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Liam K. Thompson
Neuberger & Partners LLP
Toronto Criminal Lawyers
A person has a conversation on the phone. A bystander, who is standing some distance away, thinks that the gist of the conversation involved a confession to murder. Based in part on the bystander’s information, the police lay murder charges. Can the bystander give evidence as to the gist of the conversation? In the Supreme Court’s recent decision of R v Schneider, the majority held that this evidence was admissible.
A woman was reported missing in Fall 2016. On September 27, the police released surveillance footage showing the missing woman with an unidentified male. Subsequent to the release of the footage, the police received a tip from the accused’s brother. The tip led to the police uncovering the woman’s body in a suitcase. William Schneider was charged with second degree murder and interfering with a body after death.
After the police released the surveillance, but before the brother’s tip was received, Schneider and his brother had several conversations.
On the 27th, the Schneider told his brother that he had went on several dates with the deceased and mentioned that they had taken medication on the third date. According to the brother, Schneider seemed “remorsefully sad”, and told him “It’s true”. The brother’s evidence as to what he thought Schneider meant by the “it’s true” statement was excluded.
On the 28th, Schneider told his brother that he intended to purchase heroin to kill himself. Schneider and his brother went to a park and drank alcohol together. Schneider told his brother of the location of the body, and then took the heroin. He did not die. Schneider then called his wife (who would not be a compellable witness). His brother was about 10 feet away and testified that he was not trying to listen.
In voir dire, the brother testified that he opened the conversation by asking his wife if she had heard the news about the missing woman. He then said he overheard Schneider say, “I did it” and “I killed her”. In cross-examination, the brother admitted that he could not remember word-for-word what Schneider had said, but that the statements were along those lines.
The trial judge admitted the statements, but the Court of Appeal for British Columbia overturned this decision and ordered a new trial. The Crown appealed to the Supreme Court of Canada.
Both Supreme Court opinions here turned on basic evidentiary principles, namely those of relevance, the party admission exception to the hearsay rule, and a court’s residual discretion to exclude evidence when its prejudicial effect exceeds its probative value.
The law of evidence is concerned with a court’s search for truth in determining what really happened. Its basic principle can be summed up in a sentence: all relevant evidence should be admitted, absent an exclusionary rule, and absent the trial judge exercising their discretion to exclude it.
Relevance, in the evidentiary context, refers to the deceptively simple idea that a given piece of evidence can go towards proving or disproving a material fact at trial. Here, the Court held that the evidence was relevant, and the extent of its relevance could be placed in context by the other evidence that the jury heard at trial: Schneider seeming remorsefully sad when his brother raised the issue of the missing woman with him, Schneider telling his brother “it’s true”, Schneider telling his brother where the woman’s body could be found, and the brother attempting to kill himself immediately before making the phone call at issue to his wife. The jury, if they believed the brother’s evidence, was capable of assigning meaning to the phone call as recollected by the brother, and as such it did meet the test of relevance.
This evidence was also hearsay. Distilled to its simplest form, hearsay refers to an out of court statement offered to prove the truth of its contents. Hearsay is looked upon as so dangerous to the truth finding process that it is generally excluded, subject to the statement falling into an exception. Hearsay is generally excluded because the person making the statement is not in court to have the truth of the statement tested by a vigorous cross-examination. However, the statement at issue here fell into a hearsay exception—the party admissions rule. When the hearsay statement was supposedly made by a party to a given proceeding, the party admissions rule states that the person cannot point to the unreliability of their own statement as a reason to exclude it. The statements over the phone unarguably fell into this exception, and as such, the only remaining hurdle to them being admitted was the trial judge’s residual discretion. 
The trial judge ultimately did not use her discretion to exclude the evidence on the basis of prejudicial effect outweighing probative value. In layman’s terms: does this evidence, while relevant, hurt the court’s fact finding process (prejudicial effect) more than it helps it (probative value)? Here, the court held that the trial judge had not erred in failing to use her discretion to exclude the evidence: while there was a real risk of the evidence being misused by the jury, the trial judge was mindful of this and gave a strong caution to the evidence at issue. She methodically went through weaknesses in the brother’s testimony, and detailed certain circumstances that may have affected what Schneider himself had said on the phone—that he had recently consumed both heroin and alcohol. The evidence, in correspondence with the detailed caution from the trial court, was properly before the jury.
Ultimately, the majority allowed the Crown appeal, and restored the conviction entered by the trial court.
Justices Brown and Karakatsanis dissented. While noting that they did not disagree with the broad principles as discussed by the majority, they did disagree with their application to the facts. They pointed out that the brother did not have a specific recollection of exactly what was said on the phone. The statement “I did it” could have come at the beginning, middle or end of a longer sentence, and the brother was some distance away and actively trying not to listen. Despite this, the Crown sought to tender these words as an admission of responsibility for the death of the victim.
The dissenting justices pointed out that the context on which the majority based its opinion in terms of assessing the logical relevance of the statements was in fact irrelevant to assigning meaning to what was actually said on the phone call. The brother knowing Schneider well, having previously had conversations with him about the victim and the fact that he disclosed the location of the body were not only irrelevant to what Schneider said, but were actively harmful. By using the evidence that tended to implicate Schneider in the murder to assess the context, they would be tempted to use those facts to conclude that Schneider probably committed the murder, and then conclude that he admitted to it on the phone with his wife.
Ultimately, the dissenting justices would not have held that the brother’s recollection of the overheard conversation met the test of relevance given the difficulties in assigning meaning to the gist of one side of an overheard conversation. They also noted that even if the evidence did meet the threshold of relevance, then they would have excluded it in any event as its prejudicial effect exceeded its probative value.
While this case does provide an excellent overview of several foundational evidentiary principles, the result is nonetheless troubling. Allowing the gist of one side of an overheard conversation, with a statement that sounds something like a confession to murder presents serious dangers to the fact-finding process. Despite this decision binding all lower courts in Canada, hopefully trial judges—assisted by experienced criminal lawyers– will be mindful of the dangers presented by evidence similar to this and exercise their discretion to exclude it.
 R v Schneider 2022 SCC 34 at paras 10-11.
 Ibid at paras 12-14.
 Ibid at paras 15-17.
 R v Schneider 2022 SCC 34 at para 36.
 Ibid at para 39.
 Ibid at para 78.
 R v Schneider at paras 59-61.
 Ibid at paras 90-91.
 Ibid at para 92.
 Ibid at para 94.
 Ibid at para 96.