CAN I AT LEAST HAVE MY PHONE CALL? - Chad Laferriere-Enns & Eric Gagnon

It can be easy to underestimate the role which the law of evidence plays in the criminal justice system. One may think that evidence is a straightforward and simple matter; the facts are the facts, and the accused is guilty or not, plain and simple.

However, the law of evidence is anything but. Especially when potential wrongful convictions hang in the balance, the stakes could not be higher. The very recent decision of R v. Schneider is indicative of how complicated and significant the law of evidence can be.[1]

A DEAD BODY AND A PHONE CALL

Mr. William Victor Schneider was charged with second-degree murder and interfering with a dead body after the victim’s body was recovered by police in a hidden suitcase. At trial, Schneider pled guilty to interfering with the body, leaving only the murder charge in dispute. The Crown sought to adduce hearsay evidence from Schneider’s brother, who had overheard the accused speaking on the phone with his wife, allegedly regarding the murder.

Schneider and the deceased, Ms. Natsumi Kogawa, had been dating at the time of her death. After her disappearance, Schneider and his brother had gone on a walk where Schneider stated that on their last date that they had taken “medication” and that he had done “something bad”.[2]

The next morning, Schneider told his brother that he intended to purchase heroin and use the drug to end his own life. Schneider asked his brother to be with him when he did; his brother agreed. They both purchased alcohol and Schneider purchased the heroin. Together, they went to a park. There, Schneider told his brother the location of Kogawa’s body before injecting himself with the heroin. However, he did not die.

It was shortly after the suicide attempt that Schneider made the phone call to his wife. His brother was about 10 feet away from him and actively trying not to listen. At trial, the brother testified that despite everything, during this phone call he overheard Schneider admit to killing Kogawa to his wife. The heart of this case surrounds this testimony and whether it is evidence that a jury should consider in deciding Schneider’s guilt.

QUESTIONABLE EVIDENCE

Hearsay evidence is an out-of-court statement that is admitted for the truth of its contents. In this instance, the phone conversation is regarded as hearsay evidence because it is being used to prove that Schneider was responsible for the death of Kogawa. Hearsay evidence is presumptively invalid, and its admission will generally be denied. This is due to the unreliable nature of hearsay evidence, given the difficulty involved in determining whether the out-of-court statement is true or not. Even so, a judge may still choose to admit the evidence so long as it meets certain criteria.

Although the brother was unable to recall the exact words that Schneider had used, he nonetheless testified that the “gist” of the conversation was that he told his wife “I did it” or “I killed her”.[3]

The trial judge found that while the brother was unable to recall the exact words of the conversation, this did not make his testimony inadmissible. There was enough context surrounding the phone call – prior conversations, the brothers’ relationship, and Schneider’s admission of interfering with the body – for the jury to understand what the accused had intended to say to his wife. Thus, the evidence was allowed, and the Crown proceeded to instruct the jury that they “can infer from these words that (Schneider) intended… or meant to kill Natsumi Kogawa”.[4]

THROUGH THE COURTS

Schneider appealed, arguing that the trial judge had made a mistake. The British Columbia Court of Appeal agreed with Schneider and ruled that there should be a new trial without the phone call evidence. Now it was the Crown’s turn to appeal to the Supreme Court of Canada, who would decide once and for all whether the trial judge was correct in admitting the hearsay evidence. Finally, in a split seven-two decision, the Supreme Court held that the hearsay evidence was admissible, and the trial court’s finding of guilt should be restored.

Justices Russell Brown and Andromache Karakatsanis, the “two” of the Supreme Court’s “seven-two” decision, strongly disagreed with the majority’s ruling. The dissenting justices found that the evidence should not have been admitted. They wrote, “it [is] impossible to know what Schneider said to his wife during the overheard phone call… Schneider’s brother, did not know the words he heard. He was deliberately trying not to listen to the 13-minute conversation”.[5] They further stated that any assessment of the phone call is “an exercise in pure speculation”, and that the reliance on context to assist in identifying the relevance of the “gist” of the conversation is not only a strain, but far more harmful than helpful.[6]

CONTEXT CAN BE HELPFUL…

A key word that can be used to summarize the court’s disagreement is relevance. Evidence is relevant if it is helpful in determining whether a disputed fact in the case is true or not. In this case, among other things, it was critical to determine whether or not the phone call was actually relevant before admitting the evidence to the jury. In short, the majority found the phone call to be relevant; the dissent did not.

Both the majority and dissent agreed that in determining whether evidence is relevant, the judge can look to the surrounding context of the case. What this means is that the judge may consider other facts of the case when deciding if the evidence at hand can be helpful to the jury.

For example, in the case of R v Ferris, the Supreme Court decided that it was not relevant that a police officer overheard the accused say, “I killed David” during a phone-call.[7] This was because there were no other facts to help determine what the accused could have meant - he could have said or meant “The police think I killed David”. Since the Court was unable to determine this, they did not admit the hearsay, as it would not be helpful to the jury in deciding whether the accused did kill the deceased.

… BUT NOT ALWAYS

In Schneider, the majority pointed to the surrounding circumstances and ruled that the context was reliable enough for the brother to have understood what he had heard.

In stark contrast, the dissent concluded the exact opposite. In essence, the dissent chalked the majority’s attempts at reading meaning into the overheard conversation as nothing more than guesswork. The dissent invites us to consider that the brother was actively trying not to listen, intoxicated, and traumatized from having just witnessed Schneider’s attempted suicide. Furthermore, it was a phone call, a conversation which the brother could only (barely) hear one side of. How was the brother to know whether Schneider meant anything else by “I did it” or “I killed her”? What’s more, the brother was unable to recall whether the words “I did it” or “I killed her” occurred as part of a much longer sentence.[8] For all we know, Schneider could have actually said “Everyone is going to think I killed her”. The court could very well have ruled here as they did in Ferris, acknowledging that the meaning of the statement either too difficult or impossible to ascertain, and should thus be excluded.

While the bar for evidence to be deemed relevant is low, the dissent notes that it is still a threshold that must be met – and that it was not met in this case.

CONSEQUENCES, CONSEQUENCES

By allowing the phone call into evidence, the majority of the Supreme Court of Canada may have problematically lowered the bar for admitting statements overheard during a phone call. The dissent in Schneider and the majority in Ferris each remind us of the danger in admitting hearsay evidence that may have multiple meanings. Not only could admitting an ambiguous statement like “I killed her” or “I did it” be unhelpful, but it could also do a great amount of harm.

Manitobans should be particularly attuned to the ways evidentiary mishaps lend to wrongful convictions. Immortalized in Wheat Kings by the Tragically Hip, the wrongful conviction of David Milgaard proves a somber reminder of this risk. More recently, some convictions by now-retired Crown prosecutor George Dangerfield have been overturned due to the tainted evidence used to obtain them. As such, Manitoban courts should be aware of potentially harmful trends in the law of evidence and how these may bolster this tragic pattern in our provincial history.

[1]R v. Schneider, 2022 SCC 34, [Schneider]. [2]Ibid at paras 11, 64. [3]Ibid at para 20. [4]Ibid at paras 90-91. [5]Ibid at para 90. [6]Ibid at para 92. [7]R v Ferris, [1994] 3 SCR 756. [8]Schneider, supra note 1 at para 90.

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The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.