Admissibility of Hearsay: Schneider and Contextualization

Featured in Robson Crim
21 minutes ago
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Author: Anne Onnamous

The Supreme Court of Canada (SCC) describes hearsay as an out of court statement admitted for the truth of its contents.[1] Hearsay is presumptively inadmissible, meaning that it is not to be admitted as evidence in a trial unless it satisfies certain exceptions established by the courts.[2] R v Schneider provides a recent example of the court considering exceptions to the hearsay rule. It centres on the admission of an overheard phone conversation where the accused admitted responsibility for a murder. The case provides a unique and novel insight into the interpretation of hearsay admissibility, particularly regarding the contextual interpretation of evidentiary relevance. To follow is a summary of this case coupled with an analytical reflection on the present nature of evidentiary law in Canada more generally.

William Schneider was charged by police with second degree murder. At trial, his brother Warren provided testimony of a phone call he overheard between the accused and his wife. While Warren could not recall the dialogue verbatim, he did recall that the accused admitting to killing the victim.[3] The trial judge admitted this testimony as evidence under the party admission exception to the hearsay rule, and the jury convicted the accused.[4]

The British Columbia Court of Appeal (BCCA) agreed with the trial judge’s test for admissibility but contended that only the immediate context of the words uttered was pertinent in interpreting their potential meaning. The majority held that evidence is admissible if it is capable of relevant meaning, but in interpreting this meaning they “drew a tight contextual circle,” defining meaning in the context of the words said directly before and after the admission by the accused, words which the brother could not precisely recall.[5] The lack of verbatim recollection means that a jury could not conclude whether the overheard fragment was an admission without resorting to gross speculation, and it should therefore not be admitted. The appeal was allowed by the majority, who ordered a new trial.

At the SCC, the majority found that the Court of Appeal erred in distinguishing between a micro and macro context when gauging the relevant ability of evidence to provide meaning. Further, the lack of verbatim recollection did not render impugned testimony inadmissible. The brother was not actively listening to the conversation, stressed, and under the influence of alcohol.[6] He later testified to hearing the accused mention a news story about a missing Japanese student at the beginning of the call, and then saying either “I did it” or “I killed her.”[7] Taken together, the gist of the conversation was an admission of murder, and there was sufficient surrounding context for the jury to interpret the meaning of these words, particularly with regards to the broader circumstances of the accused’s behaviour around his brother.

Justice Rowe, writing for the majority, took a broad view in interpreting admissibility. Rather than starting with hearsay, he started with admissibility of evidence generally. Judges must consider whether evidence is relevant, subject to an exclusionary rule, and whether they should exercise discretion to exclude it.[8] In determining relevance, admissibility must not be confused with weight. There is a relatively low threshold for relevance, and judges should use logic and common sense rather than a legal test in order to satisfy this requirement. Evidence does not need to be equivocal in order to be relevant; admissibility hinges on whether evidence tends to make a fact at issue more or less likely.[9]

Hearsay is generally excluded due to unreliability, but to do this in all circumstances impedes court proceedings. Admission of hearsay evidence became more common where concerns of reliability were lessened or where such evidence was the best available. Party admissions are themselves one of the principled exceptions to the hearsay rule, as a party cannot complain of the unreliability of their own statements.[10] This exception falls outside of the necessity and reliability criteria that govern most other hearsay exceptions.

The evidence in this case was clearly relevant. While the nature of the brother’s testimony ought to be considered when questioning the reliability of the evidence by the trier of fact, it is not fatal regarding the judge’s analysis of relevance for admissibility.[11] The narrow circle drawn by the BCCA is irrelevant. The context for interpreting evidence is broader. In the days leading up to the phone call, the accused admitted to his brother that he had done something bad and had discussed the missing girl, telling him where the body was.[12] The surrounding context provided sufficient evidence to interpret the meaning of this testimony in a non-speculative manner, and it is accordingly relevant. Since the evidence was a party admission, it comes within the bounds of that exception to the hearsay rule and is accordingly admissible.

Interpretation of evidentiary admissibility at all levels of court in this case centred on the precedent established by R v Ferris. After being arrested for murder, Ferris asked to make a phone call while at the police station. The officer overheard the accused say, “I’ve been arrested” and “I killed David” while on the phone.[13] The officer’s testimony was admitted at trial and Ferris was convicted of second-degree murder. The Alberta Court of Appeal (ABCA) overturned this, as a jury could not properly ascribe meaning to these words, meaning they were not of probative value and ergo not relevant, nor admissible. Hearsay rules do not veto the necessity of relevancy. While the accused’s remark could have been an admission, it also could have been an answer to a question of what the police accused Ferris of doing.[14] Only speculation could determine the meaning of the words and there was not sufficient surrounding context to adduce a definitive interpretation.

The SCC upheld the ABCA’s decision, where Justice Sopinka held that the evidence ought to have been excluded as its prejudicial effect overbore its probative value. Justice Rowe is careful to point out the specific wording of the appeal in Ferris though. The SCC did not affirm the ABCA’s relevance analysis, rather it was the weighing of probative value and prejudicial effect that rendered the evidence inadmissible; this would have been the case regardless of the testimony’s relevance.[15] In Schneider, there is a greater degree of context surrounding the accused’s admission, resulting in probative value outweighing prejudicial effect, and providing a clear indication of relevance to the issue at trial.

In my view, Justice Rowe’s broader contextual interpretation is correct. The surrounding evidence tendered in Schneider provided ample context for interpreting the relevance of the brother’s testimonial evidence. As a general rule, the law is plagued with pedantry, creating a barrier to understanding for the average person. Evidentiary law in particular is rife with procedural minutia and myriad conceptual tests which prima facie provide stopgap solutions to faulty trial proceedings, but in the long run they unnecessarily overcomplicate the administration of justice. The average Canadian possesses distressingly little knowledge about the laws which govern their daily lives; the average Canadian facing criminal proceedings possesses even less. It is an unfortunate reality that often the least sophisticated members of our society must continuously grapple with the most sophisticated institution imaginable. It would be of immeasurable benefit to the justice system if the average criminal understood what was going on at their own trial. In the eyes of an accused, it would seem a ludicrous use of the courts to have counsel arguing over the interpretation of a decades old case wherein doctoral level academics on the bench pontificate over niche matters of procedural jurisprudence. In general, it seems reasonable in most circumstances to adduce that it is the context of a particular case that ought to be considered in weighing the merit and relevance of a given piece of evidence, rather than interpreting it in light of alternative circumstances.

Precedent is important in ensuring the predictability of the justice system and preventing decisions from being arbitrary. It is vital to note, however, that at the origin of any principle passed down through precedent, there is ultimately an initial decision that is not based on a preceding one. There are tendrils of precedent in our jurisprudence that guide our decisions, but at their base those principles are still either arbitrary or based on little more than the novel reasoning of the court at that time. While this is hardly what Justice Rowe was advocating for, the ruling in Schneider nevertheless steers the interpretation of evidence towards this broader approach that entrusts officers of the courts to use common sense and reason to interpret cases within their immediate context.