R. v. Schneider, 2022 SCC 34
WHAT YOU NEED TO KNOW
- In determining the admissibility of evidence, judges must:
(1) Determine whether the evidence is relevant to an issue at trial;
(2) Determine whether the evidence is subject to an exclusionary rule (and if so, whether any exceptions apply); and
(3) Balance the probative value and prejudicial effect to determine whether to exercise their judicial discretion to exclude the evidence.
- Hearsay evidence is presumptively inadmissible. It may be admitted, however, if a categorical exception applies or where there is sufficient indicia of necessity and reliability (“the principled approach”).
- One such exception to the hearsay exclusionary rule is “party admissions”: where the Crown seeks to tender evidence of the accused’s words or conduct against the accused.
- In this case, the fact that the witness could not remember the exact words he overheard the accused say (essentially confessing to the crime) was not fatal to the relevance or ultimate admissibility of that evidence.
BACKGROUND
The respondent, Willam Schneider, was charged with second-degree murder and interfering with a dead body.[1] At trial, the Crown sought to adduce hearsay evidence from the respondent’s brother, Warren Schneider Jr., who overheard the accused speaking on the phone with his wife. The brother testified at trial that, while he could not recall the precise words said, he heard the respondent admitting to his wife that he killed the victim. The trial judge admitted the hearsay evidence. The jury convicted the respondent of second-degree murder.
The respondent appealed to the British Columbia Court of Appeal arguing that the trial judge erred in admitting the brother’s testimony relating to the overheard conversation. A majority of the BCCA allowed the appeal, set aside the conviction and ordered a new trial, holding that the testimony was inadmissible. The dissenting judge would have dismissed the appeal and would have upheld the trial judge’s admission of the evidence.
The Crown now appeals to the Supreme Court asking the court to restore the conviction.
ISSUE(S) ON APPEAL
The Crown raised two issues on appeal. The main question to be answered is:
1. Whether the impugned testimony relating to the overheard conversation is admissible hearsay evidence?
The Crown also raised an issue relating to the trial judge’s handling/answering of a question from the jury. This summary focuses on the former.
Disposition – Appeal allowed; Convictions restored.
Majority - Rowe J.
ADMISSIBILITY OF EVIDENCE – GENERALLY
Evidence is admissible where it is relevant to an issue at trial as long as it is not subject to an exclusionary rule and the trial judge does not exercise their discretion to exclude it.
In determining the admissibility of 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.
Step 1: Determine whether the evidence is relevant to an issue at trial
To determine relevance, a judge must ask whether the evidence tends to increase or decrease the probability of a fact at issue. Beyond this, there is no “legal test” for relevance. Judges, acting in their gatekeeping role, are to evaluate relevance “as a matter of logic and human experience.” The evidence does not need to firmly establish the truth or falsity of a fact, but it cannot be too speculative or equivocal to be relevant. The threshold for relevance is relatively low. Admissibility must not be confused with the weight a particular piece of evidence should be afforded.
Para. 45: In summary, judges determine relevance by asking whether, in light of all the other evidence, the at-issue evidence logically tends to make a fact in issue more or less likely. This standard applies to all evidence in criminal trials.
Step 2: Determine whether the evidence is subject to an exclusionary rule
Relevant evidence is generally admissible, subject to various exclusionary rules. One such exclusionary rule is the rule against hearsay evidence (which in turn has various exceptions).
Hearsay Evidence – Generally
Hearsay evidence refers to a statement or action made outside of court which a party seeks to adduce in court for the truth of its contents without the ability of the other party to contemporaneously cross-examine the declarant.
Hearsay evidence is presumptively inadmissible due to concerns as to the reliability of this type of evidence. Over time, exceptions to this rule developed in specific circumstances where there were lessened concerns of reliability or where hearsay was the best available evidence. These exceptions became overly cumbersome and complex. In response, the Supreme Court developed a “principled approach” to hearsay in R. v. Khan, [1990] 2 S.C.R. 531. The principled approach provides for hearsay evidence to be admitted on the basis of two factors: necessity and reliability. The recognized exceptions remain in operation, but counsel can challenge the applicability of an exception in a given case on the basis that it is not supported by sufficient indicia of necessity and reliability.
Hearsay Evidence – Party Admission Exception
The party admission exception refers to evidence of acts or words (or silence, actions and demeanour) from the accused offered as evidence against the accused. Party admissions are an exception to hearsay on the basis that a party cannot complain about the unreliability of their own statement. Unlike most hearsay exceptions, justification for allowing party admissions into evidence does not relate to reliability or necessity. Reliability and necessity are not necessary or relevant to the admissibility of a party admission.
Step 3: Determine whether to use judicial discretion to exclude the evidence
Finally, judges must determine whether they should exercise their discretion to exclude evidence by balancing probative value against prejudicial effect.
Probative value refers to the degree of relevance the evidence has to trial issues and the strength of inference that can be drawn from the evidence.
Prejudicial effect relates to the likelihood that a jury will misuse the evidence.
APPLICATION TO THE CIRCUMSTANCES OF THIS CASE
Step 1: The evidence was relevant
The brother’s testimony relating to the overheard conversation was relevant. First, 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 the respondent said.
The trial judge needed to determine whether, on the basis of all the evidence, the jury could give meaning (in a way that was not speculative) to what the brother testified that he overheard. In making this assessment, the trial judge was entitled to consider the brother’s other evidence. For example, the brother also testified that in the days leading up to the phone call at issue, he spoke with the respondent about the victim in which the respondent admitted he had done “something bad”. This context is relevant in assessing whether the brother’s testimony relating to the phone call was capable of meaning.
Although he could not remember the exact words the accused said, the brother’s testimony was that he overheard a phone call in which the accused admitted to killing the deceased. The brother’s recollection of the phone call, 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.
The equivocal nature of the brother’s testimony is a factor for consideration when weighing the probative value against the prejudicial effect. It also relates to ultimate reliability and believability; but those are for the trier of fact, in weighing the evidence, rather than the judge in the relevance analysis.
Step 2: The evidence was hearsay but subject to the party admissions exception
While the brother’s evidence clearly amounts to hearsay, which is presumptively inadmissible, it amounts to a party admission: the Crown sought to adduce evidence of the accused’s words for the purpose of establishing that the accused admitted to killing the deceased. As a result, the evidence comes within the recognized party admissions exception.
Step 3: In light of the comprehensive jury instructions, the trial judge did not err by admitting the evidence
The balancing of probative weight and prejudicial effect is a discretionary exercise by the trial judge that is entitled to deference on appeal.
The brother’s evidence contained many weaknesses that detracted from its probative value: he was unsure of the exact words said, he only heard one side of the conversation, he was actively trying not to listen, he consumed alcohol prior to hearing the conversation, etc.
The prejudicial effect in this arose from the fact that juries are likely to give significant weight to confession-like evidence. That being said, the prejudicial effect of the brother’s testimony could be significantly ameliorated by a strong caution to the jury about what use can be made of the evidence.
In light of the trial judge’s comprehensive jury instruction on the weaknesses of the brother’s testimony and the potential prejudicial effect of this evidence, the respondent failed to establish any error in the trial judge’s decision to admit the evidence.
Dissent - Karakatsanis and Brown JJ.
Karakatsanis and Brown JJ. agree with the majority’s framework for assessing relevance and probative value. They disagree, however, with the application of that framework to the case at bar.
In their view, a jury could not ascertain the meaning or relevance of the overheard statements. The witness, the respondent’s brother, did not know the words that he heard. He even testified he was deliberately trying not to listen to the conversation.
Moreover, in any event, the prejudicial effect outweighed any tenuous probative value they may have had. As a result, the overheard statements should not have been admitted.
The dissent would therefore dismiss the appeal.
Read the full decision here.
[1] The respondent later pleaded guilty to interfering with the body. This appeal deals only with the murder charge.
For more information on the hearsay exclusionary rule, check out Emond’s Modern Criminal Evidence, chapter 6, Hearsay.