Testimony of overheard phone call an exception to hearsay exclusion, SCC restores murder conviction

In a split decision, the Supreme Court of Canada has restored a man’s second-degree murder conviction, finding testimony of an overheard phone call was admissible hearsay evidence.

In R. v. Schneider, released Friday, seven of the court’s nine justices found the trial judge was correct to admit testimony from the accused’s brother, who said he had heard the accused admit to the murder in a phone call with his wife. The majority found, despite hearing only one side of the conversation and only being able to recount the “gist” and not the exact statement, the broader context in which the conversation had occurred gave meaning to what the brother had overheard.

“This judgment reaffirms foundational principles governing the admissibility of evidence, such as threshold relevance, party admissions and hearsay, and the process of balancing the probative value of evidence against its prejudicial effect,” says Liliane Bantourakis, who was co-counsel on the appeal for the Crown, along with Mary Ainslie.

A B.C. jury had convicted William Schneider for the second-degree murder of Natsumi Kogawa. At trial, during a voir dire on the admissibility of his testimony, Schneider’s brother said he did not remember exactly what Schneider had said to his wife, but that it was something along the lines of “I did it,” or “I killed her.” Schneider’s brother had also tipped police off as to the location of Kogawa’s body, which they found hidden in a suitcase in Vancouver’s west end.

Schneider appealed and the Court of Appeal was split, with the majority allowing the appeal, setting aside the conviction and ordering a new trial. In their view, the brother could not contextualize Schneider’s statements, because he could not remember what Schneider had said before and after the admission. So, the court’s majority found his testimony was incapable of meaning and therefore fell short of the evidentiary test of relevance.

The SCC’s majority, Justices Richard Wagner, Michael Moldaver, Suzanne Côté, Malcolm Rowe, Sheilah Martin, Nicholas Kasirer, and Mahmud Jamal, disagreed that the brother’s testimony lacked sufficient context. “In light of other evidence, the brother’s evidence was capable of non-speculative meaning and relevant.” As Schneider’s statements to his wife were a party admission, they fall within the exception to the general exclusionary rule for hearsay, the majority found.

“The court confirmed that overheard utterances are not necessarily inadmissible where the witness only heard one side of the conversation or did not hear the words spoken immediately before and after the overheard utterance,” says Bantourakis. “Likewise, the fact that the witness is uncertain as to the precise words overheard is not necessarily a bar to admission. All depends on the particular circumstances of the case.”

The admission of any type of evidence is subject to a three-part test in which judges consider whether it is relevant, whether it is subject to an exclusionary rule, and whether they should exercise discretion to exclude it.

If the evidence tends to increase or decrease the probability of a fact at issue, the evidence is relevant. The majority found the context surrounding the overheard phone call was informed by the brother’s interactions with Schneider leading up to it. Schneider told him he had done “something bad,” Schneider was “remorsefully sad,” and Schneider had told his brother the location of the body. Schneider also attempted suicide with his brother present, and the brother was around 10-feet away from him for the entire phone call, at the beginning of which, Schneider had mentioned Kogawa’s name. In light of this evidence, the majority found the brother’s evidence “was capable of non-speculative meaning and relevant.”

In assessing relevance, the question was whether, based on all the evidence, the jury could give unspeculative meaning to the overheard phone, says Bantourakis. Once that is determined, the court considers “equivocal or uncertain nature of the testimony” when weighing probative value against prejudicial effect, she says. “They also relate 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.”

While relevant evidence is usually admissible, there is an exclusionary rule for hearsay evidence, with various exceptions. One exception is a party admission, which includes “acts or words of a party offered as evidence against that party.”

In determining the admissibility of a party admission, the trial judge must balance the probative weight against the prejudicial effect. These discretionary decisions are reviewed with deference, and the majority said Schneider had not shown an error in the trial judge’s exercise of this discretion.

The dissenters, Justices Andromache Karakatsanis and Russell Brown would not have admitted the evidence. They found a jury “could not ascertain the meaning or relevance of the overheard statements,” and the “prejudicial effect outweighed any tenuous probative value they may have had.”

Justices Karakatsanis and Brown allowed that context outside of the conversation could inform statements within the conversation, but that the broader context on which the Crown relied in Schneider’s case was irrelevant, and the context arising from the conversation itself was insufficient.