Supreme Court of Canada

Appeal Heard: December 10, 2021 Judgment Rendered: October 7, 2022 Docket: 39559

Between: His Majesty The King, Appellant, and William Victor Schneider, Respondent

Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

Reasons for Judgment: (paras. 1 to 88) Rowe J. (Wagner C.J. and Moldaver, Côté, Martin, Kasirer and Jamal JJ. concurring)

Joint Dissenting Reasons: (paras. 89 to 97) Karakatsanis and Brown JJ.

Parties

His Majesty The King — Appellant

v.

William Victor Schneider — Respondent

Indexed as: R. v. Schneider

2022 SCC 34

File No.: 39559.

2021: December 10; 2022: October 7.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

on appeal from the court of appeal for british columbia

Headnote

Criminal law — Evidence — Admissibility — Hearsay — Party admission — Accused charged with second degree murder — Crown seeking to adduce at trial hearsay evidence from accused's brother concerning incriminating statements he overheard accused make in telephone conversation with wife — Trial judge admitting brother's testimony into evidence — Accused convicted by jury — Whether trial judge erred in admitting overheard statements into evidence.

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 adduce hearsay evidence from the brother, who overheard the accused speaking on the phone with his wife. The trial judge held a voir dire regarding the admissibility of the brother's testimony, during which the brother testified that he could not remember word‑for‑word what the accused said to his wife but the statements made were along the lines of "I did it" or "I killed her". The trial judge ruled the testimony was admissible. The brother also testified at trial as to several critical conversations he had with the accused regarding the victim and the location of her body prior to the accused's phone call to his wife. The jury convicted the accused of second degree murder.

The accused appealed his conviction, arguing that the trial judge erred in admitting the brother's testimony as to the overheard conversation and in responding to a mid‑deliberation question from the jury. The majority of the Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial. It held that the testimony was not capable of meaning and therefore not relevant and should not have been admitted. In its view, only the micro context, i.e. the words said before and after the overheard admission, was pertinent in determining whether the admission had meaning, and the brother could not recall this context. The dissenting judge would have dismissed the appeal, as she saw all the evidence, including the brother's conversations with the accused leading up to the phone call, as capable of informing the meaning of the overheard words. The Court of Appeal unanimously dismissed the ground pertaining to the question from the jury. The Crown appeals to the Court as of right. In response, the accused argues the trial judge erred in dealing with the jury's mid‑deliberation question.

Held (Karakatsanis and Brown JJ. dissenting): The appeal should be allowed and the conviction restored.

Per Wagner C.J. and Moldaver, Côté, Rowe, Martin, Kasirer and Jamal JJ.: The trial judge did not err in admitting the brother's hearsay evidence. What the brother overheard the accused say on the phone was capable of non-speculative meaning such that it was relevant; it was admissible under the party admission exception to hearsay; and there is no basis to disturb the trial judge's discretionary balancing of probative value against prejudicial effect. In addition, there is substantial agreement with the Court of Appeal that the jury's question was not ambiguous and the trial judge answered it correctly.

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. While a voir dire is often needed when questions arise as to admissibility, it may not be necessary for party admission evidence; whether one is needed for such evidence is to be determined in the circumstances of each case.

First, to determine relevance, a judge must ask whether, in light of all the other evidence, the at‑issue evidence logically tends to make a fact in issue more or less likely. The threshold is low and judges can admit evidence that has modest probative value. Concepts like ultimate reliability, believability, and probative weight have no place when deciding relevance; they are reserved for the finder of fact. The evidentiary context that trial judges can use to determine whether evidence is capable of meaning such that it could be relevant includes evidence that parties have adduced and evidence that a party indicates that they intend to adduce. This proposition applies to party admissions; there is no basis to treat them differently in the determination of relevance. Accordingly, there is no basis in law to differentiate between micro and macro context; all the evidence is capable of informing a judge's analysis of this question. Furthermore, party admissions, like other evidence, are not rendered inadmissible because the witness is equivocal in their testimony. To the extent that a witness's uncertainty or imperfect recollection is related to admissibility (rather than weight), they are properly to be considered by the trial judge when balancing probative value against prejudicial effect. Thus, the fact that a witness cannot recall the exact words used does not mean that such evidence has no relevance. The focus should remain on whether the jury can give meaning to the witness's testimony in a manner that is non‑speculative.

Second, evidence that is relevant is ordinarily admissible, subject to various exclusionary rules. Hearsay evidence is subject to a general exclusionary rule and various exceptions. One such exception is the party admission exception. Party admissions include any acts or words of a party offered as evidence against that party. In criminal trials, a party admission will be evidence that the Crown adduces against an accused. The common law justifies allowing party admissions into evidence on the basis that a party cannot complain of the unreliability of his or her own statements. Unlike many other exceptions, justification for allowing party admissions does not relate to necessity or reliability; accordingly, they are admissible without reference to necessity or reliability.

Third, judges must determine whether they should exercise their discretion to exclude evidence by balancing probative value against prejudicial effect. This weighing has been referred to as a cost benefit analysis. Probative value relates to the degree of relevance to trial issues and the strength of inference that can be drawn from evidence. Prejudicial effect relates to the likelihood that a jury will misuse the evidence. Judges sitting with juries should consider the extent to which the cost associated with the evidence (i.e., the prejudice) can be attenuated by appropriate instructions to the jury as to the use to which the evidence can properly be put. A trial judge's determination that the probative value of evidence outweighs its prejudicial effect is discretionary and should be reviewed with deference.

In the instant case, the trial judge did not err in admitting the brother's testimony as to what he overheard the accused say. There was sufficient context for the jury to give meaning to the words that the brother overheard, such that the evidence overcomes the low threshold for relevance. It is not fatal that the brother was uncertain as to the exact words that he heard the accused say. The equivocal nature of the brother's testimony is a factor for consideration when weighing the probative value against the prejudicial effect. The brother's evidence, if believed by the jury, tends to increase the probability that the accused was responsible for the victim's death. In light of other evidence, the brother's evidence was capable of non‑speculative meaning and relevant. Next, the evidence was that the accused had, by his words, admitted responsibility for the victim's death. This is a party admission, and therefore comes within a recognized exception to the general exclusionary rule for hearsay. Finally, the accused did not demonstrate an error in the trial judge's discretionary balancing of probative value against prejudicial effect, particularly in light of the well‑structured jury instructions on appropriate use of the party admission, which effectively and adequately limited the possibility of prejudicial use.

Per Karakatsanis and Brown JJ. (dissenting): The appeal should be dismissed. There is agreement with the majority's framework for assessing relevance and probative value but disagreement with its application. The evidence of the overheard statements should not have been admitted as a jury could not ascertain their meaning or relevance. On the evidence before the jury, it was impossible to know what the accused said to his wife during the overheard phone call. The brother did not know the words that he heard, he was deliberately trying not to listen to the conversation, he neither participated in the conversation nor heard both sides of it, and he acknowledged that he did not know what was said or recall the substance of what was said. Assessing the relevance of the accused's brother's testimony is therefore an exercise in pure speculation. While context beyond the immediate conversation can inform the meaning of statements made within the conversation, in the instant case, the contextual features beyond the conversation that were relied on were irrelevant and there was insufficient context arising from the conversation itself. In any event, when the potential for misuse is measured against the absence of any significant probative value, the result is that the evidence should have been removed from the jury's consideration.

Cases Cited

By Rowe J.

Applied: R. v. Ferris, [1994] 3 S.C.R. 756; considered: R. v. Ferris (1994), 1994 ABCA 20, 149 A.R. 1; R. v. Bennight, 2012 BCCA 190, 320 B.C.A.C. 195; R. v. Buttazzoni, 2019 ONCA 645; R. v. Hummel, 2002 YKCA 6, 166 C.C.C. (3d) 30; referred to: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688; R. v. Arp, [1998] 3 S.C.R. 339; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475; R. v. Corbett, [1988] 1 S.C.R. 670; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298; R. v. Evans, [1993] 3 S.C.R. 653; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865; R. v. Gordon Gray, 2021 QCCA 882; R. v. Foreman (2002), 169 C.C.C. (3d) 489; R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321; R. v. Lo, 2020 ONCA 622, 152 O.R. (3d) 609; R. v. Scott, 2013 MBCA 7, 288 Man. R. (2d) 188; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908; R. v. Robertson, [1987] 1 S.C.R. 918; R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42; R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v. Reierson, 2010 BCCA 381, 259 C.C.C. (3d) 32; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Miljevic, 2011 SCC 8, [2011] 1 S.C.R. 203.

By Karakatsanis and Brown JJ. (dissenting)

R. v. Ferris (1994), 1994 ABCA 20, 149 A.R. 1; R. v. Arp, [1998] 3 S.C.R. 339.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, ss. 2 "bodily harm", 25(3), 182(b), 229(a)(ii), 235(1).

Authors Cited

Lederman, Sidney N., Michelle K. Fuerst and Hamish C. Stewart. Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. Toronto: LexisNexis, 2022.

Paciocco, David M., Palma Paciocco and Lee Stuesser. The Law of Evidence, 8th ed. Toronto: Irwin Law, 2020.

Vauclair, Martin, et Tristan Desjardins, avec la collaboration de Pauline Lachance. Traité général de preuve et de procédure pénales 2022, 29e éd. Montréal: Yvon Blais, 2022.

Younger, Irving. An Irreverent Introduction to Hearsay. Chicago: American Bar Association, 1977.

Counsel

APPEAL from a judgment of the British Columbia Court of Appeal (Saunders, Goepel and DeWitt‑Van Oosten JJ.A.), 2021 BCCA 41, 400 C.C.C. (3d) 131, [2021] B.C.J. No. 151 (QL), 2021 CarswellBC 232 (WL), setting aside the conviction of the accused for second degree murder and ordering a new trial. Appeal allowed, Karakatsanis and Brown JJ. dissenting.

Mary T. Ainslie, K.C., and Liliane Y. Bantourakis, for the appellant.

Christopher Nowlin, Thomas Arbogast, K.C., and Katherine Kirkpatrick, for the respondent.

Reasons for Judgment

The judgment of Wagner C.J. and Moldaver, Côté, Rowe, Martin, Kasirer and Jamal JJ. was delivered by

Rowe J. —

[ 1 ] This appeal concerns the admissibility of hearsay evidence, being testimony of an overheard phone conversation that included an admission of criminal responsibility. Central to these reasons is the view that the admissibility of such evidence is governed by foundational legal principles, rather than some unique rule. Thus, in deciding this case I will consider relevance, hearsay and the discretionary weighing of probative value against prejudicial effect. It will be necessary, as well, to apply this Court's decision in R. v. Ferris, [1994] 3 S.C.R. 756.

[ 2 ] In deciding this appeal, I will answer three questions. First, whether what the witness overheard had meaning, such that it was relevant to an issue at trial. Second, whether what the witness overheard was admissible under an exception to the general exclusionary rule against hearsay. Third, whether the trial judge appropriately refused to exclude the evidence on the basis that the probative value outweighed the prejudicial effect. I answer each question in the affirmative. What the witness overheard the accused say on the phone was capable of non-speculative meaning such that it was relevant; it was admissible under the "party admission" exception to hearsay; and there is no basis to disturb the trial judge's decision to admit the evidence.

[ 3 ] The police charged the respondent, William Victor Schneider ("accused"), with second degree murder and interfering with a dead body contrary to ss. 235(1) and 182(b) of the Criminal Code, R.S.C. 1985, c. C-46. At trial, the Crown sought to adduce hearsay evidence from the accused's brother, Warren Schneider Jr. ("brother"), who overheard the accused speaking on the phone with his wife. The brother testified that, while he could not recall the precise words the accused said, during that call the accused admitted to killing the victim. This is the evidence at issue. At the close of the Crown's case, the accused pleaded guilty to interfering with the body. Thus, this appeal deals only with the murder charge.

[ 4 ] The trial judge admitted the brother's testimony as to the overheard conversation. The jury convicted the accused of second degree murder. The accused appealed, arguing the trial judge erred, inter alia, by admitting the brother's testimony as to the overheard conversation. A majority of the British Columbia Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial, holding that the at-issue testimony was inadmissible. The dissenting judge would have dismissed the appeal as she would have upheld the trial judge's admission of the evidence and affirmed the conviction.

[ 5 ] The judges of the Court of Appeal all agreed that R. v. Ferris (1994), 1994 ABCA 20, 149 A.R. 1 (C.A.), as affirmed by this Court, governed whether the brother's testimony was admissible. All were of the view that the evidence was admissible if it was capable of meaning and, thus, relevant to an issue at trial. However, the judges disagreed as to what other trial evidence could inform the analysis of whether the evidence had meaning and was, thus, relevant. The majority drew a tight contextual circle around the evidence that could inform meaning. In doing so, the majority held that only the "micro" context, i.e. the words before and after the evidence at issue, was pertinent to meaning. The dissent saw all the evidence as capable of informing the meaning of what the brother overheard.

[ 6 ] The Crown asks this Court to allow the appeal and restore the conviction. I would do so. The trial judge did not err in admitting this part of the brother's evidence. There is no basis in law to differentiate between "micro" and "macro" context when determining whether evidence is capable of meaning and, therefore, relevant. All the evidence is capable of informing a judge's analysis of this question.

[ 7 ] In response to the Crown's as of right appeal, the accused raised an additional issue. He argues that the trial judge erred in dealing with a mid-deliberation question from the jury. On this point, I am in substantial agreement with the unanimous Court of Appeal. The jury's question was not ambiguous and the trial judge did not err in answering it.

I. Facts

[ 8 ] The victim, Ms. Natsumi Kogawa, was reported missing on 12 September 2016. Police issued a news release on 27 September 2016 with a picture showing Ms. Kogawa with an unidentified male at a mall. Police asked for the public's assistance identifying that man. Police then received a tip from the accused's brother as to the whereabouts of Ms. Kogawa's body. That tip led to police recovering Ms. Kogawa's body, two weeks after she was reported missing, in a suitcase hidden in Vancouver's West End. After investigation, police arrested the accused and charged him with second degree murder and interfering with Ms. Kogawa's body after death.

[ 9 ] Between the police news release and his tip to police, the brother had several critical conversations with the accused. I describe these below. As the accused did not testify, the descriptions come entirely from the brother's testimony.

A. 27 September 2016

[ 10 ] On 27 September 2016, the brother's daughter brought the police news release to his attention. She asked if the unidentified man was the accused (her uncle). The brother said yes. He then called the accused to tell him about the police news release. The accused did not respond and hung up the phone.

[ 11 ] The brother went to where the accused was staying and the two went for a walk. During this walk, the accused described his relationship with Ms. Kogawa. He said that he had gone on three dates with her. He told his brother that on the third date they took "medication". The brother testified that the accused appeared "[r]emorsefully sad" during this conversation and that the accused told him "it's true" (A.R., vol. II, at pp. 113-14). The trial judge excluded the brother's evidence as to what he thought the accused meant by this statement. The brother told the accused that they should speak again in the morning.

B. 28 September 2016

[ 12 ] The next morning, the accused told the brother that he intended to purchase heroin and use the drug to die by suicide. The accused asked the brother to be with him; the brother agreed. They both purchased alcohol and the accused purchased heroin. Together, they went to a park.

[ 13 ] After arriving at the park, and before taking heroin, the accused told the brother the location of Ms. Kogawa's body. The brother was to inform the police of the body's location after the accused died by suicide. The accused then injected himself with heroin. However, he did not die.

[ 14 ] After this suicide attempt, the accused asked the brother for his cellphone. The accused called his wife, a non-compellable witness. This call is at the center of this appeal. Although the brother was about 10 feet away and "not actively trying to listen" (C.A. reasons, 2021 BCCA 41, 400 C.C.C. (3d) 131, at para. 42), he overheard portions of the accused's conversation. What the brother can testify to regarding what he overheard is the principal issue in this appeal.

II. Testimony at Issue

A. The Brother's Voir Dire Testimony

[ 15 ] The trial judge held a voir dire regarding the admissibility of the brother's testimony as to what he overheard the accused say to his wife.

[ 16 ] In the voir dire examination-in-chief, the brother testified that the accused began the call by saying "[d]id you see the news of the missing Japanese woman, student?" (A.R., vol. II, at p. 135). He also testified that the accused later said, "I did it" and "I killed her" (ibid.).

[ 17 ] In the voir dire cross-examination, defence counsel confronted the brother with his preliminary inquiry testimony in which he had testified that he "believe[d]" the accused said "I did it" or "I killed her" (A.R., vol. II, at pp. 141 and 147). After seeing the preliminary inquiry transcript, the brother said that "word-for-word" he could not remember what the accused said, but that the statements made were "along those lines" (pp. 138-45).

[ 18 ] The trial judge ruled the testimony was admissible.

B. The Brother's Trial Testimony

[ 19 ] During examination-in-chief, the brother stated that the accused, at the beginning of the phone conversation, said "[d]id you hear the news about the missing Japanese student?" (A.R., vol. II, at p. 170). He testified he did not know the exact words the accused said after, but thought that "[n]ear halfway through the conversation" the accused said that "he did it, he killed her" (ibid.). Although the brother heard only one side of the conversation, the gist of what he overheard was that the accused was taking responsibility for Ms. Kogawa's death. The brother testified that the conversation "wasn't . . . mild" or "loving" (A.R., vol. II, at p. 171).

[ 20 ] During cross-examination, the brother acknowledged that he did not recall the exact words that the accused used. Further, even if he was correct in remembering that the accused said "I did it" or "I killed her", he was unaware what these phrases were said in response to. The brother could not be sure if the phrases were said in response to a question or if they related to Ms. Kogawa's disappearance. The brother testified he was not trying to listen to the conversation, that he was under significant stress at the time, and that he had consumed alcohol.

III. Decisions in Issue

A. The Voir Dire Ruling, 2018 BCSC 2546

[ 21 ] The trial judge took the view that admissibility of the brother's evidence hinged on whether: (1) there was "some evidence" (para. 19, reproduced in A.R., vol. I, at p. 5) that the jury could use to determine the meaning of the words the brother overheard, such that the words were relevant and (2) the probative value of the evidence outweighed the prejudicial effect.

[ 22 ] That the brother was unable to recall the exact words did not make his testimony inadmissible. He testified that the accused said "I killed her" or "I did it" and that he understood the "gist" of the conversation (paras. 16-17). There was sufficient context for the jury to give meaning to the words. The probative value of the evidence outweighed any prejudicial effect; as well, a "strong caution to the jury" could ameliorate any issues associated with the evidence (para. 21). On this basis, the trial judge admitted the evidence.

B. Answer to the Jury's Mid-Deliberation Question and Conviction

[ 23 ] During deliberation, the jury sent a handwritten note to the court setting out the following question (see the reproduction in the appendix to these reasons):

Could you please expand on the definition of bodily harm in Q3 (intent required for murder) versus bodily harm as described in para 109./111 for manslaughter.

* Bodily Harm

Any hurt or injury . . .

Interfers [sic] health . . .

More than just brief/ minor.

* Concept of Bodily Harm

That the accused knows is "likely" to cause death and reckless . . .

(A.R., vol. IV, at p. 215 (emphasis in original); see also C.A. reasons, at para. 115.)

[ 24 ] The references to "Q3" and "para 109./111" are to the following passages in the jury instructions:

[109] The criminal fault in manslaughter is the commission of the unlawful act which is objectively dangerous in the sense that a reasonable person, in the same circumstances as the accused, would recognize that the unlawful act would subject another person to the risk of bodily harm. "Bodily harm" is any hurt or injury that interferes with a person's health or comfort and is more than just brief or of a minor nature.

[110] In the offence of murder there is in addition to the unlawful act, the ingredient of either an intention to cause death or an intention to cause bodily harm that the accused knows is likely to cause death and is reckless as to whether death ensues. These are the legal differences between the offences of second degree murder and manslaughter.

[111] Therefore, what distinguishes murder from manslaughter is the mental state, or what we describe in criminal law as the intent of the person causing the death.

[Q3: Did Mr. Schneider Have the Intent Required for Murder?]

[132] To prove that Mr. Schneider had the intent required for murder, the Crown must prove beyond a reasonable doubt one of two things, either:

1. that Mr. Schneider meant to cause Ms. Kogawa's death; or

2. that Mr. Schneider meant to cause Ms. Kogawa bodily harm that he knew was likely to cause her death and was reckless whether death ensued or not.

[133] In other words, you must decide whether the Crown has proved beyond a reasonable doubt either that Mr. Schneider meant to kill Ms. Kogawa, or that Mr. Schneider meant to cause Ms. Kogawa bodily harm that he knew was so dangerous and serious it was likely to kill Ms. Kogawa and proceeded despite his knowledge of that risk. [Emphasis deleted.]

(See C.A. reasons, at paras. 116-17.)

[ 25 ] The trial judge conferred with counsel regarding the jury's question. She asked if they thought that she should provide the jury with an expanded definition of intent. Crown counsel replied that the jury "seem[ed] to be caught up that with bodily harm there must be some injury or bruising or something of that nature" (A.R., vol. III, at p. 327). Defence counsel recommended that the judge provide to the jury the definition of "bodily harm" set out in s. 2 of the Criminal Code. The judge agreed with this and indicated that initially she had misread the jury's question. Although Crown counsel went on to suggest an expanded definition of intent, defence counsel was firm that this was not what the jury was asking about. The trial judge decided that she would "wait until [they] get there" on intent (A.R., vol. III, at p. 331). She called in the jury and twice read the definition of "bodily harm" from s. 2 of the Criminal Code. The jury asked no further questions and convicted the accused of second degree murder.

C. British Columbia Court of Appeal, 2021 BCCA 41, 400 C.C.C. (3d) 131

[ 26 ] The accused appealed his conviction on three grounds. Two are relevant to the appeal before this Court. He asked the Court of Appeal to consider if the trial judge erred:

(1) by admitting the brother's testimony regarding the overheard telephone conversation ("Admissibility Issue"); and

(2) in responding to the question from the jury ("Jury Question Issue").

[ 27 ] The Court of Appeal unanimously dismissed the Jury Question Issue but divided on the Admissibility Issue. The majority held that the brother's testimony as to the overheard telephone conversation was inadmissible; DeWitt-Van Oosten J.A., in dissent, held that the trial judge did not err in admitting this testimony.

(1) The Admissibility Issue

[ 28 ] The Court of Appeal judges agreed that the brother's testimony was admissible if: (1) it was relevant; and (2) the probative value outweighed the prejudicial effect. However, the majority and dissent differed as to what evidence could be considered in determining relevance. The majority held that only "micro" context — i.e., the words immediately before and after the at-issue evidence — was pertinent to whether the evidence had meaning and was relevant. Because the brother could not recall such context, the majority held the evidence was not capable of meaning and was therefore irrelevant and inadmissible.

[ 29 ] Justice DeWitt-Van Oosten, in dissent, would have held that trial judges can consider all the evidence when determining if the words had meaning and, thus, are relevant. In this case, there was more than sufficient context, including the conversations between the accused and his brother leading up to the phone call, for a jury to properly assess the meaning of what the brother overheard.

[ 30 ] Considering the next step of admissibility, DeWitt-Van Oosten J.A. held the trial judge's weighing of probative value against prejudicial effect was entitled to deference. Further, any prejudicial effect of the evidence was adequately addressed by the strong caution given to the jury.

(2) The Jury Question Issue

[ 31 ] The accused argued that the trial judge erred in two ways: first, by failing to ask the jury for clarification of the question, as it was ambiguous; and, second, by failing to answer it correctly. The Court of Appeal unanimously rejected these arguments. In its view, the question was not ambiguous and the trial judge's answer was adequate.

IV. Issues on Appeal

[ 32 ] The Crown appealed the Court of Appeal's decision on the Admissibility Issue as of right. The accused raised the Jury Question Issue as an alternative basis on which this Court could uphold the Court of Appeal's order for a new trial.

V. Analysis

[ 33 ] I address this appeal in two parts. First, I address the Admissibility Issue. I conclude that the trial judge did not err in admitting the brother's testimony. Second, I address the Jury Question Issue. I conclude that the trial judge did not err in responding to the jury's question.

A. Admissibility Issue

[ 34 ] The Court of Appeal focused on the fact that the evidence is a party admission. While being mindful of this, my analysis situates the Admissibility Issue in the broader context of the law of evidence. I do so because the analysis governing admissibility of party admissions must be understood within the framework of general principles of evidence. In my view, this framework should guide analysis here, rather than having this case decided by reference to factors peculiar to party admissions.

[ 35 ] I proceed first by describing what I consider to be settled law as to the general procedure for determining admissibility of evidence at a criminal trial, including party admissions. I then apply this framework to the circumstances of this case.

(1) Legal Framework for Admissibility of Evidence at a Criminal Trial

[ 36 ] Evidence that is relevant to an issue at trial is admissible, as long as it is not subject to an exclusionary rule and the trial judge does not exercise their discretion to exclude it (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 26; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 105; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 19). Thus, there is a three-part test for the admission of any evidence: (a) Is the evidence relevant? (b) Is it subject to an exclusionary rule? (c) Should the trial judge exercise their discretion to exclude it?

[ 37 ] When questions arise as to the admissibility of evidence, a voir dire is often needed. That said, this Court has noted in obiter that a voir dire may not be necessary for party admission evidence; whether one is needed for such evidence is to be determined in the circumstances of each case (R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 28). In this case, a voir dire was held, and nothing turns on whether it was necessary.

(a) Determine Whether the Evidence Is Relevant to an Issue at Trial

[ 38 ] The first step in determining admissibility is considering whether the evidence is relevant. At this stage, this is often referred to as "logical relevance". However, I will use the word "relevance" throughout these reasons, as it is adequate to convey the concept. Relevance is the minimum threshold that must be met for evidence to be admitted.

[ 39 ] To determine relevance, a judge must ask whether the evidence tends to increase or decrease the probability of a fact at issue (R. v. Arp, [1998] 3 S.C.R. 339, at para. 38; R. v. Mohan, [1994] 2 S.C.R. 9, at pp. 20-21; Morris v. The Queen, [1983] 2 S.C.R. 190, at p. 201). The threshold is low and judges can admit evidence that has modest probative value (R. v. Corbett, [1988] 1 S.C.R. 670, at p. 714). Concepts like ultimate reliability, believability, and probative weight have no place when deciding relevance; they are reserved for the finder of fact.

[ 40 ] This leads to the issue that divided the court below: what evidentiary context can a trial judge use to determine whether the evidence is capable of meaning, such that it could be relevant? Justice Charron addressed this in R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at para. 32:

Relevance can only be fully assessed in the context of the other evidence at trial. However, as a threshold for admissibility, the assessment of relevance is an ongoing and dynamic process that cannot always await the completion of trial. The evidence must be such that it could rationally affect the assessment of a fact in issue. . . .

To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to "increase or diminish the probability of the existence of a fact in issue" . . . .

[ 41 ] As Charron J. explained, trial judges can consider relevance having regard to evidence that parties have adduced, as well as evidence that a party indicates that they intend to adduce. The judge need not await the conclusion of the trial to assess relevance; it is an ongoing and dynamic process.

[ 42 ] This general proposition applies to party admissions. There is no basis to treat party admissions differently in the determination of relevance. At this stage in the analysis, trial judges do not restrict their consideration to what the witness immediately said before or after the at-issue evidence (i.e., "micro" context). They can consider all the evidence, or what has been referred to as "macro" context. Accordingly, there is no basis in law to differentiate between micro and macro context; all the evidence is capable of informing a judge's analysis of this question.

[ 43 ] In making this point, I am mindful that evidence does not need to be unequivocal to be relevant. In R. v. Evans, [1993] 3 S.C.R. 653, Sopinka J. underlined that while questions of ultimate reliability, credibility, and weight are assessed by the trier of fact, such concerns are not relevant when determining admissibility. Ultimately, the question is whether the evidence, if believed, tends to make a fact in issue more or less likely.

[ 44 ] Of course, parties are not permitted to "bootstrap" their argument on the admissibility of a party admission to any and all evidence. The party seeking to admit the proposed evidence should limit themselves to evidence that is properly before the court or will be adduced — not to speculative evidence. Asking a trial judge to consider evidence that will never be adduced, or is entirely unreliable, cannot ground relevance.

[ 45 ] In summary, judges determine relevance by asking whether, in light of all the other evidence, the at-issue evidence logically tends to make a fact in issue more or less likely. This standard applies equally to party admissions. Evidence will not be rendered irrelevant merely because the witness is equivocal in their testimony. The focus should remain on whether the jury can give meaning to the witness's testimony in a manner that is non‑speculative.

(b) Determine Whether the Evidence Is Subject to an Exclusionary Rule

[ 46 ] Evidence that is relevant is ordinarily admissible, subject to various exclusionary rules. Hearsay evidence, which is at issue in this appeal, is subject to an exclusionary rule and various exceptions. One such exception is the party admission exception, which was applied in this case.

[ 47 ] 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 for the opposing party to cross-examine the declarant at the time the statement was made (R. v. Khelawon, at para. 56; R. v. Smith, [1992] 2 S.C.R. 915, at pp. 924-25).

[ 48 ] Historically, the common law excluded hearsay evidence (Smith, at pp. 924-25; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 153; R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 12; Khelawon, at para. 2). That practice developed over centuries, producing a body of exceptions to the exclusionary rule (Khelawon, at para. 42; Mapara, at para. 13; Starr, at para. 153). These traditional exceptions were developed to avoid the exclusion of evidence that was necessary for the truth-finding function and likely reliable enough for admission (Khelawon, at paras. 42-43).

[ 49 ] However, excluding hearsay in some circumstances impeded rather than assisted accurate fact finding (Khelawon, at para. 2; Mapara, at para. 14). Over time, courts created exceptions to the hearsay exclusionary rule, without articulating the reasons for the exceptions in a principled way (Khelawon, at paras. 3 and 42; Mapara, at para. 12). Some exceptions were broadly construed; others narrowly. Various difficulties developed (Mapara, at para. 13).

[ 50 ] In response, this Court developed a principled approach to hearsay in R. v. Khan, [1990] 2 S.C.R. 531 (Mapara, at para. 12). This was intended to arrest the development of a mass of exceptions to the rule (Khelawon, at para. 42; Mapara, at para. 12). Under the principled approach, evidence that does not fall within a traditional exception to the hearsay rule may still be admissible if there is sufficient necessity and reliability (Khelawon, at para. 2; Mapara, at paras. 14-15).

[ 51 ] In Mapara, the Court provided that recognized exceptions remain presumptively operative (para. 15, as confirmed in Khelawon, at para. 42; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 37; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 73; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 23). Evidence coming within these exceptions can be admitted by the trial judge without the need to conduct a separate reliability analysis under the principled approach. If, however, there is reason to believe that the traditional exception would result in an undue risk of admission of unreliable evidence, the principled approach can be used to modify or supplement the traditional exception.

[ 52 ] The exception at issue in this case is a party admission. These include any "acts or words of a party offered as evidence against that party" (Paciocco, Paciocco and Stuesser, at p. 191 (emphasis omitted); see also Lederman, Fuerst and Stewart, at ¶6.210). Party admissions are a traditional exception to the hearsay exclusionary rule.

[ 53 ] In criminal trials, a party admission will be evidence that the Crown adduces against an accused. As explained in Evans, the common law justifies allowing party admissions into evidence on the basis that a party cannot complain of the unreliability of his or her own statements (pp. 663-64). The traditional exception for party admissions does not require consideration of the necessity and reliability criteria demanded by the principled approach (Evans, at p. 664).

[ 54 ] This was confirmed by Charron J. in Khelawon: "Some of the traditional exceptions stand on a different footing, such as admissions from parties . . . . [T]he criteria for admissibility are not founded on the twin grounds of reliability and necessity" (para. 43). "Party admissions are not admitted for their reliability; they are admitted because the party against whom they are tendered should not complain if their own words are used against them" (Lederman, Fuerst and Stewart, at ¶6.208). See also R. v. Robertson, [1987] 1 S.C.R. 918.

[ 55 ] Accordingly, party admissions are admissible without reference to necessity and reliability (R. v. Gordon Gray, 2021 QCCA 882, at paras. 27-28; R. v. Foreman (2002), 169 C.C.C. (3d) 489, at paras. 34, 38; R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321, at paras. 38-40; R. v. Lo, 2020 ONCA 622, 152 O.R. (3d) 609, at paras. 83-85; R. v. Scott, 2013 MBCA 7, 288 Man. R. (2d) 188, at para. 29).

[ 56 ] I digress briefly to underline a point. The party admission exception to the hearsay rule should not be confused with other exceptions that bear some similarity, for example a declaration against interest. A declaration against interest must have been made against the interest of the declarant. A party admission, by contrast, does not need to have been made against the declarant's interest at the time it was made (Lederman, Fuerst and Stewart, at ¶6.208). In this case, I use "party admission" according to the definition above.

[ 57 ] In this appeal the party admission was something the accused said, that the witness overheard, and that the Crown tendered as evidence of the accused's guilt (Evans, at p. 664; Paciocco, Paciocco and Stuesser, at p. 191). The party admission exception applies to this evidence.

[ 58 ] A trial judge's determination that evidence is hearsay but falls within an exception from the general exclusionary rule is a question of law, reviewable on a standard of correctness.

(c) Determine Whether to Use Judicial Discretion to Exclude the Evidence

[ 59 ] Finally, judges must determine whether they should exercise their discretion to exclude evidence by balancing probative value against prejudicial effect. Judges sitting with juries should consider the extent to which any prejudicial effect can be attenuated by appropriate instructions to the jury as to the use to which the evidence can properly be put. In addition, evidence can be excluded where there was a significant unfairness associated with obtaining it, such that it would render the accused's trial unfair (Mohan; Paciocco, Paciocco and Stuesser, at pp. 47-48; Lederman, Fuerst and Stewart, at ¶¶2.75-2.77; Vauclair and Desjardins, at pp. 905-6). No such consideration arises in the circumstances of this case.

[ 60 ] Probative value relates to the degree of relevance to trial issues and the strength of inference that can be drawn from evidence (R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 26, as confirmed in R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 85). Prejudicial effect relates to the likelihood that a jury will misuse the evidence (R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 60, citing R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 70).

[ 61 ] As noted, the "cost" associated with the evidence (i.e. the prejudice) can be attenuated by appropriate jury instructions. Proper instructions can effectively equip juries with an understanding of how to properly assess evidence (R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 44; R. v. Reierson, 2010 BCCA 381, 259 C.C.C. (3d) 32, at para. 28).

[ 62 ] A trial judge's determination that the probative value of evidence outweighs its prejudicial effect is discretionary and should be reviewed with deference (R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 27).

(2) Application of the Legal Framework to the Circumstances of This Case

(a) The Evidence Was Relevant

[ 63 ] The brother's testimony regarding the overheard conversation was relevant. First, there was sufficient context for the jury to give meaning to the words that the brother overheard, such that the evidence overcomes the low threshold for relevance. Second, the equivocal nature of the brother's testimony goes to weight, not relevance.

[ 64 ] The trial judge needed to determine whether, on the basis of all the evidence, the jury could give meaning (in a way that was not speculative) to what the brother testified that he overheard. The Court of Appeal divided on whether the trial judge was correct to use all the evidence to make this determination. I would resolve this as follows: the trial judge was correct in using all the evidence to determine whether the brother's testimony could be given non-speculative meaning by the jury.

[ 65 ] I turn now to Ferris, the decision of this Court that the trial judge and Court of Appeal below agreed governed the admissibility of the evidence.

[ 66 ] Ferris concerned admissibility of hearsay evidence that the Crown sought to adduce as a party admission. Police arrested Mr. Ferris for murder and brought him to the station. Mr. Ferris asked the officer to call the victim's sister and tell her about the arrest. When the officer returned to say that he had left a voicemail, Mr. Ferris made statements; the officer only heard one side of the exchange. The officer testified that he heard Mr. Ferris say: "I killed David. I killed David. Why? Why did I do it?" or words to that effect. The Crown sought to tender this testimony as a party admission of Mr. Ferris.

[ 67 ] The Alberta Court of Appeal overturned the trial decision, holding that a properly instructed jury would be unable to ascribe meaning to the words the officer overheard. Words that were incapable of meaning did not meet the minimum threshold of relevance.

[ 68 ] The Court of Appeal explained that the phrase "I killed David" could have been an admission. It also could have been part of a reply to the question "what [do] the police think [you] did?" (para. 22). In that scenario, the accused would be saying: "They think I killed David." Viewed in this light, the phrase could be self-exculpatory, not incriminating. Without micro context, the phrase was too ambiguous to be admitted and it was an error to do so.

[ 69 ] This Court upheld the Court of Appeal's decision in Ferris in the result. In a short, oral judgment, Sopinka J. stated that even if the evidence had relevance, its meaning was "so speculative as to be of minimal probative value", and its admission therefore created "significant dangers of misuse by the jury" (reproduced in Ferris (C.A.), at para. 3).

[ 70 ] The trial evidence in Ferris was dissimilar to the evidence in this case. In Ferris, the accused and the police officer were strangers. There was nothing at all like the circumstances, sequence of events, and intimate conversations that occurred in the days prior to the phone call in the present case. In Ferris, a jury might reasonably have found the phrase to be self-exculpatory. In contrast, the present case has the accused, who had just admitted to his brother that he had told the victim's location in the suitcase, calling his wife following his suicide attempt, with the phone call occurring after days of conversations about the accused's relationship with the victim.

[ 71 ] Again, we must bear in mind the difference between relevance and ultimate reliability. How well the brother could recall the words said by the accused relates to the latter, which is a question for the jury to decide. The issue at the admissibility stage is whether the jury could give the words non-speculative meaning.

[ 72 ] Ferris is good law, but must be carefully read. Indeed, "[t]ranslation] '[e]xclusion of a partial conversation is . . . not automatic and the analysis is above all a contextual one'" (Vauclair and Desjardins, at p. 885 (translated from French)).

[ 73 ] Bennight is factually somewhat similar to this case. The British Columbia Court of Appeal allowed testimony from a corrections officer who could not recall the particular words that the offender had used, but could recall the gist of what was said. The court held that the evidence of the gist was relevant and admissible.

[ 74 ] In Buttazzoni, the Ontario Court of Appeal determined that the trial judge properly admitted "recounted utterances [that] were described as 'almost verbatim'", and also properly admitted recounted utterances that were not necessarily verbatim but captured the "essence" of what was said (para. 47). Buttazzoni supports the proposition that evidence of the gist of a party admission is not irrelevant simply because it lacks a word-for-word recollection.

[ 75 ] The accused in Hummel argued on appeal that the trial judge improperly admitted testimony that suggested he said "I hear a woman's voice calling my name" and "from a grave" (para. 8). The Yukon Court of Appeal held that the testimony was properly admitted as the party admission exception did not require the exact words of an admission, only the "substance" of the statement. The evidence therefore had meaning and was not so speculative as to be irrelevant.

[ 76 ] These decisions illustrate that Ferris should not be understood as standing for the proposition that incomplete recollection of a party admission leads to exclusion of such evidence or that it can only be given non-speculative meaning where the micro context is established. Instead, trial judges must examine all the evidence and determine whether the jury can give the evidence a non-speculative meaning.

[ 77 ] Although he could not remember the exact words the accused said, the brother's testimony was that he overheard a phone call in which the accused admitted to killing Ms. Kogawa. The brother's recollection of the gist of the conversation, taken in light of the conversations that preceded the phone call, provided sufficient context for the jury to give meaning to the words. The jury could conclude from this evidence, if they accepted the testimony, that the accused was admitting to killing Ms. Kogawa.

(b) The Evidence Was Hearsay, but Subject to the Party Admissions Exception to the Exclusionary Rule

[ 78 ] The Crown adduced the brother's evidence for the purpose of showing that the accused admitted to killing Ms. Kogawa. This evidence was hearsay and, thus, inadmissible under the general exclusionary rule. However, the evidence falls within the party admission exception to the exclusionary rule for hearsay. The accused's alleged statements are ones that a party (the accused) made, and which the Crown sought to adduce against that party (the accused). For the reasons described above, such a party admission is admissible without the need to satisfy necessity or reliability requirements. There is no dispute about this point.

(c) In Light of the Comprehensive Jury Instructions, the Trial Judge Did Not Err by Admitting the Evidence

[ 79 ] The balancing of probative weight against prejudicial effect can be critical in deciding the admissibility of a party admission. This is a discretionary decision by the trial judge. Such decisions are owed deference on review. In my view, the trial judge's decision to admit the evidence was appropriate.

[ 80 ] The brother's testimony contained weaknesses. He was unsure of the particular words that the accused said. He testified that he was not trying to listen and that he only heard one side of the conversation. He acknowledged that, even if he was correct in remembering that the accused said "I did it" or "I killed her", he could not be sure what the phrases were said in response to.

[ 81 ] With respect to the prejudicial effect, I agree with Arbour J., dissenting, but not on this point, that juries are likely to give significant weight to confession-like evidence (R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 36). With respect to probative value, the brother's evidence, if believed, tends to increase the probability that the accused was responsible for the victim's death.

[ 82 ] When balancing the probative value and prejudicial effect, the trial judge noted "[t]he prejudicial effect can be ameliorated by a strong caution to the jury about what use can be made of the evidence, including what weight to give it" (para. 21).

[ 83 ] The trial judge provided the jury with clear and effective instructions on proper use of the brother's testimony. The instructions gave the jury the guidance needed to weigh the evidence in accordance with its probative value and prejudicial effect. The jury was specifically advised about why the brother's testimony might be unreliable, including: that the accused's words were reported second-hand by the brother; that the brother did not hear all of what was said; and that the brother only heard one side of the conversation. The jury was directed to consider these limitations, as well as its observations of the witness, in deciding how much weight to give to that testimony.

[ 84 ] In light of the foregoing, the trial judge did not err in admitting the brother's testimony as to what he overheard the accused say.

B. Jury Question Issue

[ 85 ] I am in substantial agreement with the reasons of the Court of Appeal on the Jury Question Issue. The jury's question was not ambiguous and the trial judge answered it correctly. Notwithstanding this, I address the arguments made to this Court that the trial judge erred.

[ 86 ] First, the accused argues on appeal that the jury question demonstrated confusion as to the intent needed for murder and that needed for manslaughter. However, the accused's counsel at trial (not counsel on this appeal) indicated to the trial judge that the jury's question was directed at the definition of "bodily harm" in the context of the manslaughter instruction. The jury's question referred to "bodily harm" and the distinction between how that term was used in the manslaughter instruction compared to the murder instruction. The question did not express confusion about the mental elements of murder versus manslaughter. The trial judge's response was therefore correct.

[ 87 ] Second, there is no merit to the accused's argument that the definition of "bodily harm" in s. 2 of the Criminal Code does not apply to s. 229(a)(ii), which defines murder. The meaning of the term "bodily harm" as used in both ss. 229(a)(ii) and 2 of the Criminal Code is the same (R. v. Miljevic, 2011 SCC 8, [2011] 1 S.C.R. 203, at para. 17; R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 83).

VI. Conclusion

[ 88 ] I would allow the Crown's appeal, set aside the order of the Court of Appeal, and restore the accused's conviction for second degree murder.

Joint Dissenting Reasons

The following are the reasons delivered by

Karakatsanis and Brown JJ. (dissenting) —

[ 89 ] We would dismiss this appeal. We do not disagree with our colleagues' framework for assessing relevance and probative value. What divides us is its application. On our analysis, the evidence of the overheard statements should not have been admitted as a jury could not ascertain their meaning or relevance.

[ 90 ] On the evidence before the jury, it was impossible to know what Schneider said to his wife during the overheard phone call. The witness, Schneider's brother, did not know the words that he heard, he was deliberately trying not to listen to the conversation, he neither participated in the conversation nor heard both sides of it, and he acknowledged that he did not know what was said or recall the substance of what was said. All that the brother testified was that he had some "impression" from the call that the accused was "taking responsibility". He was unable to say the impression was based on words the accused used — it was just an impression.

[ 91 ] At trial, the Crown sought to tender the words overheard by Schneider's brother as an admission of responsibility for the death of the victim, Natsumi Kogawa. In closing submissions, the Crown described the brother as having "understood the gist of the conversation to be that [the accused] was taking responsibility for the death of Natsumi Kogawa". The Crown's own gloss on this evidence, therefore, is that what the jury was asked to find was an "understanding" of a "gist" of an impression.

[ 92 ] Assessing the relevance of Schneider's brother's testimony (including the Crown's own interpretive gloss thereon) is an exercise in pure speculation. The Crown's reliance on "context" to assign meaning to the overheard statements does not stand up. First, it relies on features that are wholly extrinsic to the phone call — and extrinsic not merely in the sense of "macro" rather than "micro", but wholly outside the conversation that the brother purportedly overheard. Second, what little context did arise from within the conversation — namely, that the accused commenced the call by mentioning Ms. Kogawa — was consistent with innocent explanations of whatever the accused may have said during the phone call.

[ 93 ] Our colleagues overstate the significance of the Court of Appeal's references to the "macro" and "micro" contexts (Rowe J.'s reasons, at paras. 6, 28 and 42). These statements were not intended to suggest that only the words immediately before and after the admission can be considered in deciding relevance. Rather, they were shorthand descriptions of the Court of Appeal majority's view of the facts: that, in this case, no admissible context was present that could give meaning to the overheard statements.

[ 94 ] In our view, the Crown relies on "context" that is not only irrelevant, but which augments the prejudicial effect of admitting the statements even if they were relevant. The jury may have focused on this context — the accused's conversations with his brother about Ms. Kogawa — to the exclusion of considering whether the overheard phone call had any independent probative value. As Ferris (C.A.) warned:

There would be an enormous temptation for any trier of fact to look at the outside evidence that tends to implicate the accused in the murder, use those facts to conclude that the accused probably committed the crime, and from that conclusion determine that when the accused said "I killed David" he must have been making an admission.

This very concern arises in the instant case where the jury was left to assess the logical relevance of a "gist", unaccompanied by any recollection of what was said, or at least any recollection of the substance of what was said, against a backdrop of an abundance of other incriminating evidence which the jury was cautioned that it could use to interpret the overheard words.

[ 95 ] The trial judge did not explicitly identify any dangers of admitting the evidence of the overheard statements or how they might impact the fairness of the trial. She simply concluded that "[t]he prejudicial effect can be ameliorated by a strong caution to the jury about what use can be made of the evidence, including what weight to give it" (para. 21). This conclusion does not demonstrate that she squarely addressed, let alone weighed, the prejudicial effect of this evidence. The concern is not merely one of weight — it is one of relevance as a threshold matter. Had the trial judge correctly found that the overheard statements were incapable of non-speculative meaning, there would be no need to even consider the prejudicial effect.

[ 96 ] We conclude that the evidence of the overheard statements should not have been admitted. We acknowledge that the threshold for logical relevance is low. But it is still a threshold, in that it requires non-speculative probative value. With respect, the majority's analysis effectively eliminates any threshold, because it would allow highly prejudicial evidence to be admitted against an accused where witnesses can say only that their "impression" was that the accused was taking responsibility for a crime. This is not what the law requires and is not consistent with Ferris.

[ 97 ] We would therefore dismiss the appeal.

Appendix

Appeal allowed, Karakatsanis and Brown JJ. dissenting.

Solicitor for the appellant: Attorney General of British Columbia, Vancouver.

Solicitors for the respondent: DG Barristers, Vancouver.