December 28, 2022

By Nick Melchiorre

Does your voice carry? I know mine sure does. I am known for being the opposite a very quiet speaker.

THE CASE

In R. v. Schneider, the accused was charged with second degree murder after the victim’s body was recovered by police in a hidden suitcase following a tip from the accused’s brother. At trial, the Crown sought to rely on hearsay evidence from the brother, who overheard the accused speaking on the phone with his wife.

THE ISSUE

The Supreme Court of Canada considered the fit between the exceptions to the hearsay rule and a conversation which was accidentally overheard.

YOU MIGHT BE WONDERING…

Why is this interesting to a law firm that does not practice criminal law?

A BIT OF LAW

The principles of hearsay are usually identical in all types of litigation whether criminal, civil, family or even labour and employment law.

Criminal cases tend to be at the leading edge of many evidence questions, because of the importance of the cases – personal liberty even outweighs our expectations of privacy that we are concerned about in many other areas.

In Schneider, the Supreme Court of Canada reviews evidence law from first principles.

The three‑part test for admission of all evidence, including party admissions, that trial judges must consider is:

 (a) whether the evidence is relevant;

(b) whether it is subject to an exclusionary rule; and

(c) whether to exercise discretion to exclude it.

If the judge gets to the third step, their exercise of discretion will be entitled to deference from appeal courts and will only be reversed if there is a clear error.

Evidence is relevant if, considering all the other evidence, the at‑issue evidence logically tends to make a fact in issue more or less likely. This threshold is low and judges can admit evidence even if there are doubts about its ultimate reliability, believability, and probative weight. Those factors come into play at the deliberation stage of a hearing, when all of the evidence is considered.

Evidence that is relevant is ordinarily admissible, subject to various exclusionary rules. Hearsay evidence is subject to a general exclusionary rule. The rule in turn is subject to various exceptions. This is starting to sound a lot like an insurance policy or the Income Tax Act. Don’t worry, it gets simpler than those complex documents, which strike fear into the hearts of ordinary lawyers.

Exceptions to the hearsay rule are understandable to most lawyers and, at a general level, to most of our readers – like you.

For example, the concept of discretion might strike you as difficult, until you learn that it is about balancing the value of the evidence in proving a fact (“probative value”) against the prejudicial effect. It makes basic sense that evidence which makes the accused look guilty without good reason (a criminal record for instance) should only be allowed in limited situations. Admissions like “I shot my wife” are more probative, so the prejudice they create is outweighed. Statements of that sort will generally be admitted, with their weight depending on the context.

In Schneider, there was enough context around the brother overhearing the telephone call that it was not very prejudicial but was highly probative. Balancing those meant the judge was correct in admitting the evidence.

Like the “I shot my wife” statement generally, what the accused told his wife on the phone was an admission. What made the context a bit odd was the fact that the witness overhead it accidentally. A lot of evidence comes in an odd context. The accused could have avoided the problem by not telling his wife, or by not speaking on the phone where he might be overheard. Though this is classic hearsay evidence, the very unintended nature of the brother overhearing makes it more reliable and therefore more likely to be admitted.

If your understanding of hearsay evidence comes from watching television, it may help to go back to first principles. Hearsay evidence has three components: (1) a statement (or action) made outside of court by a declarant; (2) which a party seeks to adduce in court for the truth of its content; (3) without the ability of the other party to contemporaneously cross‑examine the declarant.

Largely because of the lack of cross-examination, historically courts excluded hearsay. Over time, exceptions to this rule were created. Exceptions were usually based on surrounding context which gave the evidence more reliability, where better evidence was not available.

Since 1990, we have operated using the “principled approach” in Canada, where hearsay may, in the judge’s discretion, be admitted where it is reliable and necessary to get at the truth (rather than trying to catalogue types of evidence into infinite categories referred to as “pigeonholes”).

Recognized exceptions that had ben developed historically still are applied. This includes the exception for admissions by an accused, which is based upon the assumption that people do not normally make statements that admit facts contrary to their interests, unless those statements are true.

Party admissions are often made in unusual circumstances, so the fact it was accidentally overhead does not alter the presumption of reliability. It is admitted into evidence. The weight to be given to it is determined later based upon normal considerations of frailties and strength.

TAKEAWAYS

  • Party admissions are normally admitted into evidence. This includes admissions that the testifying witness accidentally overheard.
  • Similar principles apply in family law cases, wrongful dismissals, construction claims, and other private disputes.
  • With the prevalence of cell phones, a lot of us are careless about where we have conversations that just a few years ago, we might have made great effort to keep private.
  • Those conversations can and will be used against you, and not just in criminal cases.

WHAT WEILERS LLP CAN DO TO HELP YOU

At Weilers LLP, we pay regular attention to developments in the law of evidence which directly impact our areas of practice. We also stay aware of developments in the law of criminal evidence, which will often be adopted more broadly. The litigation team at Weilers LLP has significant experience in spotting and addressing evidentiary issues and has skills that you may require to exclude unfavourable evidence, or get favourable evidence admitted. If you need lawyers who are passionate about this knowledge, give us a call to see if Weilers LLP are the right lawyers for you.