation with wife — Trial judge admitting brother’s testimony into evidence — Accused convicted by jury — Whether trial judge erred in admitting overheard statements into evidence.
The accused was charged with second degree murder after the victim’s body was recovered by police in a hidden suitcase following a tip from the accused’s brother. At trial, the Crown sought to adduce hearsay evidence from the brother, who overheard the accused speaking on the phone with his wife. The trial judge held a voir dire regarding the admissibility of the brother’s testimony, during which the brother testified that he could not remember word‑for‑word what the accused said to his wife but the statements made were along the lines of “I did it” or “I killed her”. The trial judge ruled the testimony was admissible. The brother also testified at trial as to several critical conversations he had with the accused regarding the victim and the location of her body prior to the accused’s phone call to his wife. The jury convicted the accused of second degree murder.
The accused appealed his conviction, arguing that the trial judge erred in admitting the brother’s testimony as to the overheard conversation and in responding to a mid‑deliberation question from the jury. The majority of the Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial. It held that the testimony was not capable of meaning and therefore not relevant and should not have been admitted. In its view, only the micro context, i.e. the words said before and after the overheard admission, was pertinent in determining whether the admission had meaning, and the brother could not recall this context. The dissenting judge would have dismissed the appeal, as she saw all the evidence, including the brother’s conversations with the accused leading up to the phone call, as capable of informing the meaning of the overheard words. The Court of Appeal unanimously dismissed the ground pertaining to the question from the jury. The Crown appeals to the Court as of right. In response, the accused argues the trial judge erred in dealing with the jury’s mid‑deliberation question.
Held (Karakatsanis and Brown JJ. dissenting): The appeal should be allowed and the conviction restored.
Per Wagner C.J. and Moldaver, Côté, Rowe, Martin, Kasirer and Jamal JJ.: The trial judge did not err in admitting the brother’s hearsay evidence. What the brother overheard the accused say on the phone was capable of non-speculative meaning such that it was relevant; it was admissible under the party admission exception to hearsay; and there is no basis to disturb the trial judge’s discretionary balancing of probative value against prejudicial effect. In addition, there is substantial agreement with the Court of Appeal that the jury’s question was not ambiguous and the trial judge answered it correctly.
The three‑part test for admission of all evidence, including party admissions, that trial judges must consider is: (a) whether the evidence is relevant; (b) whether it is subject to an exclusionary rule; and (c) whether to exercise discretion to exclude it. While a voir dire is often needed when questions arise as to admissibility, it may not be necessary for party admission evidence; whether one is needed for such evidence is to be determined in the circumstances of each case.
First, to determine relevance, a judge must ask whether, in light of all the other evidence, the at‑issue evidence logically tends to make a fact in issue more or less likely. The threshold is low and judges can admit evidence that has modest probative value. Concepts like ultimate reliability, believability, and probative weight have no place when deciding relevance; they are reserved for the finder of fact. The evidentiary context that trial judges can use to determine whether evidence is capable of meaning such that it could be relevant includes evidence that parties have adduced and evidence that a party indicates that they intend to adduce. This proposition applies to party admissions; there is no basis to treat them differently in the determination of relevance. Accordingly, there is no basis in law to differentiate between micro and macro context; all the evidence is capable of informing a judge’s analysis of this question. Furthermore, party admissions, like other evidence, are not rendered inadmissible because the witness is equivocal in their testimony. To the extent that a witness’s uncertainty or imperfect recollection is related to admissibility (rather than weight), they are properly to be considered by the trial judge when balancing probative value against prejudicial effect. Thus, the fact that a witness cannot recall the exact words used does not mean that such evidence has no relevance. The focus should remain on whether the jury can give meaning to the witness’s testimony in a manner that is non‑speculative.
Second, evidence that is relevant is ordinarily admissible, subject to various exclusionary rules. Hearsay evidence is subject to a general exclusionary rule and various exceptions. One such exception is the party admission exception. Party admissions include any acts or words of a party offered as evidence against that party. In criminal trials, a party admission will be evidence that the Crown adduces against an accused. The common law justifies allowing party admissions into evidence on the basis that a party cannot complain of the unreliability of his or her own statements. Unlike many other exceptions, justification for allowing party admissions does not relate to necessity or reliability; accordingly, they are admissible without reference to necessity or reliability.
Third, judges must determine whether they should exercise their discretion to exclude evidence by balancing probative value against prejudicial effect. This weighing has been referred to as a cost benefit analysis. Probative value relates to the degree of relevance to trial issues and the strength of inference that can be drawn from evidence. Prejudicial effect relates to the likelihood that a jury will misuse the evidence. Judges sitting with juries should consider the extent to which the cost associated with the evidence (i.e., the prejudice) can be attenuated by appropriate instructions to the jury as to the use to which the evidence can properly be put. A trial judge’s determination that the probative value of evidence outweighs its prejudicial effect is discretionary and should be reviewed with deference.
In the instant case, the trial judge did not err in admitting the brother’s testimony as to what he overheard the accused say. There was sufficient context for the jury to give meaning to the words that the brother overheard, such that the evidence overcomes the low threshold for relevance. It is not fatal that the brother was uncertain as to the exact words that he heard the accused say. The equivocal nature of the brother’s testimony is a factor for consideration when weighing the probative value against the prejudicial effect. The brother’s evidence, if believed by the jury, tends to increase the probability that the accused was responsible for the victim’s death. In light of other evidence, the brother’s evidence was capable of non‑speculative meaning and relevant. Next, the evidence was that the accused had, by his words, admitted responsibility for the victim’s death. This is a party admission, and therefore comes within a recognized exception to the general exclusionary rule for hearsay. Finally, the accused did not demonstrate an error in the trial judge’s discretionary balancing of probative value against prejudicial effect, particularly in light of the well‑structured jury instructions on appropriate use of the party admission, which effectively and adequately limited the possibility of prejudicial use.
Per Karakatsanis and Brown JJ. (dissenting): The appeal should be dismissed. There is agreement with the majority’s framework for assessing relevance and probative value but disagreement with its application. The evidence of the overheard statements should not have been admitted as a jury could not ascertain their meaning or relevance. On the evidence before the jury, it was impossible to know what the accused said to his wife during the overheard phone call. The brother did not know the words that he heard, he was deliberately trying not to listen to the conversation, he neither participated in the conversation nor heard both sides of it, and he acknowledged that he did not know what was said or recall the substance of what was said. Assessing the relevance of the accused’s brother’s testimony is therefore an exercise in pure speculation. While context beyond the immediate conversation can inform the meaning of statements made within the conversation, in the instant case, the contextual features beyond the conversation that were relied on were irrelevant and there was insufficient context arising from the conversation itself. In any event, when the potential for misuse is measured against the absence of any significant probative value, the result is that the evidence should have been removed from the jury’s consideration.
Cases Cited
By Rowe J.
Applied: R. v. Ferris, [1994] 3 S.C.R. 756; considered: R. v. Ferris (1994), 149 A.R. 1; R. v. Bennight, 2012 BCCA 190, 320 B.C.A.C. 195; R. v. Buttazzoni, 2019 ONCA 645; R. v. Hummel, 2002 YKCA 6, 166 C.C.C. (3d) 30; referred to: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688; R. v. Arp, [1998] 3 S.C.R. 339; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475; R. v. Corbett, [1988] 1 S.C.R. 670; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298; R. v. Evans, [1993] 3 S.C.R. 653; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865; R. v. Gordon Gray, 2021 QCCA 882; R. v. Foreman (2002), 169 C.C.C. (3d) 489; R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321; R. v. Lo, 2020 ONCA 622, 152 O.R. (3d) 609; R. v. Scott, 2013 MBCA 7, 288 Man. R. (2d) 188; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908; R. v. Robertson, [1987] 1 S.C.R. 918; R. v. Khill, 2021 SCC 37; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42; R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v. Reierson, 2010 BCCA 381, 259 C.C.C. (3d) 32; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Miljevic, 2011 SCC 8, [2011] 1 S.C.R. 203.
By Karakatsanis and Brown JJ. (dissenting)
R. v. Ferris (1994), 149 A.R. 1; R. v. Arp, [1998] 3 S.C.R. 339.
Statutes and Regulations Cited
Criminal Code , R.S.C. 1985, c. C‑46, ss. 2 “bodily harm”, 25(3), 182(b), 229(a)(ii), 235(1).
Authors Cited
Lederman, Sidney N., Michelle K. Fuerst and Hamish C. Stewart. Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. Toronto: LexisNexis, 2022.
Paciocco, David M., Palma Paciocco and Lee Stuesser. The Law of Evidence, 8th ed. Toronto: Irwin Law, 2020.
Vauclair, Martin, et Tristan Desjardins, avec la collaboration de Pauline Lachance. Traité général de preuve et de procédure pénales 2022, 29e éd. Montréal: Yvon Blais, 2022.
Younger, Irving. An Irreverent Introduction to Hearsay. Chicago: American Bar Association, 1977.
APPEAL from a judgment of the British Columbia Court of Appeal (Saunders, Goepel and DeWitt‑Van Oosten JJ.A.), 2021 BCCA 41, 400 C.C.C. (3d) 131, [2021] B.C.J. No. 151 (QL), 2021 CarswellBC 232 (WL), setting aside the conviction of the accused for second degree murder and ordering a new trial. Appeal allowed, Karakatsanis and Brown JJ. dissenting.
Mary T. Ainslie, K.C., and Liliane Y. Bantourakis, for the appellant.
Christopher Nowlin, Thomas Arbogast, K.C., and Katherine Kirkpatrick, for the respondent.
The judgment of Wagner C.J. and Moldaver, Côté, Rowe, Martin, Kasirer and Jamal JJ. was delivered by
Rowe J. —
[1] This appeal concerns the admissibility of hearsay evidence, being testimony of an overheard phone conversation that included an admission of criminal responsibility. Central to these reasons is the view that the admissibility of such evidence is governed by foundational legal principles, rather than some unique rule. Thus, in deciding this case I will consider relevance, hearsay and the discretionary weighing of probative value against prejudicial effect. It will be necessary, as well, to apply this Court’s decision in R. v. Ferris, [1994] 3 S.C.R. 756.
[2] In deciding this appeal, I will answer three questions. First, whether what the witness overheard had meaning, such that it was relevant to an issue at trial. Second, whether what the witness overheard was admissible under an exception to the general exclusionary rule against hearsay. Third, whether the trial judge appropriately refused to exclude the evidence on the basis that the probative value outweighed the prejudicial effect. I answer each question in the affirmative. What the witness overheard the accused say on the phone was capable of non-speculative meaning such that it was relevant; it was admissible under the “party admission” exception to hearsay; and there is no basis to disturb the trial judge’s decision to admit the evidence.
[3] The police charged the respondent, William Victor Schneider (“accused”), with second degree murder and interfering with a dead body contrary to ss. 235(1) and 182 (b) of the Criminal Code , R.S.C. 1985, c. C-46 . At trial, the Crown sought to adduce hearsay evidence from the accused’s brother, Warren Schneider Jr. (“brother”), who overheard the accused speaking on the phone with his wife. The brother testified that, while he could not recall the precise words the accused said, during that call the accused admitted to killing the victim. This is the evidence at issue. At the close of the Crown’s case, the accused pleaded guilty to interfering with the body. Thus, this appeal deals only with the murder charge.
[4] The trial judge admitted the brother’s testimony as to the overheard conversation. The jury convicted the accused of second degree murder. The accused appealed, arguing the trial judge erred, inter alia, by admitting the brother’s testimony as to the overheard conversation. A majority of the British Columbia Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial, holding that the at-issue testimony was inadmissible. The dissenting judge would have dismissed the appeal as she would have upheld the trial judge’s admission of the evidence and affirmed the conviction.
[5] The judges of the Court of Appeal all agreed that R. v. Ferris (1994), 149 A.R. 1 (C.A.), as affirmed by this Court, governed whether the brother’s testimony was admissible. All were of the view that the evidence was admissible if it was capable of meaning and, thus, relevant to an issue at trial. However, the judges disagreed as to what other trial evidence could inform the analysis of whether the evidence had meaning and was, thus, relevant. The majority drew a tight contextual circle around the evidence that could inform meaning. In doing so, the majority held that only the “micro” context, i.e. the words before and after the evidence at issue, was pertinent to meaning. The dissent saw all the evidence as capable of informing the meaning of what the brother overheard.
[6] The Crown asks this Court to allow the appeal and restore the conviction. I would do so. The trial judge did not err in admitting this part of the brother’s evidence. There is no basis in law to differentiate between “micro” and “macro” context when determining whether evidence is capable of meaning and, therefore, relevant. All the evidence is capable of informing a judge’s analysis of this question.
[7] In response to the Crown’s as of right appeal, the accused raised an additional issue. He argues that the trial judge erred in dealing with a mid-deliberation question from the jury. On this point, I am in substantial agreement with the unanimous Court of Appeal. The jury’s question was not ambiguous and the trial judge did not err in answering it.
I. Facts
[8] The victim, Ms. Natsumi Kogawa, was reported missing on 12 September 2016. Police issued a news release on 27 September 2016 with a picture showing Ms. Kogawa with an unidentified male at a mall. Police asked for the public’s assistance identifying that man. Police then received a tip from the accused’s brother as to the whereabouts of Ms. Kogawa’s body. That tip led to police recovering Ms. Kogawa’s body, two weeks after she was reported missing, in a suitcase hidden in Vancouver’s West End. After investigation, police arrested the accused and charged him with second degree murder and interfering with Ms. Kogawa’s body after death.
[9] Between the police news release and his tip to police, the brother had several critical conversations with the accused. I describe these below. As the accused did not testify, the descriptions come entirely from the brother’s testimony.
A. 27 September 2016
[10] On 27 September 2016, the brother’s daughter brought the police news release to his attention. She asked if the unidentified man was the accused (her uncle). The brother said yes. He then called the accused to tell him about the police news release. The accused did not respond and hung up the phone.
[11] The brother went to where the accused was staying and the two went for a walk. During this walk, the accused described his relationship with Ms. Kogawa. He said that he had gone on three dates with her. He told his brother that on the third date they took “medication”. The brother testified that the accused appeared “[r]emorsefully sad” during this conversation and that the accused told him “it’s true” (A.R., vol. II, at pp. 113-14). The trial judge excluded the brother’s evidence as to what he thought the accused meant by this statement. The brother told the accused that they should speak again in the morning.
B. 28 September 2016
[12] The next morning, the accused told the brother that he intended to purchase heroin and use the drug to die by suicide. The accused asked the brother to be with him; the brother agreed. They both purchased alcohol and the accused purchased heroin. Together, they went to a park.
[13] After arriving at the park, and before taking heroin, the accused told the brother the location of Ms. Kogawa’s body. The brother was to inform the police of the body’s location after the accused died by suicide. The accused then injected himself with heroin. However, he did not die.
[14] After this suicide attempt, the accused asked the brother for his cellphone. The accused called his wife, a non-compellable witness. This call is at the center of this appeal. Although the brother was about 10 feet away and “not actively trying to listen” (C.A. reasons, 2021 BCCA 41, 400 C.C.C. (3d) 131, at para. 42), he overheard portions of the accused’s conversation. What the brother can testify to regarding what he overheard is the principal issue in this appeal.
II. Testimony at Issue
A. The Brother’s Voir Dire Testimony
[15] The trial judge held a voir dire regarding the admissibility of the brother’s testimony as to what he overheard the accused say to his wife.
[16] In the voir dire examination-in-chief, the brother testified that the accused began the call by saying “[d]id you see the news of the missing Japanese woman, student?” (A.R., vol. II, at p. 135). He also testified that the accused later said, “I did it” and “I killed her” (ibid.).
[17] In the voir dire cross-examination, defence counsel confronted the brother with his preliminary inquiry testimony in which he had testified that he “believe[d]” the accused said “I did it” or “I killed her” (A.R., vol. II, at pp. 141 and 147). After seeing the preliminary inquiry transcript, the brother said that “word-for-word” he could not remember what the accused said, but that the statements made were “along those lines” (pp. 138-45).
[18] The trial judge ruled the testimony was admissible.
B. The Brother’s Trial Testimony
[19] During examination-in-chief, the brother stated that the accused, at the beginning of the phone conversation, said “[d]id you hear the news about the missing Japanese student?” (A.R., vol. II, at p. 170). He testified he did not know the exact words the accused said after, but thought that “[n]ear halfway through the conversation” the accused said that “he did it, he killed her” (ibid.). Although the brother heard only one side of the conversation, the gist of what he overheard was that the accused was taking responsibility for Ms. Kogawa’s death. The brother testified that the conversation “wasn’t . . . mild” or “loving” (A.R., vol. II, at p. 171).
[20] During cross-examination, the brother acknowledged that he did not recall the exact words that the accused used. Further, even if he was correct in remembering that the accused said “I did it” or “I killed her”, he was unaware what these phrases were said in response to. The brother could not be sure if the phrases were said in response to a question or if they related to Ms. Kogawa’s disappearance. The brother testified he was not trying to listen to the conversation, that he was under significant stress at the time, and that he had consumed alcohol.
III. Decisions in Issue
A. The Voir Dire Ruling, 2018 BCSC 2546
[21] The trial judge took the view that admissibility of the brother’s evidence hinged on whether: (1) there was “some evidence” (para. 19, reproduced in A.R., vol. I, at p. 5) that the jury could use to determine the meaning of the words the brother overheard, such that the words were relevant and (2) the probative value of the evidence outweighed the prejudicial effect.
[22] That the brother was unable to recall the exact words did not make his testimony inadmissible. He testified that the accused said “I killed her” or “I did it” and that he understood the “gist” of the conversation (paras. 16-17). There was sufficient context for the jury to give meaning to the words. The probative value of the evidence outweighed any prejudicial effect; as well, a “strong caution to the jury” could ameliorate any issues associated with the evidence (para. 21). On this basis, the trial judge admitted the evidence.
B. Answer to the Jury’s Mid-Deliberation Question and Conviction
[23] During deliberation, the jury sent a handwritten note to the court setting out the following question (see the reproduction in the appendix to these reasons):
Could you please expand on the definition of bodily harm in Q3 (intent required for murder) versus bodily harm as described in para 109./111 for manslaughter.
* Bodily Harm
Any hurt or injury . . .
Interfers [sic] health . . .
More than just brief/minor.
* Concept of Bodily Harm
That the accused knows is “likely” to cause death and reckless . . .
[Emphasis in original.]
(A.R., vol. IV, at p. 215; see also C.A. reasons, at para. 115.)
[24] The references to “Q3” and “para 109./111” are to the following passages in the jury instructions:
[109] The criminal fault in manslaughter is the commission of the unlawful act which is objectively dangerous in the sense that a reasonable person, in the same circumstances as the accused, would recognize that the unlawful act would subject another person to the risk of bodily harm. “Bodily harm” is any hurt or injury that interferes with a person’s health or comfort and is more than just brief or of a minor nature.
[110] In the offence of murder there is in addition to the unlawful act, the ingredient of either an intention to cause death or an intention to cause bodily harm that the accused knows is likely to cause death and is reckless as to whether death ensues. These are the legal differences between the offences of second degree murder and manslaughter.
[111] Therefore, what distinguishes murder from manslaughter is the mental state, or what we describe in criminal law as the intent of the person causing the death.
[Q3: Did Mr. Schneider Have the Intent Required for Murder?]
[132] To prove that Mr. Schneider had the intent required for murder, the Crown must prove beyond a reasonable doubt one of two things, either:
1. that Mr. Schneider meant to cause Ms. Kogawa’s death; or
2. that Mr. Schneider meant to cause Ms. Kogawa bodily harm that he knew was likely to cause her death and was reckless whether death ensued or not.
[133] In other words, you must decide whether the Crown has proved beyond a reasonable doubt either that Mr. Schneider meant to kill Ms. Kogawa, or that Mr. Schneider meant to cause Ms. Kogawa bodily harm that he knew was so dangerous and serious it was likely to kill Ms. Kogawa and proceeded despite his knowledge of that risk. [Emphasis deleted.]
(See C.A. reasons, at paras. 116-17.)
[25] The trial judge conferred with counsel regarding the jury’s question. She asked if they thought that she should provide the jury with an expanded definition of intent. Crown counsel replied that the jury “seem[ed] to be caught up that with bodily harm there must be some injury or bruising or something of that nature” (A.R., vol. III, at p. 327). Defence counsel recommended that the judge provide to the jury the definition of “bodily harm” set out in s. 2 of the Criminal Code . The judge agreed with this and indicated that initially she had misread the jury’s question. Although Crown counsel went on to suggest an expanded definition of intent, defence counsel was firm that this was not what the jury was asking about. The trial judge decided that she would “wait until [they] get there” on intent (A.R., vol. III, at p. 331). She called in the jury and twice read the definition of “bodily harm” from s. 2 of the Criminal Code . The jury asked no further questions and convicted the accused of second degree murder.
C. British Columbia Court of Appeal, 2021 BCCA 41, 400 C.C.C. (3d) 131
[26] The accused appealed his conviction on three grounds. Two are relevant to the appeal before this Court. He asked the Court of Appeal to consider if the trial judge erred:
(1) by admitting the brother’s testimony regarding the overheard telephone conversation (“Admissibility Issue”); and
(2) in responding to the question from the jury (“Jury Question Issue”).
[27] The Court of Appeal unanimously dismissed the Jury Question Issue but divided on the Admissibility Issue. The majority held that the brother’s testimony as to the overheard telephone conversation was inadmissible; DeWitt-Van Oosten J.A., in dissent, held that the trial judge did not err in admitting this testimony.
(1) The Admissibility Issue
[28] The Court of Appeal judges agreed that the brother’s testimony was admissible if: (1) it was relevant; and (2) the probative value outweighed the prejudicial effect. However, the majority and dissent differed as to the context that a trial judge could use to decide whether the party admission was capable of meaning and, therefore, relevant. The majority held there are two facets to context: “micro” and “macro” (para. 203). Only the micro context, i.e. the words said before and after the overheard admission, were pertinent in determining whether the admission had meaning. As the brother could not recall “what was said before or after the overheard words[,] no properly instructed jury could conclude that the overheard fragment was an admission” (paras. 205-6). The testimony was not relevant and, accordingly, should not have been admitted.
[29] Justice DeWitt-Van Oosten, in dissent, would have held that trial judges can consider all the evidence when determining if the words had meaning and, thus, are relevant. In this case, there was significant evidence (beyond the “micro” context) to inform the meaning of the words the brother overheard. The brother had several conversations with the accused leading up to the phone call; the accused responded to the brother’s questions about the news release identifying a missing woman by saying “it’s true”; the accused had informed the brother of the location of Ms. Kogawa’s body; the accused displayed a remorseful demeanour during interactions that he had with the brother leading up to the phone call. The words the brother overheard “formed part of an ongoing interaction and dialogue” (para. 89). From the entirety of the evidence, a properly instructed jury would be able to give meaning to the words overheard in a manner that was not speculative. As such, the brother’s testimony was relevant.
[30] Considering the next step of admissibility, DeWitt-Van Oosten J.A. held the trial judge’s weighing of probative value against prejudicial effect was entitled to deference. Further, any prejudice that might have arisen had been limited by appropriate jury instructions explaining the proper use of the party admission. In the result, DeWitt-Van Oosten J.A. would have dismissed this ground of appeal.
(2) The Jury Question Issue
[31] The accused argued that the trial judge erred in two ways: first, by failing to ask the jury for clarification of the question, as it was ambiguous; and, second, by failing to answer it correctly. The panel unanimously dismissed this ground of appeal. The question was not ambiguous and there was no validity to the accused’s suggestion that the definition of bodily harm was different for manslaughter than for murder. Principles of statutory interpretation demand that the same definition for bodily harm apply to both offences. The difference between the two offences is not in the degree of bodily harm an accused inflicts, but rather in the intent that accompanies the act. The panel concluded there was “no reasonable possibility of the jury having been misled and convicting the [accused] of second degree murder based on a diminished form of intent” (para. 148).
IV. Issues on Appeal
[32] The Crown appealed the Court of Appeal’s decision on the Admissibility Issue as of right. The accused raised the Jury Question Issue as an alternative basis on which this Court could uphold the order from the Court of Appeal.
V. Analysis
[33] I address this appeal in two parts. First, I address the Admissibility Issue. I conclude that the trial judge did not err in admitting the brother’s testimony. Second, I address the Jury Question Issue. On this issue I am in substantial agreement with the unanimous reasons of the Court of Appeal. Like them, I conclude that the jury’s question was not ambiguous and that the trial judge did not err in answering it. In the result, I would allow the Crown’s appeal, set aside the Court of Appeal decision and restore the accused’s conviction for second degree murder.
A. Admissibility Issue
[34] The Court of Appeal focused on the fact that the evidence is a party admission. While being mindful of this, my analysis situates the Admissibility Issue in the broader context of the law of evidence, rather than treating it as a unique or niche issue.
[35] I proceed first by describing what I consider to be settled law as to the general procedure for determining admissibility of evidence at a criminal trial, including party admissions. I then apply the foregoing to the brother’s testimony, concluding that the trial judge did not err in admitting the evidence.
(1) Legal Framework for Admissibility of Evidence at a Criminal Trial
[36] Evidence that is relevant to an issue at trial is admissible, as long as it is not subject to an exclusionary rule and the trial judge does not exercise their discretion to exclude it (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2; D. M. Paciocco, P. Paciocco and L. Stuesser, The Law of Evidence (8th ed. 2020), at p. 32; S. N. Lederman, M. K. Fuerst and H. C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (6th ed. 2022), at ¶2.48; M. Vauclair and T. Desjardins, in collaboration with P. Lachance, Traité général de preuve et de procédure pénales 2022 (29th ed. 2022), at pp. 905-6). This is the three-part test for admission of all evidence. Judges must consider: (a) whether the evidence is relevant; (b) whether it is subject to an exclusionary rule; and (c) whether to exercise their discretion to exclude the evidence.
[37] When questions arise as to the admissibility of evidence, a voir dire is often needed. That said, this Court has noted in obiter that a voir dire may not be necessary for party admission evidence (R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at para. 20). Whether a voir dire is needed for such evidence is to be determined in the circumstances of each case.
(a) Determine Whether the Evidence Is Relevant to an Issue at Trial
[38] The first step in determining admissibility is considering whether the evidence is relevant. At this stage, this is often referred to as “logical relevance”. However, I will use the word “relevance” (rather than “logical relevance”) in this decision.
[39] To determine relevance, a judge must ask whether the evidence tends to increase or decrease the probability of a fact at issue (R. v. Arp, [1998] 3 S.C.R. 339, at para. 38). Beyond this, there is no “legal test” for relevance (Paciocco, Paciocco and Stuesser, at p. 35). Judges, acting in their gatekeeping role, are to evaluate relevance “as a matter of logic and human experience” (R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 44). When doing so, they should take care not to usurp the role of the finder of fact, although this evaluation will necessitate some weighing of the evidence, which is typically reserved for the jury (Vauclair and Desjardins, at p. 687, citing R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at paras. 95 and 98). The evidence does not need to “firmly establish . . . the truth or falsity of a fact in issue” (Arp, at para. 38), although the evidence may be too speculative or equivocal to be relevant (White, at para. 44). The threshold for relevance is low and judges can admit evidence that has modest probative value (Arp, at para. 38; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 18). A judge’s consideration of relevance “does not involve considerations of sufficiency of probative value” and “admissibility . . . must not be confused with weight” (R. v. Corbett, [1988] 1 S.C.R. 670, at p. 715 , per La Forest J., dissenting, but not on this point, quoting Morris v. The Queen, [1983] 2 S.C.R. 190, at p. 192). Concepts like ultimate reliability, believability, and probative weight have no place when deciding relevance. Whether evidence is relevant is a question of law, reviewable on the standard of correctness (R. v. Mohan, [1994] 2 S.C.R. 9, at pp. 20-21).
[40] This leads to the issue that divided the court below: what evidentiary context can a trial judge use to determine whether the evidence is capable of meaning, such that it could be relevant? Justice Charron addressed this in R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 30:
Relevance can only be fully assessed in the context of the other evidence at trial. However, as a threshold for admissibility, the assessment of relevance is an ongoing and dynamic process that cannot wait for the conclusion of the trial for resolution. Depending on the stage of the trial, the “context” within which an item of evidence is assessed for relevance may well be embryonic. Often, for pragmatic reasons, relevance must be determined on the basis of the submissions of counsel. The reality that establishing threshold relevance cannot be an exacting standard is explained by Professors D. M. Paciocco and L. Stuesser in The Law of Evidence (4th ed. 2005), at p. 29, and, as the authors point out, is well captured in the following statement of Cory J. in R. v. Arp, [1998] 3 S.C.R. 339, at para. 38:
To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue”. [Emphasis deleted.]
[41] As Charron J. explained, trial judges can consider relevance having regard to evidence that parties have adduced, as well as evidence that a party indicates that they intend to adduce. The judge can admit the evidence at issue conditional on counsel’s undertaking as to evidence to be adduced (Lederman, Fuerst and Stewart, at ¶2.72). Given the connection between meaning and relevance, Charron J.’s writing in Blackman logically extends to evidence that can inform meaning.
[42] This general proposition applies to party admissions. There is no basis to treat party admissions differently in the determination of relevance. At this stage in the analysis, trial judges do not need to have classified the evidence as a party admission. In drawing a tight circle around what other evidence can be taken into account in determining the relevance of party admissions (the “micro” versus “macro” distinction), the Court of Appeal majority erred in law.
[43] In making this point, I am mindful that evidence does not need to be unequivocal to be relevant. In R. v. Evans, [1993] 3 S.C.R. 653, Sopinka J. underlined that while questions of admissibility are for the trial judge, whether a statement was made and whether it is true are questions for the trier of fact (pp. 664-66; see also Vauclair and Desjardins, at pp. 865-66). Party admissions, like other evidence, are not rendered inadmissible because the witness is equivocal in their testimony. Witnesses often have imperfect recollection and express uncertainty in their testimony. To the extent that these are matters related to admissibility (rather than the weight that the trier of fact gives to the evidence), they are properly to be considered by the trial judge when balancing probative value against prejudicial effect. Thus, the fact that a witness cannot recall the exact words used does not mean that such evidence has no relevance.
[44] Of course, parties are not permitted to “bootstrap” their argument on the admissibility of a party admission to any and all evidence.