The Brother’s Ear: Speculation, Weak Instruction, and Other Shortcomings in Schneider by Lisa Haydey and Laraib Khaliqdina

The Brother’s Ear:

Speculation, Weak Instruction, and Other Shortcomings in Schneider

Can a phone conversation between a man and his wife, overheard in part by the man’s brother, be admitted as evidence that the man committed murder? What if the brother who overheard the conversation had been drinking, was under extreme stress, and recalled two different versions of what was said?

This was the complex issue faced by Canada’s highest court, the Supreme Court of Canada (SCC), in R v Schneider. William Schneider was charged with the second- degree murder of Natsumi Kogawa. Previously, Schneider’s brother had recognized the accused in a news release which sought help identifying a man photographed with Kogawa, who was reported missing. The next day, the brother visited Schneider to discuss the news release and witnessed Schneider attempting a fatal heroin overdose, which he survived. Schneider then shared the location of Kogawa’s body and walked ten feet away to telephone his wife. The brother could not recall the exact words Schneider used, but he believed that at one point, Schneider said something like “I did it” or “I killed her.”

At trial, the brother’s testimony was admitted and Schneider was convicted of second- degree murder. However, the Court of Appeal overturned this decision, ordering a new trial that excluded testimony from evidence. The case then went to the SCC. In a split seven-two judgment, the Court decided to admit the testimony and reinstate the trial court’s conviction.

In this blog, we will respectfully argue that the majority’s decision to admit the brother’s testimony was flawed at each step of the analysis: at step one, the evidence was speculative and should not have met the relevancy threshold; at step two, the Court should have considered the reliability of the testimony; and at step three, the jury instructions were too weak to counteract the prejudicial effect of admitting the evidence. Accordingly, we contend that the trial judge erred in including the brother’s testimony.

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Laraib Khaliqdina and Lisa Haydey

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