COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Schneider,

2021 BCCA 41

Date: 20210202

Docket: CA46000

Between:

Regina

Respondent

And

William Victor
Schneider

Appellant

Before:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Goepel

The Honourable Madam Justice DeWitt‑Van Oosten

On appeal from: An
order of the Supreme Court of British Columbia, dated October 19, 2018
(
R. v. Schneider
, Vancouver Docket 27343‑2).

Counsel for the Appellant (via videoconference):

C.J. Nowlin

Counsel for the Respondent (via videoconference):

G.D. McKinnon, Q.C.

Place and Date of Hearing:

Vancouver, British
  Columbia

October 16, 19, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

February 2, 2021

Dissenting Reasons by:

The Honourable Madam Justice DeWitt‑Van Oosten

Written Reasons by:

The Honourable Mr. Justice Goepel (Page 49; para. 151)

Concurred in by:

The Honourable Madam Justice Saunders

Summary:

A jury found the appellant
guilty of second degree murder. He appeals his conviction on the grounds that
the trial judge: (1) erred in admitting an overheard telephone
conversation; (2) failed to instruct the jury on the concurrence
principle; and (3) failed to seek clarification on an ambiguous question
posed by the jury, which was then answered incorrectly. The appellant contends
that these errors, individually or cumulatively, warrant a new trial.

Held: Appeal from conviction
allowed and new trial ordered.

Per Goepel and Saunders
JJ.A.: The overheard telephone conversation should not have been admitted into
evidence. Its admission amounts to reversible error and warrants a new trial.
The utterances were not logically relevant, as they lacked sufficient context
for the jury to be able to determine their meaning. Agree with and adopt the
reasons of DeWitt‑Van Oosten J.A. dismissing the second and third grounds
of appeal.

Per DeWitt-Van Oosten J.A.
(dissenting in part): The appeal from conviction should be dismissed. The
overheard telephone conversation was properly admitted. It was logically
relevant to an issue at trial and there is no principled basis on which to
interfere with the judges assessment of probative value and prejudicial
effect. On the second and third grounds of appeal, this case did not require an
instruction on the concurrence principle and the judge correctly answered the
jurys question on the definition of bodily harm as applicable to the
offences of murder and manslaughter.

Table of Contents

Paragraph Range

Reasons for Judgment of the Honourable Madam Justice DeWitt‑Van
  Oosten:

[1] - [150]

INTRODUCTION

[1] - [5]

BACKGROUND

[6] - [24]

A.
  Overview of Evidence

[6] - [18]

B. Crown and Defence Theories

[19] - [24]

ISSUES ON APPEAL

[25] - [26]

DISCUSSION

[27] - [149]

A. Did the Trial Judge Err in Admitting the Overheard Conversation?

[28] - [104]

The Evidence

[30] - [45]

Positions of Parties on Admissibility

[46] - [50]

Legal Principles

[51] - [104]

B. Should the Charge Have Included a Concurrence Instruction?

[105] - [114]

C. Did the Judge Mishandle a Question from the Jury?

[115] - [149]

DISPOSITION

[150] - [150]

Reasons for Judgment of the Honourable Mr. Justice Goepel:

[151] - [208]

INTRODUCTION

[151] - [153]

BACKGROUND

[154] - [161]

DISCUSSION

[162] - [207]

A.
  Overview

[162] - [164]

B. Standard of Review

[165] - [165]

C. The Ferris Decision

[166] - [175]

D. Are the Words Capable of Being an Admission

[176] - [207]

DISPOSITION

[208] - [208]

Reasons for Judgment of the Honourable Madam Justice
DeWitt‑Van Oosten:

INTRODUCTION

[1]

Natsumi Kogawa was a 30‑year‑old Japanese citizen who came
to Canada on a student visa. She was reported missing on September 12, 2016.
Tragically, her body was located approximately two weeks later, folded into a
suitcase hidden in some bushes in Vancouvers West End.

[2]

Following a jury trial, the appellant was convicted of second degree
murder and interfering with Ms. Kogawas body after her death, contrary to
ss. 235(1) and 182(b) of the
Criminal Code
,

R.S.C. 1985,
c. C‑46.

[3]

The appellant pleaded guilty to the second of these offences after the
Crown closed its case. He admitted to being with Ms. Kogawa when she died
and to disposing of her body. However, he disputed the Crowns contention that
he killed her.

[4]

The appellant says the murder verdict should be set aside and a new
trial ordered. He contends that the trial judge erred in admitting parts of an
overheard telephone conversation; erred in her instructions to the jury; and
mishandled a question posed by the jury.

[5]

For the reasons that follow, I would dismiss the appeal.

BACKGROUND

A.

Overview of Evidence

[6]

On September 28, 2016, Natsumi Kogawas naked body was found in a
suitcase in Vancouvers West End. The suitcase was in some bushes on an
unoccupied property that borders Nicola and Davie Streets. The area was
overgrown and neglected, but passable.

[7]

An autopsy revealed that Ms. Kogawa had two medications in her
body: Zopiclone (typically used as a sleeping medication) and Lorazepam (anti‑anxiety
medication with a sedative effect). When taken together, these medications will
promote the effect of sleepiness or decreased motor coordination, possibly
dizziness and [affect] a persons judgment. Neither medication had been
prescribed for Ms. Kogawa while living in Canada. The appellant had a
prescription for Lorazepam, last filled on September 6, 2016.

[8]

Ms. Kogawas body was in a state of decomposition. The autopsy
found no anatomic evidence of major injuries. A piece of cloth was folded
and stuffed within the anus, and the cloth was soiled a brown colour, [with] no
obvious evidence of fresh blood. There were tree branches and leaves that
were scattered on the body, predominantly on the right side .

[9]

A pathologist was not able to determine the cause of death because of
the lack of specific anatomic or visible [injury], and the lack of specific
toxicological findings that can explain death. She did not rule out overdose
as a possible cause of death. She also testified that the absence of anatomic
or visible injury was not inconsistent with the cause of death being asphyxia
by suffocation. She defined asphyxia as the inability to utilize oxygen or to
use oxygen and said [a]sphyxia cases oftentimes are not associated with
specific visible findings at autopsy.

[10]

The pathologist testified that  not a large amount of force is
necessary to just block the nose and mouth. More force is required to cause
bruising. There was no sign of bruising to Ms. Kogawas nose. Her frenulum
(the tissue that connects the top lip to the middle of ones gums) was intact.
There were no signs of petechial hemorrhaging to her mouth. Bruising, tearing
of the frenulum, and petechial hemorrhaging are injuries that can occur when
pressure is applied to the nose and mouth, depending on the degree of force
used.

[11]

A toxicologist detected three compounds in Ms. Kogawas liver and surrounding
fluid: Zopiclone, 2‑amino‑5 Chloropyridine (a breakdown compound
associated with Zopiclone), and Lorazepam. The toxicologist did not attempt to
determine the concentration levels of these drugs. Because of complexities
arising from body decomposition, any numbers generated by that analysis would
not reliably indicate drug concentration at the time of death. At some time
prior to her death, Ms. Kogawa consumed Zopiclone and Lorazepam. However, the
toxicologist could not opine on whether Ms. Kogawa was under the
influence of those drugs when she died.

[12]

Ms. Kogawa was reported missing on September 12, 2016. On
September 27, police issued a news release seeking the publics
assistance. It contained two video surveillance images taken on September 8,
2016. The images depicted Ms. Kogawa at a mall in downtown Vancouver with
a then‑unidentified man.

[13]

One day after the news release, the appellants brother spoke with
police in Vernon. He told police the appellant had talked to him about Ms. Kogawa.
Among other things, the appellant told his brother the whereabouts of Ms. Kogawas
body. That information led police to the suitcase.

[14]

The appellant gave a statement to police on October 18, 2016. The Crown
has summarized the statement in its factum:

the appellant talked about first meeting Ms. Kogawa
mid‑August and their dates . He said  this isnt a premeditated
thing . On their last date (September 8), they were going to have
really good sex that they had talked about. He bought a tent for $20 . He
thought they had arranged to meet at 11 a.m. but she was late. He knew she had
another appointment later that day . They had trouble setting up the
tent, it was really rushed; they each drank three beers .
At one
point he said,  suddenly got very, very heated and, then went wrong.
When asked to clarify he said, I think it was time . the amount of time
wed given each other on that day . At another point he said,  shes
definitely a victim. It shouldnt have happened .

When asked How did she die?, the appellant said he
didnt know if her heart went or if it was her breath  . At that point
he made a brief hand gesture, putting his fingers to his nose and cupping his
mouth with his hand
. He wasnt actually certain that she passed
when sh-, at the moment she did. He stepped out of the tent for a smoke and
didnt think she was at that time.
He asked the police if it was her heart
or her breath . The appellant made a similar hand gesture shortly
thereafter
.

He told police he would send a letter with a full
confession to Ms. Kogawas family . At the end of the interview, in
response to a police comment that he has been showing remorse from day one, the
appellant said But it is, its my fault .

[Respondents factum at paras. 1113;
internal references omitted, emphasis added.]

[15]

In their testimony, the officers who took the statement described the
hand gestures made by the appellant:

he was quite engaged making eye contact with us
throughout the  the interview process. When we asked him question[s], as hes
explaining this, he paused, brought his hand to  towards his mouth, covered
his palm over his mouth and put his index finger and his thumb to his nose like
this, and he looked down and was in concentration as if, in my mind, recalling
a memory.

He had his hand in his  over his nose like this for about
two or three seconds as he was talking through this , he was  he brought his
hand up, so he didnt press hard, obviously you can hear hes not talking like
this. Hed bring his hand up and he was talking as hes doing this with his
hand  palm over his mouth.

he brought his hand again to his mouth and bring index
finger and thumb back to his nose, put it up and then put it down again.

He used his finger and first finger  or, sorry, thumb
and first finger, cupped it to his nose, placed it to his nose, and then cupped
the hand around the mouth like so as he  whoops, sorry, as he spoke.

When [the appellant] demonstrated that gesture to us, he was
talking as he did so.  He talked to me and continued talking  held
his thumb and his finger to put to his nose, and his mouth he cupped  cuffed
sorry, cuffed around his mouth.

...

He placed his thumb and his
finger to his nose, and he cuffed his hand around his mouth.

[16]

The surveillance footage that captured Ms. Kogawa walking with the (now‑identified)
appellant on September 8 showed the appellant carrying what was believed to be
a tent. At that time, the appellant was staying at a hostel on Cambie Street.
Footage from the hostels video system showed the appellant leaving the hostel
the morning of September 8 carrying the tent and a shoulder bag. He returned
that evening without the tent and appeared to be wearing different pants. He
left the hostel again on the morning of September 9 and returned that evening
carrying a large, unweighted suitcase. The next morning, the appellant left the
hostel with the suitcase and returned in the afternoon without it, wearing
different clothes. At trial, the appellant admitted to placing Ms. Kogawas
body in the suitcase.

[17]

In a letter to his father, dated November 4, 2016, the appellant spoke
of contact he had with Revenue Canada about a late $ return. He told his
father $6‑700 [was] expected at [his fathers] address in the weeks
ahead. He then said, just like court proceedings that await me, please
believe me that none of it was premeditated.

[18]

The appellant did not testify.

B.

Crown and Defence Theories

[19]

At trial, the Crowns theory was that the appellant and Ms. Kogawa
were on a date on September 8, 2016. He became angry because Ms. Kogawa
had to leave for another appointment. [I]n the heat of the moment, the
appellant killed her by smothering or asphyxiating her, using his hand and
fingers to cover or block her mouth and nose. The Crown said the evidence
proved that when he assaulted Ms. Kogawa, the appellant either intended to
kill her or intended to cause her bodily harm that he knew was likely to result
in her death, and he was reckless as to whether death ensued (s. 229(a) of
the
Code
). In Crown counsels words: [W]hen someone cuts off anothers
ability to breathe, they will undoubtedly die. Even a small child knows that.

[20]

The Crown further argued that after the death, the appellant took steps
to cover his tracks so there wouldnt be a trail of evidence that not only
would lead the police to him, but also hamper their ability to gather evidence
which would implicate him in the death . This included concealing Ms. Kogawas
body in a suitcase.

[21]

The appellants conversations with his brother, an attempted suicide,
his statement to police, and the letter to his father were said to be
consistent with the appellant knowing that he had committed an unlawful act
causing Ms. Kogawas death.

[22]

In its closing submissions, the defence argued that the Crown had not proved
that anyone caused Ms. Kogawas death, let alone the appellant. There was
no proof of an unlawful act that caused death, or that any such acthad it
occurredwas committed with the intent required for murder. The pathologist did
not know why Ms. Kogawa died. There were no autopsy findings consistent
with the Crowns assertion of asphyxiation. Without a determined cause of
death, thats the end of it. It cant be said that this was a homicide.

[23]

The defence argued that placing Ms. Kogawas body in a suitcase and
leaving the suitcase in bushes was not conduct from which the jury could
reasonably infer consciousness of guilt for murder. It was equally consistent
with the appellant panicking over the fact that Ms. Kogawa had died for
some unknown reason and then making very poor decisions about how to respond.

[24]

The things the appellant told his brother were said to prove nothing
other than that he knew the whereabouts of Ms. Kogawas body. His
expressions of remorse and attempted suicide were equally consistent with
feeling bad about interfering with the body. An overheard conversation with the
appellants wife (detailed later in these reasons), was a very, very undependable
bit of conversation to which the jury should attach no weight. The probative
value of the hand gestures during the statement to police was not assessable in
any meaningful way, as the officers did not video record the interview. The
appellant admitted fault for his role in the events of September 8, 2016, but
that admission did not extend to murder.

ISSUES ON
APPEAL

[25]

The appellant raises three issues on appeal. He says the trial judge (1) erred
in admitting parts of a phone conversation overheard by the appellants
brother; (2) erred in her instructions to the jury by not including
direction on the concurrence principle; and (3) mishandled and
incorrectly answered a question posed by the jury.

[26]

In his factum, the appellant also alleges a failure by the judge to
provide reasons for admitting the overheard conversation. However, he abandoned
that ground of appeal after it became apparent that reasons were available.

DISCUSSION

[27]

In resolving the issues advanced by the appellant, it will be necessary
to refer to parts of the instructions to the jury. I will work primarily from
the written version, distributed for use during deliberations. The appellant
does not allege discrepancies between the written charge and its oral delivery.

A.

Did the Trial Judge Err in Admitting the Overheard Conversation?

[28]

To answer this question, it is necessary to set out the related evidence
in some detail.

[29]

Whether the overheard conversation
was relevant to an issue at trial raises a question of law, reviewable on a
standard of correctness:
R. v. Mohan
, [1994] 2 S.C.R. 9 at 2021;
Housen
v.
Nikolaisen
, 2002 SCC 33

at
para. 8
.
Whether the evidence, if found relevant, should have
been excluded because its probative value was overborne by its prejudicial
effect, involved an exercise of discretion. That aspect of the judges admissibility
determination is entitled to significant deference:
R. v. Araya
,
2015 SCC 11 at para. 31.

The Evidence

[30]

In his opening statement to the jury, Crown counsel at trial (not
counsel on the appeal) told the jurors that they would hear testimony from the
appellants brother, Warren Schneider Jr. (WS). Among other things, WS would
testify that the appellant borrowed his phone to call the appellants wife, who
was living in Japan. During the call, WS overheard the appellant say to his
wife, words to the effect of, Have you heard the news in relation to Natsumis
death? and I did it or I killed her.

[31]

On the morning of WSs testimony, defence counsel (not counsel on the
appeal) took issue with the admissibility of the overheard conversation. WS
told police about the phone call when interviewed by them in 2016, and he
testified about it at the preliminary inquiry. However, the defence did not contest
the admissibility of the evidence until WS was about to testify. Given the late
notice, it was agreed that WS would start his testimony and be interrupted for
an admissibility determination at the point at which the conversation arose.

[32]

WS took the witness stand. He explained that the appellant married in
2001. His wifes name is Hiroe. They have a child together. The appellants
wife and child live in Japan. At the end of August or early September 2016, the
appellant phoned WS in the Okanagan and told him that he would be travelling to
Kelowna. He arrived sometime around September 20. He contacted WS and they met
in a park in Rutland. At one point, the appellant became upset. He gathered
his items and left, saying  that he did something bad and  and he walked
off.

[33]

WS later found out that the appellant had gone to Vernon and was staying
with their father, who lived there. He next saw his brother on September 23 at
a celebration for their grandmothers birthday in Kelowna.

[34]

On September 27, WS received a phone call (or text message) from one of
his daughters. She sent him a photo and asked, Is this Willie? WS looked at
the photo (part of a news article) and recognized the appellant. The article
was headed Missing Japanese Student.

[35]

WS called his fathers residence and spoke to the appellant. He told him
there was a photo on the Internet of him and a missing Japanese student. The
appellant did not say anything and hung up the phone.

[36]

WS travelled to Vernon that same day. He arrived at his fathers
residence at about 10:30 p.m. He grabbed [his] brother and they walked
to the beer store. On the way back, the appellant said, its true. The
appellant looked [v]ery sad. Remorsefully sad and [g]lad to get it off his
chest, per se.

[37]

The appellant shared some details with WS. He told WS that he had three
dates with Ms. Kogawa. The third date was the last one. [T]here was
medication taken by both of them. The appellant said Ms. Kogawa provided
the medication. He told WS they had spoken about having sex in a tent in
Stanley Park. WS also learned that Ms. Kogawa had been late for each of
the three dates; she had another engagement or appointment on the day in
question; and, in response to the suggestion that they have sex in Stanley
Park, the appellant told Ms. Kogawa of another spot. WS told the
appellant he did not want to hear anything more and they would talk about it in
the morning.

[38]

The next morning, the appellant told WS that he planned on buying some
heroin to take himself out in the bush and  and kill himself out in the bush.
They went to a beer store and purchased alcohol. The appellant also bought $50
worth of heroin. The appellant wanted to commit suicide, but he wanted [WS] at
his side. They went to a park in Vernon. The appellant consumed the heroin by
needle. He realized he got ripped‑off. It wasnt strong enough and he
didnt die.

[39]

WS testified that before the appellant injected the heroin, he told WS
the location of Ms. Kogawas body. It was at Nicola and Davie Streets in
Vancouver, at a construction site, or a restaurant. The appellant said the
building was undergoing renovations. It was fenced‑off and might look
like a construction site, a place not intended for the public, or, as if no one
was living there. The appellant said Ms. Kogawas body was in a suitcase,
and, after he killed himself, WS should tell the police. At this point, the
testimony moved into a
voir dire
.

[40]

WS said that after the appellant failed to die from the heroin
injection, he asked to use WSs phone and said he was going to call his wife.
The appellant dialed a number and had a conversation with the person who
answered. WS said the call lasted several minutes (a phone record showed the
call lasted 13 minutes). WS was about ten feet away from the appellant at the
time. He could only hear one side of the conversation. When asked to convey the
content of the call, WS said he heard the appellant ask near the beginning of
the conversation, Did you see the news of the missing Japanese woman,
student? Then, about halfway through, the appellant said, I did it and I
killed her.

[41]

In cross‑examination on the
voir dire
, WS confirmed that he
could only hear one side of the conversation. As a result, he did not know if
the appellants wife was asking questions and the appellant was responding to
them. The defence suggested to WS that he did not know the exact words spoken
by the appellant. He testified that he could not recall the full conversation,
no. It was suggested that he did not know whether the appellant had, in fact,
said I did it. WS responded, Yes, he said that. He said [t]hat he killed
her. WSs testimony at the preliminary inquiry was put to him, in which he
said he believe[d] the words used by his brother were I did it
or
I
killed her. When asked to explain the difference between his evidence at the
preliminary inquiry and his testimony on the
voir dire
, WS said:

A.          thats what I said there, I did it
or I killed her, but meaning that hes responsible for her death.

Q.        So you dont know the exact words he said?

A.         Not word‑for‑word, but the message
that I got from that was

Q.        Your feeling about it?

A.         Yes.

A.

Word‑for‑word, I dont know the exact words.

Q.        Well,
you dont know the words at all, do you?

A.         Word‑for‑word, no.

Q.        Well, when you say word‑for‑word,
what do you mean by that?

A.         In a sense, it seemed like he was admitting
to the missing Japanese students death. I did it or I killed her, well, I
guess that word or there. Overhearing a part of a conversation, I did it. I
killed her, its along those lines, and word‑for‑word, maybe I was
not missing a word, but its word‑for‑word. I  he did say I did
it.

Q.        But what you  you  thats contrary to what
you said in your last answer, sir, in that transcript I just read you when I
said What were the exact words, and you said, I dont know the exact words,
and thats true, isnt it?

A.         Well, the whole conversation.

Q.        It was your feeling about the impression you
got, isnt that really it?

A.         Yeah. Yes.

[42]

Following submissions on the
voir dire
, the trial judge admitted
the evidence surrounding the overheard conversation. In her ruling, she
acknowledged that WS could not remember the exact words [the appellant] used
nor could he remember any other parts of the [telephone] conversation:
R.
v. Schneider
, 2018 BCSC 2546 at para. 9 (RFJ). However, she was
satisfied there was sufficient context surrounding the conversation that the
evidence could be left with the jury:

[18]      Although Warren Schneider Jr. was not actively
trying to listen, he was present for [the]

whole conversation and is
able to give evidence about the context of the conversation. The context of the
conversation was that he and Mr. Schneider had been discussing the missing
Japanese woman. Prior to the conversation, Mr. Schneider had told Warren
Schneider Jr. where Ms. Kogawas body was located.

[19]      As set out in [
R. v. Ferris
, [1994] 3 S.C.R. 756],
the trial judge must be satisfied there is some evidence upon which a jury
could conclude the meaning of the uttered words. As noted in [
R. v. Bennight
,
2012 BCCA 190], the possibility of incompleteness is a matter of weight for the
jury.

[20]      In my opinion, it is apparent from Warren Schneider
Jr.s evidence on the
voir dire
that there is some evidence on which a
jury could conclude the meaning of the uttered words. While he was unable to
recall the exact words, Warren Schneider Jr. testified about the context of the
conversation and that the gist of the conversation was that Mr. Schneider
was taking responsibility for Ms. Kogawas death.

[21]      In my view, the
probative value of the evidence outweighs the prejudicial effect that it might
be used improperly. The prejudicial effect can be ameliorated by a strong
caution to the jury about what use can be made of the evidence.

[43]

After this ruling, WS resumed his testimony before the jury and gave
evidence about the phone call. In his direct examination, he said he heard the
appellant say to his wife, Did you hear the news about the missing Japanese
student? About halfway through the conversation, he also heard the appellant
say, I did it. I killed her. Crown counsel asked WS if those were the
appellants exact words. He replied no. He only heard one side of the
conversation and that was the gist of what was said.

[44]

In cross‑examination, WS agreed that the phone call lasted
13 minutes and he had no knowledge of what the appellants wife said
during the call. He also agreed that he was purposefully trying not to
eavesdrop. He said he was certain the appellant asked his wife whether she had
heard the news about the missing Japanese student and that this question was
posed at the start of the conversation. WS confirmed he did not know the exact
words spoken by the appellant or if the appellant was being asked a question
about Ms. Kogawa or something else when he was overheard to say I did it.
He agreed that portion of the conversation could have been completely unrelated
to Ms. Kogawa. He did not know if the words I did it were said in the
middle of a sentence, at the start of a sentence, or at the end.

[45]

WS testified that after the phone conversation, he and the appellant
went back to the beer store and purchased more alcohol. The appellant said he
wanted to buy more heroin, but did not do so. They took some pictures. They
hugged as if it would be [their] last hugs together. They cried. WS left the
appellant and met their sister near the police station. WS subsequently told
police about the location of Ms. Kogawas body.

Positions of Parties
on Admissibility

[46]

Relying on
R. v. Ferris
, 1994 ABCA 20, affd [1994] 3 S.C.R. 756,
the appellant says the trial judge erred in admitting the evidence of the
overheard telephone conversation. He contends that this evidence is subject to
a narrowly circumscribed, class‑based inadmissibility principle
specific to fragments of one‑sided conversations overheard by a third
party that the Crown seeks to tender as an admission. The appellant says that
before admitting this type of evidence, a trial judge must first determine
whether the evidence constitutes an admission (potentially applying a standard
of proof beyond a reasonable doubt). Only then will the evidence be logically
relevant and open for consideration by the jury. If the judge is
not
satisfied
that the words amount to an admission, because their meaning cannot be
ascertained, the evidence is automatically inadmissible (appellants factum at paras. 52,
57, 58, 65).

[47]

The appellant contends that the trial judge failed to make this mandated
threshold enquiry. Instead, she improperly left it to the jury to decide
whether the overheard words amounted to an admission. Had she conducted the
proper analysis, the judge would have concluded that the words did not
constitute an admission because it was impossible to ascertain their meaning.
Having reached that conclusion, there would be no alternative but to keep the
evidence from the jury (appellants factum at para. 67).

[48]

Alternatively, the appellant says the judge was clearly wrong in her analysis
of probative value and prejudicial effect. WS could only hear one side of the
conversation and in snippets. He testified that he was trying
not
to
listen to his brother. He did not hear what came before and after the impugned
words and he could not recall the exact words spoken. The appellant says there
is no real difference between this case and
Ferris
, and the prejudicial
effect of admitting this evidence strongly outweighs its probative value.

[49]

The Crown says the admissibility ruling accords with the governing
analytical principles and there is no basis for appellate intervention. The
Crown sought to tender the overheard conversation as evidence of the appellant
admitting his involvement in the death of Ms. Kogawa. In deciding whether
that evidence should go before the jury, the judge properly asked whether there
was
some evidence
by which the jury could determine the meaning of the
words. Then she assessed the probative value of the evidence as against its
prejudicial effect. This was all the judge was required to do. It was not the
role of the judge to determine, as a fact, whether the impugned words
did
amount
to an admission. If the judge admitted the evidence, that was for the jury to
decide with the aid of proper instructions on how to assess the weight of the evidence
and make use of it.

[50]

Relying on cases such as
R. v. Bennight
, 2012 BCCA 190
(inexact words spoken to a jail guard), the Crown says the circumstances
surrounding WSs interactions with the appellant in Rutland, Kelowna and Vernon
in September 2016 provided ample evidentiary support for the judges decision
to leave the overheard conversation with the jury. It offered sufficient
context from which the jury could assess the meaning of the words and their
weight.

Legal
Principles

[51]

Counsel agree that
Ferris
is the jurisprudential starting point
for the admissibility analysis.

[52]

Mr. Ferris was arrested for murder. While in police custody, he
asked to call his father. During the call, a police officer overheard Mr. Ferris
say the words Ive been arrested and I killed David. The officer could not
hear what the father said to Mr. Ferris or any other parts of the
conversation between the two men. The officer acknowledged there was conversation
before, after, and in between the two sets of words he overheard. However, he
did not know what it consisted of. He also did not know if the words I killed
David came at the start, the end, or in the middle of a sentence: 1994 ABCA 20
at paras. 35.

[53]

The trial judge admitted the overheard remarks. The appeal court found
that he erred. Conrad J.A. wrote for the majority and provided three bases
for inadmissibility.

[54]

First, there was insufficient evidence from which a properly instructed
jury could determine the meaning of the overheard remarks (at para. 27).
The words I killed David were only relevant, and therefore admissible, if
shown to be capable of supporting a conclusion that they amounted to an
admission (at para. 31). If it was not possible to determine the meaning
of the words, the Crown failed in its threshold burden to show that the words
were relevant to an issue at trial (at para. 38). In
Ferris
, it
was:

[17]       uncontradicted that the words were part of
an utterance only, and that other words passed both before and after those
words. It [was] uncontradicted that the words could have come at the beginning
of a sentence or at the end of a sentence. In fact, the words may have been a
part of a question such as "You don't think I killed David?" or a
statement such as "They think I killed David" or "They think I
killed David but I didn't". His father could have asked him what the
police think he did and he could have replied "I killed David". Those
utterances [did] not prove any fact in issue and [were] not an admission of
guilt. Indeed, on the basis of the uncontradicted evidence, the possibility of
statements with the words "... I killed David ..."
contained therein [were] numerous.
There [was] no way of determining the
meaning or thought to be attributed to the words
.

[Emphasis added.]

[55]

The second basis for inadmissibility was a logical corollary of the
first. The overheard conversation consisted of words spoken out‑of‑court.
The Crown sought to tender the evidence for its truth, engaging the common law
rule against hearsay. To have Mr. Ferriss utterances admitted, the Crown
was required to establish that they fell within a traditional exception to the
hearsay rule or were otherwise admissible under the principled exception,
requiring determinations of necessity and reliability.

[56]

The traditional exception engaged by the case was an admission. For the
same reasons the Crown could not establish that the words I killed David were
relevant to an issue at trial, the Crown could not show that they fell within
the traditional exception (at para. 32). The utterances were not capable
of interpretation as an admission. Conrad J.A. found that the utterances
would also be inadmissible under the principled exception to the rule against
hearsay as it stood at the material time. Because of the circumstances
surrounding the overheard words, it would be foolhardy to find that they met
the test for reliability (at para. 35). Nor was admitting evidence of an
overheard, one‑sided conversation necessary. The Crown could have called
the father to testify about the contents of the phone call with Mr. Ferris
(at para. 36). It chose not to.

[57]

Conrad J.A.s third reason for finding the evidence inadmissible
was that, even if shown to be relevant and admissible hearsay, the probative
value of the overheard words was overborne by their prejudicial effect:

[37]      The last thing to
consider is the balance between probative value and prejudicial effect. The
statement "... I killed David ..." has no probative value
given that we do not know the words which surrounded the utterance, the
utterance was just as likely to be meaningless as inculpatory or even
exculpatory.  Also, as mentioned earlier, this evidence could never meet
the test of probative value versus prejudicial effect. The extreme prejudice is
so great its exclusion must be favoured.

[58]

The Crown appealed the majority decision in
Ferris
. The appeal
was dismissed. In a short oral judgment, the Supreme Court did not engage in a
substantive analysis of the three bases provided by Conrad J.A. for non‑admissibility
or discuss the relevant legal principles. Instead, the Court simply endorsed
the third of the majoritys conclusions, holding that if the utterance I
killed David had any relevance, its meaning was so speculative and its
probative value so tenuous that the trial judge ought to have excluded it on
the ground its prejudicial effect overbore its probative value (at 756).

[59]

I do not agree with the appellant that in upholding the majority
decision in
Ferris
, the Supreme Court

established a class‑based
inadmissibility principle or exclusionary rule specific to overheard, one‑sided
utterances adduced by the Crown. Indeed, in decisions from this Court released
after the Supreme Courts ruling,
Ferris
has consistently been approached
as a case in which the impugned remarks were rendered inadmissible after a
weighing of their probative value and prejudicial effect. See, for example,
R. v.
Foerster
, 2017 BCCA 105 at para. 74;
Bennight
at para. 91;
R. v. Reierson
, 2010 BCCA 381 at para. 39; and
R. v.
Mooring; R. v. Woods
, 1999 BCCA 418. See also
R. v.
Hummel
, 2002 YKCA 6 at paras. 2932.

[60]

Furthermore, in
R. v. Alcantara
, 2015 ABCA 259, leave
to appeal refd [2016] S.C.C.A. No. 14, the Court of Appeal of
Alberta reviewed
Ferris
and explicitly rejected the proposition advanced
by the appellant in this case. In
Alcantara
, police intercepted
telephone conversations involving one of the accused. In one of those calls,
words spoken by the accused were intelligible and recorded. However,
immediately preceding and following those words were statements by the person
to whom the accused was speaking. They were not

intelligible (at para. 134).
The accuseds comments (consisting of three sentences) were admitted. On
appeal, he contended that the trial judge erred in doing so. He said that as a
matter of
legal principle
, when the Crown seeks to rely upon an
incomplete utterance, it may be impossible to ascertain the meaning of the
words and, because of that risk, the evidence is inadmissible or, at the very
least, must not be given any weight (at para. 135).

[61]

The appeal court found that admitting the evidence was reasonably open
to the trial judge (at para. 147). Moreover, it held that the majority
judgment in
Ferris
did not
lay down a rule of inadmissibility
(or zero weight) for any statement which is not complete, even if the statement
comes without a live listener present (at para. 140; emphasis added).
Instead:

[146]
Orthodox rules of law for weighing
prejudice and relevance apply
, says the Supreme Court of Canada. The topic
is entirely one of weight, before and after admission of the evidence.

[Emphasis added.]

[62]

In reaching this conclusion, the
Alcantara
division pointed to
two appellate decisions the Alberta Court rendered post‑
Ferris
:
R. v.
Cador
, 2010 ABCA 232, and
R. v. Yates
, 2011 ABCA 43.

[63]

In
Cador
, the accused was charged with aggravated assault. The
Crown tendered evidence of a phone call made to the accused by the
complainants sister the day after the alleged attack. In the call, the accused
did not directly acknowledge involvement in the assault. She basically just
cried on the phone and then said, it wasnt supposed to be this bad (at para. 3).
On appeal, the accused argued that because the conversation was incomplete and
equivocal, it was not open for consideration by the trier of fact (at para. 16).
The Court of Appeal disagreed:

[16]       Read in context,
use of the word basically by [the witness] does not detract from the thrust
and import of the Appellants admission that it wasnt supposed to be that
bad. The statement was properly admitted and appropriately relied upon by the
trial judge.

[64]

In
Yates
, the accused was charged with murder. A sheriff
overheard him make incriminating comments while in a prisoners van (at paras. 10,
14). The sheriff testified that he was not paying attention at the start of the
accuseds conversation with other prisoners; however, he did so once he
realized that the accused was talking about the crime (at para. 17). Among
other things, he heard the accused say, He was skidding on my sister, so I
shot him in the fucking head (at para. 17). The trial judge admitted all
of the comments into evidence. On appeal, the accused argued the evidence was
wrongly admitted because it was fragmented, not recorded
verbatim
, and
incomplete in terms of context (at para. 18). In addition, the judge
should have excluded the utterances because their probative value was
outweighed by their prejudicial effect and he failed to make that enquiry (at para. 18).

[65]

The Court of Appeal declined to intervene with the admissibility ruling.
Unlike the circumstances in
Ferris
, the overheard comments represented
more than a small snippet of a statement (at para. 20). They were
longer and more numerous than the utterances overheard in
Ferris
, and
they represented more than partial thoughts (at para. 20). The sheriff
testified that he paid attention to the conversation once he realized the
accused was talking about the crime. This testimony add[ed] context to the
utterances (at para. 20). The defence did not press for a finding that
the probative value of the comments was outweighed by their prejudicial effect,
and the trial judge properly instructed the jury on the use it could make of
them, including that it was up to the jury to decide how much of the
[sheriffs] testimony to believe (at para. 22).

[66]

In my view,
Ferris
,
Alcantara
and other of the cases
cited by counsel on this ground of appeal tell us that the admissibility of the
appellants phone conversation, as overheard by WS, was not subject to a unique
exclusionary rule. Rather, first principles govern. The things said by the appellant
were admissible as a recognized exception to the rule against hearsay if:
(1) relevant to an issue in the case; and (2) their prejudicial effect
did not outweigh their probative value.

[67]

See also
R. v. Hunter
(2001), 54 O.R. (3d) 695
(C.A.) at paras. 1521 (overheard utterance made to the lawyer of the
accused at the courthouse); and
R. v. Buttazzoni
,
2019 ONCA 645 at paras. 5358 (utterances overheard by a police
officer while hiding under a truck within earshot of the accused).

[68]

As explained by Charron J.A. (as she then was) in
R. v.
Collins
(2001), 160 C.C.C. (3d) 85
(Ont. C.A.):

[18]       evidence that is relevant to an issue in the
case will generally be admitted. Indeed, it is a fundamental principle of our
law of evidence that any information that has any tendency to prove a fact in
issue should be admitted in evidence unless its exclusion is justified on some
other grounds: see
R. v.
Corbett
, [1988] 1 S.C.R. 670 at 715;
R. v. Morris
, [1983]
2 S.C.R. 190 at 201; and
R. v.
Seaboyer
, [1991] 2 S.C.R. 577 at 609.

[19]      The grounds that
justify the exclusion of evidence that is otherwise relevant and material form
the basis of many of our more specific rules of evidence. The rule against
hearsay, the opinion rule and the similar fact rule are a few examples. Quite
apart from these specific rules, evidence that is otherwise relevant and
material may also be excluded by the exercise of the trial judge's general
power to safeguard the fairness of the proceedings. Our law of evidence
recognizes the general power of a judge to exclude relevant and material
evidence where its probative value is outweighed by the prejudice caused by its
admission, provided that where the evidence is tendered by the defence, it
should not be excluded on that basis unless the prejudice
substantially
outweighs the
value of the evidence: see
Seaboyer
,
supra
,
at 390; and
R. v.
B. (S.C.)
(1997), 119 C.C.C. (3d) 530 (Ont. C.A.)
at 541. Prejudice in this context does not mean, of course, that the evidence
will be detrimental to the other party's position. Rather, it is related to the
detrimental effect that the evidence may have on the fairness and the integrity
of the proceedings.

See also
R. v. Grant
, 2015 SCC 9
at paras. 1819.

[69]

Applying this framework, the appellant is wrong to say that in assessing
relevance, the trial judge was obliged to determinein factwhether the
overheard words constituted an admission. Rather, the words said to have been
spoken by the appellant were relevant if
capable
of being an admission
(
Ferris
(C.A.) at paras. 26, 27, 29, 31, 38; emphasis added).

[70]

At this stage of the admissibility analysis, a trial judge is concerned
with logical relevance. As explained by Doherty J.A. in
R. v.
Abbey
,

2009 ONCA 624,
leave
to appeal refd
[2010] S.C.C.A No. 125,

logical relevance requires:

[82]       that the evidence have a tendency as a
matter of human experience and logic to make the existence or non‑existence
of a fact in issue more or less likely than it would be without that
evidence . Given this meaning,
relevance sets a low threshold for
admissibility
and reflects the inclusionary bias of our evidentiary
rules .

[Internal references omitted;
emphasis added.]

[71]

In
R. v. Arp
, [1998]
3 S.C.R. 339, it was made clear
that 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.  As a
consequence, there is
no minimum probative value required for evidence to be
relevant
 (at para. 38; internal references omitted; emphasis added).
See also
R. v. Blackman
, 2008 SCC 37 at paras. 2930.

[72]

The Crown sought to tender the
words overheard by WS as an admission of responsibility for the death of Ms. Kogawa.
Clearly, that was a material issue at trial. To meet its burden on logical
relevance, the Crown was required to show that those words were capable of
interpretation as an admission. In assessing whether the Crown met that burden,
the question for the judge to decide was whether there was some evidence upon
which [the] jury could conclude the meaning of the uttered words:
Alcantara
at paras. 138139.

[73]

If the answer was yes, the judge was obliged to move to the second
stage of the analysis and determine whether she should keep the evidence from
the jury because its prejudicial effect outweighed its probative value. It is
only
then
that a trial judge engages in a weighing of the evidence,
albeit on a limited scale. The purpose of the limited weighing is to assess
legal relevance. Again, with reference to para. 82 of
Abbey
:

Relevance can also refer to a requirement that
evidence be not only logically relevant to a fact in issue, but also
sufficiently probative to justify its admission despite the prejudice that may
flow from its admission. This meaning of relevance is described as legal
relevance and involves a
limited weighing of the costs and benefits
associated with admitting evidence
that is undoubtedly logically relevant .

[Internal references omitted;
emphasis added.]

[74]

To understand the scope of the judges role at the second stage of the
analysis, I find
R. v. Hall
,

2018 MBCA 122, helpful.
There, Mainella J.A. (writing for the Court) explained that:

[125]    Determining whether the probative value of evidence
outweighs its prejudicial effect requires a 'cost benefit analysis' (
R. v. Hart
, 2014 SCC 52
at para 94).

[126]     Probative value is more than just the
evidence having
logical

relevance
; it is also about the prospective
materiality of the evidence. The legal concept of relevance ensures that the
ultimate factual inquiry is "reasonable, practical and fair" .
Defining legal relevance requires the trial judge to assess "the degree to
which the evidence would prove the fact in issue for which it was
tendered" , as well as any "defects" in the evidence in
terms of credibility or reliability .
In carrying out this analysis,
the trial judge must weigh the evidence to a limited degree but without
encroaching on the domain of the fact finder as to whether the evidence should
be believed and relied upon
. The overriding question is whether the
evidence is 'worthy' of being heard by the fact finder .

[127]    Prejudicial effect is assessed by identifying the
dangers of the evidence and considering how real those dangers are to the
fairness of the trial . Prejudice, however, does not refer to the mere
fact that the evidence supports the moving party's case to the prejudice of the
respondent .

[128]    Some of the dangers otherwise admissible evidence
may cause to the fairness of a trial are undue arousal of the jury's emotions,
distraction, unnecessary delay or repetition, unfair surprise to a party and
usurpation of the role of the jury .

[Internal references omitted;
emphasis added.]

[75]

It is apparent from the
voir dire
ruling in this case that the
trial judge correctly instructed herself on the legal principles she was bound
to apply in determining admissibility. She asked whether there was some
evidence upon which the jury could conclude the meaning of the words conveyed
through WS (at para. 19). Once satisfied the evidence was logically relevant,
she went on to assess legal relevance by asking whether its probative value
outweighed the prejudicial effect that it might be used improperly (at para. 21).

[76]

After considering the totality of WSs testimony about his interaction
with the appellant, up to and including completion of his evidence on the
voir
dire
, I am satisfied the judge was correct in her finding of logical
relevance.

[77]

In my view, this case is qualitatively different from
Ferris
, which
Conrad J.A. acknowledged to involve a unique

set of facts (at para. 17).
In
Ferris
, the Crown did not adduce any informing context from which
the trier of fact could determine the meaning of the words I killed David (at
para. 35). The evidence consisted of the fact of an arrest for murder, a
phone call to the father of the accused while in police custody, and two
overheard utterances: Ive been arrested and I killed David. There was no
one on the
voir dire
who could swear positively to the fact that the
essence of the accuseds words were an admission (at para. 25). As a
result, the gist of the statement [was] unknown and, moreover,
unascertainable (at para. 25). The Crown did not tender any independent
evidence from which meaning [could] be drawn (at para. 30).

[78]

In this case, there was far greater context to inform the meaning of the
overheard utterances, including evidence that:

·

WS was the appellants brother, had a pre‑existing
relationship with him and was familiar with his personal circumstances;

·

WS met with the appellant at a Rutland park on September 20 (or
thereabouts). During that visit, the appellant became upset, gathered his
things and left the interaction, saying he had done something bad;

·

on September 27, WS contacted the appellant by phone and told him
about the news article circulating with a picture of the appellant and Ms. Kogawa.
In response, the appellant hung up the phone;

·

WS travelled to Vernon that same day and spoke with the
appellant. The appellant acknowledged the news release reporting Ms. Kogawa
as missing (its true); he acknowledged being with her; and he provided WS
with information specific to their last date together. WS described the
appellants demeanour during this conversation as [r]emorsefully sad. He
seemed [g]lad to get it off his chest;

·

the next morning, in the context of the preceding conversations,
the appellant told WS that he wanted to kill himself and he followed through on
that intention in the presence of WS, purchasing heroin and injecting the
heroin for the purpose of an overdose;

·

he told WS about the location of Ms. Kogawas body and asked
that WS relay that information to police
after
he was dead;

·

near the start of the phone call with the person WS believed to
be the appellants wife, the appellant referred to the missing Japanese woman,
student;

·

during that same conversation, WS heard I did it or I killed
her, and understood that to mean [the appellants] responsible for her
death; and,

·

although he did not recall the full conversation, or what the
appellant said word‑for‑word, the message WS took from the
phone call was that the appellant was admitting to Ms. Kogawas death.
That was the impression left with him.

[79]

On this foundation, I cannot say there was
no
evidence from which
the jury could conclude the meaning of the uttered words:
Alcantara
at paras. 138139.

[80]

The statements I did it or I killed her formed part of a telephone
conversation that was said to explicitly reference the missing Japanese woman,
student, thereby connecting the conversation to the subject matter of the
offence. The impugned words came after the appellant had already acknowledged
to WS that Ms. Kogawa was missing, that he knew her, and that he had been
with her. They also came after the appellant told WS he was aware of the
location of her body and, by necessary implication, the fact that she was
deceased. Up to this point, the appellant had not interacted with police about
the matter, from whom he might have gleaned those details. The appellant had
direct and peculiar knowledge of Ms. Kogawas circumstances when she was reported
missing, which would logically inform any inferences drawn by WS (or the
impressions left with him) from the overheard conversation.

[81]

The appellant displayed a remorseful demeanour during his conversations
with WS. He expressed an intention to kill himself, after which WS was free to
tell police the location of the body. This evidence is consistent with an
awareness of culpability for a wrongful act that was grave in nature. The
appellant followed through on the intention to take his own life, although he
did not succeed. WS provided evidence on the gist or essence of the words
spoken during the phone call, describing them as taking responsibility for Ms. Kogawas
death. This impression formed after the appellant had already spoken directly
with WS about Ms. Kogawas disappearance and his knowledge of her
whereabouts. As noted, the impugned words came before any police involvement
with the appellant or allegations of wrongdoing against him. As such, unlike
Ferris
,
there could be no suggestion here that during the phone call, the appellant was
simply repeating accusations made by police or responding to questions asked by
the person on the other end of the phone about what police alleged he had done.

[82]

I also find this case distinguishable from
R. v. OReilly
,
2017 BCSC 276, an authority cited by the appellant. Mr. OReilly
was charged with two counts of first degree murder. At trial, the Crown sought
to adduce portions of conversations between the accused and one of his then co‑accused
(later a cooperating Crown witness) that were overheard by two jail guards
while Mr. OReilly was held in custody. One of the guards said she heard Mr. OReilly
say something to the effect of Im not going down alone (at para. 19).
The other guard testified that she heard him say, I was only there for 5W and
that is when shit hit the fan (at para. 25). When the second guard
initially detailed these events to police, she also said she heard Mr. OReilly
say, I wasnt going down by myself (at para. 28). On the admissibility
voir
dire
, the guard did not recall the latter words, but acknowledged that the
information she gave to police was accurate and truthful. As such, the Crown sought
to have this portion of the guards evidence admitted as past recollection
recorded (at para. 28).

[83]

In opposing admissibility, the defence argued (among other things) that
the meaning of the comments exchanged between Mr. OReilly and his co‑accused
could not be ascertained, and, as such, they had no probative value or so
little probative value as to be outweighed by their prejudicial effect (at para. 37).
The trial judge agreed:

[46]      I am not satisfied that the Crown has established
that the fragmentary phrases that were allegedly overheard are relevant.
The
context is unknown and [the co‑accused] was not able to provide any
assistance in this regard
. The statements Mr. OReilly is alleged to
have made are I was just there when crap went down/I was only there for 5W
and that is when shit hit the fan and Im not going down alone/I wasnt
going down by myself.
The meaning the Crown seeks to attribute to these
utterances is purely speculative without the surrounding context. Neither [the
guards], nor indeed [the co‑accused] or any other witness called by the
Crown on this
voir dire
, is able to say what Mr. OReilly meant
when he allegedly said he was there or that he was not going down by
himself
. In my view, no meaning can be attributed to these dissevered
words. Further, even if I am wrong and the utterances are relevant in that they
are capable of supporting the meaning argued by the Crown, it seems clear to me
that their prejudicial impact far outweighs any probative value they may have;
the impact of this evidence on the jury would simply be out of proportion to
its reliability.

[Emphasis added.]

[84]

In reaching this conclusion, the judge in
OReilly
noted various difficulties
with the proposed evidence, including that the guards did not hear the words
spoken before or after the impugned utterances; they did not immediately make
notes of what they heard, or everything they heard; and they acknowledged they
may have some of the words wrong (at para. 44). In addition, the first
guard was initially unable to identify Mr. OReilly on the
voir dire
.
Nor could she describe the sound of his voice, even though she said she could
recognize it (at para. 17). She further testified that she believed Mr. OReilly
was talking to his co‑accused about the events that formed the subject
matter of the charge for murder, but was not able to recall their exact words
as she was distracted by other duties (at para. 21). By the time of the
voir
dire
, the second guard had no recall of one of the remarks said to have
been overheard.

[85]

In my view, the evidential foundation surrounding the impugned
statements in
OReilly
was far less detailed than the one in this case.
Moreover, WS was personally familiar with the appellant; before the overheard call,
he received information directly from the appellant that was specific to the
disappearance of Ms. Kogawa; and,
critically
, the evidence of WS
was able to connect the overheard phone conversation to the subject matter of
the charged offence.

[86]

Whether there is some

evidence
upon which a jury could conclude the meaning of utterances the Crown seeks to
tender is a case‑specific enquiry, informed by the extent to which the
circumstances surrounding those utterances (otherwise described as context) offer
an evidential foundation that has the capacity to support the ascertainment of
their meaning. In
Ferris
, the exclusion of the words I killed David was
anchored in the
absence
of context that could assist in giving
meaning to [the] spoken words (
Hunter
at para. 19). That is not
the situation here.

[87]

When assessing logical relevance, it is not proper to consider the
impugned words in isolation. The threshold test for logical relevance is low. On
the evidential foundation in this case, I agree with the trial judge that the
Crown met that test.

[88]

I have had the privilege of reviewing a draft of the reasons provided by
my colleague, Justice Goepel, specific to the admissibility of the overheard
conversation. Although he does not take issue with the legal principles I have
brought to bear in my analysis, we part company on whether the appellants
utterances, as relayed by WS, met the test for logical relevance. Goepel J.A.
is of the view that the words I did it or I killed her were not capable of
interpretation as an admission. In my view, in reaching that conclusion, my
colleague has undervalued the informative role of what he refers to as the macro‑context
set out at para. 78 of my reasons, and, importantly, its proximity to the
overheard conversation.

[89]

The utterances relayed by WS, as they stood at the time of the
admissibility ruling, formed part of an ongoing interaction and dialogue between
WS and his brother in which the appellant was
also
providing details of
his relationship with Ms. Kogawa to WS, as well as information about circumstances
surrounding her disappearance. In deciding logical relevance, the trial judge
focused on that context, not the evidence of the case at large (see para. 18
of her RFJ). This is different from
Ferris
, in which the utterances
stood alone, without any capacity to inform their meaning by reference to other
information directly and contemporaneously received from the accused in
relation to the deceased, or about events proximate to that individuals death.

[90]

My colleague holds that without micro‑context, which he defines
as the parts of something written or spoken that immediately precede and
follow a word or passage and clarify its meaning, it was not possible to
determine the meaning of the appellants impugned words. That is, in my view,
too narrow an approach to the logical relevance analysis. Arguably, in its
practical application, it also means that an incomplete utterance will rarely,
if ever, be admissible. The absence of surrounding words will generally be dispositive
at the first stage of the analysis. Respectfully, that approach is inconsistent
with the low threshold for logical relevance endorsed by the Supreme Court in
Arp
,
and it risks lay[ing] down a rule of inadmissibility of the type explicitly rejected
in
Alcantara.

[91]

I am also satisfied the judges conclusion that the probative
value of the overheard conversation was not outweighed by its prejudicial
effect should be respected. This aspect of her determination is entitled to
significance deference:
Araya
at para. 31.

[92]

At this stage of the admissibility analysis, the judges determination
of logical relevance had already addressed (and accounted for) the concern that
any meaning ascribed to the impugned words would be purely speculative
.
The
finding of logical relevance necessarily rejected that proposition. The judge
had determined (correctly, in my view) that the overheard words were capable of
interpretation as an admission in light of the surrounding evidentiary context.
She found that there was
some evidence
from which a properly instructed
jury, acting reasonably, could find that the utterances I did it or I killed
her amounted to an acknowledgment of the appellants involvement in Ms. Kogawas
death. In other words, in ascribing meaning to the words, the jury would not be
engaged in mere conjecture.

[93]

In weighing probative value and prejudicial effect, the trial judge was
entitled to conduct her assessment with that finding in mind. The probative
value of the evidence may not have been strong because of its associated
frailties, but that did not preclude the trial judge from asking whether a
strong caution to the jury about those frailties, the proper way in which to
assess and assign weight to the evidence, and its use was sufficient to
ameliorate the prejudicial effect.

[94]

In
R. v. Herntier
, 2020
MBCA 95
, a decision released shortly before the hearing of
this appeal, the trial judge admitted a statement made by the accused to a work
associate in which the accused said he had killed someone, but did not reveal
who that person was, when the killing occurred, or the surrounding
circumstances. The witness could not specify the date of the conversation or
the words spoken immediately before or after the comments at issue (at paras. 23134).
The Crown sought to tender the statement as an admission in the accuseds prosecution
for murder. The defence opposed admissibility on
Ferris
grounds (at paras. 257,
265). The ruling to admit the statement was upheld on appeal. There was
sufficient
context to give meaning to the words (at paras. 26774).
In applying the applicable standard of review, the
Manitoba Court stressed that [t]he weighing of probative value and prejudicial
effect takes place in the context of the evidence that has been called and the
dynamics of the trial,
and the trial judge is in the best position to assess
those factors
 (at para. 276; emphasis added). I agree.

[95]

In this case, the trial judge determined that the potential
prejudice to the fairness and integrity of the trial arising from the fact that
the overheard telephone conversation was one‑sided and incomplete and that
WS could not recall the exact words was mitigable with a strong ameliorative charge
on proper use. In my view, that conclusion was reasonably open to her.
Moreover, the evidence was not of the type that would unduly arouse emotions,
lead to distraction, delay the proceedings or invite repetition:
Hall
at
para. 128. Nor was the defence caught by surprise. It had known about this
evidence from before the preliminary inquiry. Consistent with the appellate
analysis brought to bear on the overheard utterances in
Buttazzoni
, I am
satisfied the trial judge identified and applied the appropriate legal test for
admission of the phone conversation,
considered
the frailties of the evidence, and reasonably left it to the jury to determine
its weight. The admission of such evidence is a discretionary call . (
Buttazzoni
at para. 58).

[96]

After the admissibility ruling, WS repeated his evidence of the overheard
conversation in the presence of the jury. In cross‑examination, WS
confirmed that he did not know the exact words spoken or whether the appellant
said I did it in response to a question, and he agreed with the possibility
that this portion of the conversation may have been unrelated to Ms. Kogawa.

[97]

In her final instructions, the trial judge made it clear to the jury
that it could accept all, part or none of a witnesss evidence (including, of
course, that of WS). She told the jurors that in assessing the credibility of a
particular witness, or deciding how much to rely on that persons evidence,
questions to ask included whether the witness was in a position to make
accurate
and complete observations about the event
 (emphasis added). If the jury
had a reasonable doubt about the appellants guilt arising from the credibility
of the witnesses, the jury was obliged to acquit.

[98]

The judge also provided the jury with a specific instruction on how to
approach the overheard conversation, as well as the use that could be made of
it. She acknowledged the deficiencies in the evidence and made it plain that if
the jurors had any doubt about what the appellant said during the phone call,
or
what he meant by the words used
, they should ignore the evidence:

[79]      You heard testimony from Warren Schneider Junior
about a telephone conversation he overheard between Mr. Schneider and his
wife. Warren Schneider Junior could not hear the other side of the conversation.
He testified he only heard parts of the conversation and was trying not to
eavesdrop. He did not hear what was said before or after the words he overheard
and could not remember the exact words spoken by Mr. Schneider.
This is
something you need to bear in mind when you consider what, if any, weight can
be given to Warren Schneider's evidence about the overheard conversation
.

[80]      As well, Warren Schneider Junior testified that at
the time Mr. Schneider phoned his wife he had drunk a mickey of vodka and
had taken some heroin. You should consider whether Mr. Schneider's drug
and alcohol use may have affected what he said.
It is up to you to decide
whether you believe Warren Schneider Junior about what Mr. Schneider said
and what Mr. Schneider meant by the overheard words. If you are in doubt
about any of that, you should ignore the evidence
.

[81]
Unless you decide that Mr. Schneider made a
particular remark or statement, you must not use it against him in deciding
this case
.

[85]      Occasionally during this trial a witness may have
expressed his or her opinion about the state of mind of someone else, including
Mr. Schneider. You must not rely upon such opinions for the truth or
validity of the opinion. It is irrelevant if a witness had an opinion about another
person's state of mind.

[86]
Another witness's opinion as to what Mr. Schneider
meant by his words is irrelevant to the question of what he meant
. It is
your job and your job alone to decide the meanings of Mr. Schneider's
words if you find he said them.

[Emphasis added.]

[99]

In addition to the final instructions, the jury was cautioned by Crown
counsel about WS as a witness, based on the manner in which he gave his
evidence:

Now, my submission to you is that you ought to approach
Warren Schneider Junior's evidence with caution. He has a criminal record in
the distant past, but my submission is that that does not bear greatly on his
credibility, it's simply too old. I do say you can examine his demeanour and in
my submission to you, his demeanour was not impressive. He was clearly, in my
submission, conflicted between one, testifying, and the way he was asking
frequently to refer to prior statements. You saw that. Request to, "Was it
written," or, "Did I say it," or words to that effect. And also
you must consider that he's testifying for the Crown in a second degree murder
prosecution against his brother.

I would  describe
Warren Schneider Juniors demeanour as terse, hesitant, and then at one point
or at points, offering unsolicited and unexpected evidence.

[100]

And, in his closing submissions, defence counsel emphasized the
evidentiary weaknesses inherent to a one‑sided conversation:

That's the problem with only hearing one side of a
conversation. He's telling her about the missing Japanese student. [The wife], you
have no evidence from her. The other person on this call, you've not heard
from. Was she saying, "What will they think you did?" And he said,
"I,"  even if he said, "I killed,"  that, "I killed
her," or, "I did it." And with respect, you can't even be
satisfied he said that, because Mr. Warren Schneider Junior himself can't
tell you what words were said. "I killed her," and, "I did
it," in the context of this case, are very different things potentially.
"I did it. I put the body in the suitcase"? Or, "I did it,"
as my friend would have you believe, "I killed her"? Or were the
words, "I killed her"? Well, we don't know because Mr. Schneider
Junior can't tell us what was said.

this is a very, very undependable bit of
conversation that is taken completely out of context and we have no context
because you dont have the person on the other end of the phone
. And what
we do have, we dont even know if that was what it was actually said because he
doesnt know the exact words. With  in my submission it leaves you with
virtually nothing at the end of the day.
Its contextually out of place and
you cant affix any value to it,
even if you did know what he overheard,
and he doesnt know what you overheard  what he overheard, so he cant  you
cant be convinced what he overheard.

[Emphasis added.]

[101]

In my view, the instructions about the overheard utterances,
considered with the closing submissions, ensured the jurors were fully aware of
the frailties of this evidence; equipped them with the tools they required to
assess its weight; and accurately explained the use that could be made of the
evidence.
The appellant suggests that the judge
incorrectly told the jury to consider all of the circumstances in the case to
determine the meaning of the words, including other evidence supportive of the
appellants guilt (an instruction found to be erroneous by the Court of Appeal in
Ferris,
at para. 42). However, I do not read the judges instructions
that way. Instead, she told the jurors it was up to them to decide how much
weight to give the evidence, and to remember that,
whatever
the amount
of weight they assigned, the overheard conversation formed only part of the
evidence in the case and was to be considered along with and in the same way
as all of the other evidence. I see nothing wrong with that instruction.

[102]

The
judges charge included the language found adequate by this Court in
Bennight
(at para. 92). The appellants trial counsel accepted the instructions
as appropriate. The defence had an opportunity to make submissions on the
charge, and after the judge completed her instructions, defence counsel did not
seek clarification or redirection on this issue. At the hearing of the appeal,
the Court asked appellants counsel what the judge should have said about the
overheard conversation that was not included in her charge. He was not able to
point to anything material. Instead, the appellants complaint about this evidence
is really about its admissibility.

[103]

For the
reasons given, I am of the view the trial judge correctly decided logical
relevance. The appellant has not shown error (let alone overriding error) in
the judges exercise of discretion on legal relevance and the weighing of
probative value and prejudicial effect. As such, the judge properly left the meaning
of the impugned words and their weight with the jury. A functional review of
the charge reveals that the instructions sufficiently cautioned the jury on
use.

[104]

As noted by Rothstein J. in
R. v. White
,
2011 SCC 13:

[56]       once jurors are
alerted to the risks that are not necessarily apparent to the average citizen,
they can be trusted to properly weigh the evidence. Our jury system is
predicated on the conviction that jurors are intelligent and reasonable fact‑finders.
It is contrary to this fundamental premise to assume that properly instructed
jurors will weigh the evidence unreasonably or draw irrational and speculative
conclusions from relevant evidence.

I would not accede to this ground of appeal.

B.

Should the Charge Have Included a Concurrence Instruction?

[105]

The
appellants second ground of appeal raises a question of law alone, reviewable
on a standard of correctness:
R. v. Shevalev
, 2019 BCCA 296;
Housen
at para. 8.

[106]

The
appellant says the trial judge erred in not instructing the jury on the concurrence
principle:
R. v. Cooper
, [1993] 1 S.C.R. 146. He contends
the judge should have made it clear to the jury that before convicting the
appellant of murder, the jury had to be satisfied beyond a reasonable doubt
that the
mens rea
and the
actus reus
of the alleged offence
coincided.

[107]

The Crown
says a concurrence instruction was not necessary in the circumstances of this
case. Nor was one sought by the defence at trial. The prosecution did not
allege that the appellant committed multiple unlawful physical acts against Ms. Kogawa
that caused her death, sequentially or otherwise. Rather, the
actus reus
of
the murder was said to consist of one act, namely, physically assaulting Ms. Kogawa
by covering her nose and mouth, causing her to asphyxiate.

[108]

In her final instructions, the judge told the jury that to find the appellant
guilty of murder, the jury had to conclude that: (1) the appellant
committed an unlawful act; (2) the unlawful act caused Ms. Kogawas
death; and (3) the appellant had the intent required for murder. She then
specified the unlawful act in question:

[120]    The Crown says the unlawful act in Count 1 [murder]
is
an
assault.
The Crowns theory is that Mr. Schneider
asphyxiated or smothered Ms. Kogawa
. I tell you as a matter of law
that doing such a thing [constitutes]
an
assault contrary to the
Criminal
Code
, and is
an
unlawful act.

[121]    The Crown must prove beyond a reasonable doubt that Mr. Schneider
committed
the unlawful act of assault
.

[Emphasis added.]

[109]

The judge next instructed the jury on causation: Did Mr. Schneider's
Unlawful Act
Cause Ms.
Kogawa's Death?

(emphasis added). She then moved to the intent required for murder and
explained the two forms of intent prescribed by s. 229(a) of the
Code
.
Section 229(a) reads:

Culpable homicide is murder

(a)
where the
person who causes the death of a human being

(i)
means to
cause his death, or

(ii)
means
to cause him bodily harm that he knows is likely to cause his death, and is reckless
whether death ensues or not;

[110]

The judge told
the jury that in deciding whether the Crown proved one of these forms of intent,
the jury was obliged to consider all the evidence,
including the nature of
the harm inflicted
, and anything said or done in the circumstances
(emphasis added). She summarized the relevant evidence, and, in her summary, identified
the physical harm attributable to the appellant by reference to the gestures he
made during his statement to police, consistent with covering Ms. Kogawas
nose and mouth.

[111]

After
addressing Count 2 on the Indictment, the judge summarized the positions
of the parties. The Crowns position on murder was stated this way:

Mr. Schneider caused the death of Ms. Kogawa on
September 8th, 2016, by smothering or asphyxiating her.
He assaulted her by
blocking her ability to breathe by placing his hands and fingers over her mouth
and nose
. The assault killed her.

[Emphasis added.]

[112]

This case
was left with the jury as a case involving a single unlawful actasphyxiation
by covering the nose and mouth. Adopting the language of Frankel J.A. in
Shevalev
,
the covering of the nose and mouth was the starting and ending point of the
actus
reus
 (at para. 74). A concurrence instruction is generally only required
where death results from a series of unlawful acts (for example, repeated blows
to the head over several minutes) and those acts formed part of a single or
continuous transaction. In those circumstances it is necessary to explain to
the jury that to convict of murder, the Crown must prove that one of the two
intents for murder coincided at some point in time with the continuous transaction:
Cooper
at 15758, 16061;
Shevalev
at paras. 53, 72. I agree
with the Crown that in the context of this case it was not necessary for the
trial judge to provide a concurrence instruction. In fact, doing so would have
likely confused the jury.

[113]

From the
charge, I am satisfied the jury would have understood that to convict the
appellant of murder, it had to find beyond a reasonable doubt that he committed
the unlawful act of assault by covering Ms. Kogawas nose and mouth.
Furthermore, by doing so, he contributed significantly to her death. Finally,
the jury had to find that when the appellant covered Ms. Kogawas nose and
mouth, he either intended to kill her, or intended to cause bodily harm that he
knew was likely to result in her death, and he was reckless as to whether death
ensued
.
There is nothing erroneous about this aspect of the judges charge
and it properly equipped the jury to decide the issue of intent.

[114]

I would
not give effect to this ground of appeal.

C.

Did the Judge Mishandle a Question from the Jury?

[115]

After she delivered her final instructions, the judge received a
question from the jury:

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

[Emphasis in the original.]

[116]

Question 3 in the written charge asked: Did Mr. Schneider Have
the Intent Required for Murder? It was immediately followed by these two
paragraphs:

[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. Kogawas
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 added.]

[117]

Paragraphs 109111 of the charge, also referred to in the jurys question,
instructed on the fault for the included offence of manslaughter and explained
the difference between murder and manslaughter:

[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 persons 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.

[Emphasis added.]

[118]

Defence
counsel interpreted the jurys question as seeking clarification on the meaning
of bodily harm specific to murder:

[DEFENCE COUNSEL]: Thats my read is theyre asking of what
type of  what is bodily harm seems to be the  is it that he knew it was so
dangerous and so serious it was likely to kill her or is it  is it whats
described in 109 as any hurt or injury that interferes with a persons health
or comfort and is more than just a brief or minor nature.

I dont read it that theyre asking for an expanded
definition of intent. I read it theyre asking for
an expanded definition of
bodily harm
.

in 109 its talking about any hurt or injury that
interferes with the persons health or comfort and is more than just brief or
of a minor nature. And 133, its bodily harm he knew was so dangerous and
serious it was likely to kill her.
So it may be that what theyre really
looking for is the definition of bodily harm which is defined in s. 2 of
the
Code
.

THE COURT: And are you suggesting that I read out s. 2,
the definition of bodily harm, in the
Code?

[DEFENCE COUNSEL]:
Yes. Im saying that whether youre
looking at 109 or 133, bodily harm is defined as this
. Its the same  however
theyre reading this, the term bodily harm in both paragraphs means the same
thing.

[Emphasis added.]

[119]

Ultimately,
the judge, the defence and the Crown agreed that the correct way to answer the
jurys question was to tell the jurors there is no difference in the definition
of bodily harm as it applies to murder and manslaughter, and to provide them
with the statutory definition of that term.

[120]

The judge did precisely that, using s. 2 of the
Code
:

Members of the jury, you have asked us to expand on the
definition of bodily harm in question 3 of intent required for murder versus
bodily harm as described in paragraph 109 and 111.

The bodily harm in both is the same. Bodily harm is defined
in the
Criminal Code
in the following manner:

Bodily harm means any hurt or injury to a person that
interferes with the health or comfort of the person and that is more than
merely transient or trifling in nature.

And for paragraph 109, when bodily harm is mentioned in
paragraph 109 and 110, and then in paragraph 134
[sic]
under question 3,
that is the definition of bodily harm. All right?

So hopefully that responds to your question. If you have any
additional questions, we will assist you with those. All right?

Do you want that definition read again or ? Youre fine
with it?

A JUROR: [Indiscernible/not at microphone].

THE COURT: One more time? All right. I will read the
definition one more time. Bodily harm is defined in the
Criminal Code
as
meaning

any hurt or injury to a person that interferes with
the health or comfort of the person and that is more than merely transient or
trifling in nature.

And whenever the words bodily harm are used in the
charge, that is what is being referred to
. All right?

So hopefully that answers your question and well adjourn.
Thank you.

[Emphasis added.]

The jury posed no further questions. Instead, the judge
was told that the jurors wanted to carry on with their deliberations.

[121]

The
appellant says that in responding to the jurys question, the trial judge erred
in two ways: (1) she should have asked the jury for clarification on the
question because it was ambiguous; and (2) she failed to answer the question
correctly. Both issues involve questions of law, reviewable on a standard of
correctness:
R. v. Brydon
, [1995] 4 S.C.R. 253 at para. 2;
Housen
at para. 8.

[122]

On the
first of the alleged errors, the appellant rightly states that a trial judge
has a duty to clarify a question from the jury where there is any ambiguity or
room for doubt as to the meaning of the question:
R. v. Shannon
,
2011 BCCA 270 at para. 51. See also
R. v. Bradshaw
,
2020 BCCA 97 at paras. 1927;
R. v. Penner
,
2019 BCCA 76 at para. 40;
R. v. Kahnapace
,
2010 BCCA 227 at paras. 4952.

[123]

However, I
agree with the Crown that in the circumstances of this case, seeking
clarification was not necessary and the appellant has failed to establish
reversible error on this aspect of his argument.

[124]

First, I
do not see the question as ambiguous. The jury was plainly asking whether the
definition of bodily harm is different for murder than it is for manslaughter:
Could you please expand on the definition of bodily harm  for
murder
versus
manslaughter (emphasis added). Second,
after discussing possible interpretations of the question, the trial judge and
counsel reached consensus on what was likely troubling the jury, revealing that
the question was understandable. Third, the consensus adopted the position of defence
counsel. The appellant suggests that the jurys question was incapable of an answer
in the absence of clarification; however, he raises that issue for the first
time on appeal. Finally, the judge invited the jury to return with additional
questions if necessary. The jury did not do so, suggesting there was no longer
any confusion. This is a relevant factor for consideration in the error analysis:
R. v. Layton
, 2009 SCC 36 at para. 32.

[125]

On the
second of the alleged errors, the appellant also rightly states that questions
posed by a jury must be answered clearly, correctly and comprehensively. That
is so even where the original instruction was correct:
R. v. S. (W.D.)
,
[1994] 3 S.C.R. 521 at 53031, 537;
R. v. W.(D.)
,
[1991] 1 S.C.R. 742 at 75960;
R. v. Naglik
, [1993]
3 S.C.R. 122 at 13839.

[126]

He
contends that in this case, the answer provided by the trial judge was legally
incorrect. The appellant says there is a substantive difference between the
degree of bodily harm required to convict an accused of murder and the degree
of bodily harm required to convict of manslaughter. It is his position that
s. 229(a)(ii) of the
Code
requires factual proof of
very
serious
bodily harm, while a conviction for manslaughter requires proof of
bodily harm that is simply more than brief, trivial, trifling or
minor (appellants factum at paras. 4446). Consequently, the judge was
wrong in law to tell the jury that the s. 2
Code
definition of
bodily harm applies to both offences.

[127]

In making
that argument, the appellant relies heavily on
R. v. Miljevic
,

2010 ABCA 115,
affd 2011 SCC 8. In that case, a jury convicted the accused of
second degree murder. The accused admitted to committing manslaughter, but
denied he had the intent required for murder. In light of the admission, the
trial judge did not charge the jury on the legal elements of manslaughter.
Rather, he focused the jurys attention on whether the Crown proved the state
of mind required for murder (at para. 39).

[128]

The
primary issue on appeal was whether the judge was obliged to instruct the jury
on the elements of manslaughter when the accused had admitted the commission of
that offence (at para. 50). In dissent, OBrien J.A. held that
because manslaughter was a choice left with the jury, it remained a relevant
legal issue and the trial judge ought to have instructed more fully on that
offence (at para. 79). A full instruction was of added importance in
Miljevic
because after delivery of the final instructions, the jury returned with a
question, asking for assistance on the difference between murder and
manslaughter (at para. 42).

[129]

During the course of his analysis, OBrien J.A. noted that Mr. Miljevic
posited a theory about the origin of the jurys confusion. He said the jurys question
arose from the definition of bodily harm that the trial judge used when
explaining the secondary intent for murder under s. 229(a)(ii):

[85]      The appellant suggests on appeal that the question may
have arisen because the distinction between murder and manslaughter had been
blurred for the jury in a part of the charge instructing it on the secondary
intent for murder under section 229(a)(ii) of the
Criminal Code
. That
section speaks in terms of bodily harm that the accused knew was likely to
kill. However, the trial judge, during this part of his charge while defining
murder, expanded upon bodily harm as meaning:

. . . any hurt or injury that interferes with health or
comfort, and it has to be more than something that is just brief or fleeting or
minor in nature.

[86]
This quality of bodily harm relates to the
offence of manslaughter, not murder, and may have caused some confusion for the
jury and caused the jury members to diminish the intent required to establish
murder
. This is especially so as this erroneous part was repeated to the
jury in response to its question.

[Emphasis added.]

[130]

OBrien J.A. was not persuaded that the manner in which the trial judge
defined bodily harm was the source of the confusion:

[87]
it is not at all clear that this brief
passage in the charge was the source of confusion
. The trial judge, in at
least two other passages, had said that in the case of bodily harm for murder,
there must be either intent to kill, or intent to cause bodily harm that the
accused knew was likely to kill, and he was reckless whether the victim died.

[Emphasis added.]

[131]

However, he went on to note that Mr. Miljevic was not
obliged to identify a reason for the jurys struggle before he could succeed on
his ground of appeal. What mattered was
that the jury wanted to be informed as to what, as a matter
of law, constituted manslaughter. The question was directed at a relevant and
live issue and [he could] think of no good reason for depriving the jury of
that instruction (at para. 88). OBrien J.A. considered the judges
response to the question to be inadequate (the judge simply referred the jury
back to his original instructions on the intent for murder), and he would have
ordered a new trial on that basis.

[132]

The majority in
Miljevic
held that most of the grounds of
appeal must fail for the reasons [given by OBrien J.A.] (at para. 1).
This included the defence suggestion
that bodily harm was misdefined in
the charge
, a contention that, from the majoritys perspective, appeared
to be founded on yanking one sentence totally out of its context as a
definition of one thing only (at para. 1; emphasis added). The majority
then reached a different conclusion from OBrien J.A. on the adequacy of
the response to the jurys question, finding that it was sufficient.
Accordingly, they dismissed the appeal from conviction.

[133]

Mr. Miljevic appealed as of right to the Supreme Court.
Cromwell J., writing for the majority, dismissed the appeal, concluding
that the trial judge did not err in his answer to the question posed by the
jury. There is no discussion by Cromwell J. of the definition of bodily harm.

[134]

It is the appellants position that
Miljevic
authoritatively
established a legal principle that subjective foresight is not the only
significant difference between murder and manslaughter. He says the majority
decision, upheld by the Supreme Court, agreed with OBrien J.A. that
the
degree of bodily harm required for second degree murder
is qualitatively
different than that required for manslaughter (appellants factum at paras. 4647;
emphasis added). As a result, it cannot be that the definition of bodily harm
in s. 2 of the
Code
applies to both offences, and the trial judges
use of that definition in responding to the jurys question amounts to
reversible error. The appellant says the judge was obliged to tell the jury that
the appellant was only guilty of murder if the Crown proved beyond a reasonable
doubt that he inflicted dangerous and serious harm on Ms. Kogawa.

[135]

With respect, I agree with the Crown that the appellant has
misinterpreted
Miljevic
. As I read that decision, the majority did not
find that the trial judge erred in defining bodily harm under s. 229(a)(ii)
as hurt or injury that interferes with health or comfort, and [that] has to be
more than something that is just brief or fleeting or minor in nature (cited
at para. 85 of the decision). At para. 1 of their reasons, the majority
explicitly rejected

any suggestion that the trial judge had misdefined
the term bodily harm in his charge on murder. I also agree with the Crown
that in upholding the majoritys decision, the Supreme Court impliedly adopted
this same perspective. At paras. 23 of Justice Cromwells reasons, he
distinguishes between murder and manslaughter on the basis of the accuseds
mental
state
, not because of a difference in the meaning of bodily harm as
applicable to each offence (2011 SCC 8).

[136]

In my view, the trial judge in this case was correct to tell the
jury, in answer to its question, that the definition of bodily harm is the
same for murder and manslaughter. Section 2 of the
Code
applies,
offering a generously worded definition that allows for a broad spectrum of
physical hurts or injuries:
Cooper
at 150 (per Lamer C.J. in
dissent). The term bodily harm has long been accepted in the
Criminal Code
context to encompass everything from non‑transient or trifling minor
injuries that resolve themselves relatively quickly, to injuries that are severe
and permanent:
R.

v. Saulis
, 2020 NBCA 36 at para. 12,
citing
R. v. Gejdos
, 2017 ABCA 227.

[137]

In
R. v. Murray
(1994), 20 O.R. (3d) 156
(C.A.), both an original charge on murder and a recharge defined bodily harm
under s. 229(a)(ii) using substantially the same language as s. 2.
The appeal court found that the trial judge erred by not sufficiently relating
the trial evidence to the subjective foreseeability of death; however, it did
not take issue with the judges definition of bodily harm.

[138]

The difference between proof of murder
and proof of manslaughter lies not in the degree or type of bodily harm factually
inflicted by the accused. Rather, what distinguishes these offences from one
another is the
knowledge
that accompanies the harm. Section 229(a)
requires proof beyond a reasonable doubt that the accused unlawfully inflicted
bodily harm with the intent to kill, or that the accused knew the bodily harm was
likely to cause death, and was reckless as to whether death ensued. Trial
judges commonly explain the second of these two intents using language that
mirrors the majoritys discussion in
Cooper
:  the Crown must
demonstrate that the accused intended to cause bodily harm that he knew
was
ultimately so dangerous and serious
that it was likely to result in the
death of the victim (at 159; emphasis added). Indeed, this wording has been
incorporated into the Canadian Judicial Councils model jury instruction on the
intent for murder:

To prove
that
([name of the accused])
had the intent required for murder, the Crown must prove beyond a reasonable
doubt one of two things, either:

1.     that
(NOA)
meant to cause
([name of complainant])s
death;
or

2.     that
(NOA)
meant to cause
(NOC)
bodily harm that s/he
knew was likel
y
to cause his/her death and was
reckless whether death ensued or not.

In other words, you must decide whether the Crown has proved
beyond a reasonable doubt either that
(NOA)
meant to kill
(NOC)
,
or that
(NOA)
meant
to cause
(NOC)
bodily
harm that s/he knew was so dangerous and serious that s/he knew it was likely
to kill
(NOC)

and proceeded despite
his/her knowledge of that risk.

[
Model
Jury Instructions
(online), Offence 229(a): Second Degree Murder
; emphasis added.]

[139]

However,
the purpose of including words such as dangerous and serious is not to meet
a legal requirement for factual proof of a higher degree of bodily harm, or a
more serious type of bodily harm, than that required for the offence of
manslaughter. Instead, the words are included to assist the jury with its
deliberations on the
subjective foreseeability of death arising from the
bodily harm alleged to have been inflicted
. It is proof of subjective
foreseeability of death that distinguishes murder from manslaughter. Whatever
the unlawful act may consist of in a murder prosecution, it is a vital
element of the secondary intent for that offence (s. 229(a)(ii)) that the
infliction of bodily harm as part of the act be accompanied by knowledge that
it was likely
to
cause death:
R. v. Nygaard
, [1989] 2 S.C.R. 1074 at 1088.
The emphasis is on the accuseds awareness of the nature of the act committed
against the victim, and its likely consequences, not proof of a particular form
or level of bodily harm.

[140]

A proper instruction
on the secondary intent for murder is one that ensures the jury understands
that the accused must foresee a likelihood of death flowing from the bodily
harm that
he or she is occasioning the victim
:
R. v. McCracken
,
2016 ONCA 228 at para. 102 (internal references omitted;
emphasis added). Describing that harm as grave, dangerous or serious alerts
the jurors to the need to consider the nature of the unlawful act alleged to
have been committed when they decide whether the Crown has proved, beyond a
reasonable doubt, foreseeability of death. As made clear by the trial judge at para. 135
of her written charge, if a jury has a reasonable doubt about that aspect of the
case, it cannot convict of murder.

[141]

Under
s.
229(a)(ii),
the jurys focus is properly on what the accused
foresaw
at the time the
act was committed, not the gradation of the bodily harm at issue, whether that
bodily harm fell within a particular category, or whether it met a particular
standard. In my view, the appellants position on this third ground of appeal asks
the Court to effectively rewrite s. 229(a)(ii) of the
Code
and
introduce as an essential element of the offence of murder a bodily harm
threshold along the s. 2 spectrum that, if not satisfied as a matter of
proof, precludes a conviction. I am not prepared to do that. In
Cooper,
Lamer C.J.
opined that the
Codes
definition of bodily harm provides general
guidance on the interpretation of that term under s. 229(a)(ii) (then
s. 212(a)(ii)) (at 150). In the absence of specific language from Parliament
excluding the application of the definition for use in the murder provisions, I
agree.

[142]

There is no
indication from s. 229(a)(ii) that Parliament intended anything other than
the s. 2 definition to apply. As aptly noted by the Crown, where
Parliament has intended to qualify the term bodily harm for use with a
particular offence, such as grievous bodily harm under s. 25(3) (protection
of persons acting under authority), or, serious bodily harm under s. 83.02
(terrorism‑related offence), it has made that intention explicit (respondents
factum at para. 68). There is no such qualification built into s. 229(a)(ii).

[143]

In addition
to providing the jurors with the statutory definition of bodily harm, it
would have been preferable, in my view, for the trial judge to remind the
jurors, consistent with paras. 110111 of the written charge, that what
distinguishes murder from manslaughter is the mental state and that murder
requires one of the two intents under s. 229(a). However, on the record in
this case, I am satisfied that the absence of the additional explanation is not
fatal.

[144]

In his closing submissions, Crown counsel made it clear that the bodily
harm the appellant was said to have inflicted on Ms. Kogawa was the blocking
of her airways through pressure applied to her nose and mouth:

But the Crown doesn't necessarily have to prove the accused
meant to kill Natsumi Kogawa. That's one way. It is sufficient if you're
satisfied that he intended to cause Natsumi Kogawa bodily harm that he knew was
likely to cause her death and was reckless whether death ensued or not.

Bodily harm is defined in the
Criminal Code
. It says:

bodily harm means any hurt or
injury to a person that interferes with the health or comfort of the person and
that is more than merely transient or trifling in nature

I say applying sufficient
pressure to someone's airways for a sufficient duration to render them
unconscious is beyond a doubt bodily harm and that everybody knows that death
is likely if you do that
.

[Emphasis added.]

[145]

The judge
told the jury that to convict of murder, it had to find that the bodily harm alleged
by the Crown was inflicted with an intent to kill or knowledge that it was
likely to cause Ms. Kogawas death. The judge did not err in her
instructions on the secondary intent for murder and they are not challenged in
the appeal. In his closing submissions, trial counsel for the Crown also correctly
informed the jury of the s. 229(a) requirements, at least four times.

[146]

In
explaining the included offence of manslaughter, the judge drew a clear
distinction between murder and manslaughter based on their respective fault requirements.
In her final instructions, she included the language that the appellant says is
critical to the murder analysis. The judge told the jury that the Crown had to
prove 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 added).

[147]

Nothing in
the answer to the jurys question is inconsistent with or detracts from the instructions
in the main charge. In her answer, the trial judge drew the jurys attention
back to her written charge, specifically referring to paras. 109111.
Those paragraphs included an explanation of the distinction between murder and manslaughter,
with reference to the differences in intent. Trial counsel for the appellant
did not ask for a further instruction. Nor did the jury return with additional questions,
an avenue left open by the trial judge. The fact that the jurors continued their
deliberations with the availability of the written charge, including paras. 110
and 111, mitigates the possibility of prejudice:
R. v. Moo
,
2009 ONCA 645 at para. 62.

[148]

In my
view, this is not a case where the answer to the jurys question was inconsistent
with what was said in the main charge, nor was it erroneous standing on its
own:
Brydon
at para. 19. The main charge did not contain errors
that required correction in the answer. Nor did the answer to the question exacerbate
an existing error or give rise to a new one:
Kahnapace
at para. 58.
On this record, I see no reasonable possibility of the jury having been misled
and convicting the appellant of second degree murder based on a diminished form
of intent.

[149]

Accordingly,
I would not accede to this ground of appeal.

DISPOSITION

[150]

I would grant the appellant an extension of time to file his appeal from
conviction to April 9, 2019. However, for the reasons provided, I would dismiss
the appeal.

The
Honourable Madam Justice DeWitt‑Van Oosten

Reasons for Judgment of the Honourable Mr. Justice
Goepel:

INTRODUCTION

[151]

I have had
the privilege of reading in draft form the reasons of my colleague Justice
DeWitt-Van Oosten. I agree with and adopt her reasons dismissing the second and
third grounds of appeal. With respect, however, to the first ground of appeal,
I am unable to agree with her conclusion that the trial judge did not err in
admitting evidence of the phone conversation overheard by the appellants
brother.

[152]

For the
reasons that follow, I conclude that the judge erred in admitting the phone
conversation.

[153]

Accordingly,
I would allow the appeal and order a new trial.

BACKGROUND

[154]

An
overview of the evidence, the Crown and Defence theories, and the parties
positions on the issues underlying the appeal have been thoroughly set out by
my colleague and need not be repeated in detail. That said, I will briefly
review the background to the phone conversation on which my reasons focus.

[155]

On
September 27, 2016, after seeing a picture from a news article with the
appellant and Ms. Kogawa together, the appellants brother, Warren
Schneider Jr. (WS) travelled to Vernon to meet with the appellant. The
appellant shared with WS some details about his relationship with Ms. Kogawa
and their three dates together.

[156]

The next
morning, the appellant told WS he planned on buying some heroin with which to
kill himself. They went to a beer store, purchased alcohol, and the appellant
bought $50 worth of heroin. Before the appellant injected the heroin, he told
WS the location of Ms. Kogawas body. The appellant said Ms. Kogawas
body was in a suitcase, and, after he killed himself, WS should tell the police
the bodys location. The appellant did not tell WS that he had killed Ms. Kogawa
or had otherwise caused her death.

[157]

The
appellant failed to die from the heroin injection. After the failed suicide
attempt, the appellant asked to use WSs phone to call his wife in Japan. WS
gave the appellant his phone and stood roughly ten feet away.

[158]

The
telephone call lasted approximately 13 minutes. On
voir dire,
WS
testified that he could only recall two specific fragments of the conversation:
at the beginning, he heard the appellant ask, "Did you see the news of the
missing Japanese woman, student?" and sometime in the middle of the
conversation, he heard the appellant say, I did it
and
I killed her.
WS testified that he could not remember the exact words used, nor could he
remember any part of the conversation other than the two fragments. The
appellants wife did not testify; she lives in Japan and is not a compellable
witness.

[159]

On
cross-examination on the
voir dire,
WS confirmed he did not recall the
full conversation. He testified that he had been intentionally trying not to
eavesdrop or hear what the appellant was saying. He had not heard anything the
speaker on the other end of the phone had said. WS confirmed that he had given
different testimony at the preliminary inquiry, where he had testified that the
appellant had said, have you heard the news in relation to Natsumis death?
and I did it
or
I killed her. WS confirmed he did not know the exact
words used, but his feeling was that the appellant was admitting
responsibility for Ms. Kogawas death.

[160]

After the
voir dire,
the trial judge admitted the evidence,
finding there was sufficient context to allow a jury to conclude the meaning of
the uttered words: RFJ. She concluded:

[20]      In my opinion, it is apparent from Warren Schneider
Jr.s evidence on the
voir dire
that there is some evidence on which a
jury could conclude the meaning of the uttered words. While he was unable to
recall the exact words, Warren Schneider Jr. testified about the context of the
conversation and that the gist of the conversation was that Mr. Schneider
was taking responsibility for Ms. Kogawas death.

[21]      In my view, the
probative value of the evidence outweighs the prejudicial effect that it might
be used improperly. The prejudicial effect can be ameliorated by a strong
caution to the jury about what use can be made of the evidence.

[161]

After the
voir
dire,
on cross-examination, WS confirmed that he had not overheard anything
the appellants wife had said and that he had been trying not to eavesdrop. WS
was certain that the appellant had asked his wife at the start of the
conversation if she had heard about Ms. Kogawas disappearance. WS
confirmed he did not know the exact words spoken by the appellant or if the
appellant had been asked a question about Ms. Kogawa or something else
when he was overheard to say I did it or I killed her. He agreed that
portion of the conversation could have been completely unrelated to Ms. Kogawa.
He testified that he did not know if the words I did it or I killed her had
been said at the start, in the middle, or at the end of a sentence.

DISCUSSION

A.

Overview

[162]

I am in
general agreement with my colleagues review of the relevant legal principles.
I agree with my colleague that
Ferris
on which I will comment in greater
detail belowis the jurisprudential starting point for the admissibility
analysis. Like my colleague, I do not believe that
Ferris
established a
class-based inadmissibility principle that precludes the admission of
overheard, one-sided utterances. The conversation is admissible if it is
relevant to an issue and its probative value is not outweighed by its prejudicial
effect.

[163]

The Crown
sought to tender the words overheard by WS as an admission of responsibility
for Ms. Kogawas death. I agree with my colleague that the trial judge was
not required to determine whether the overheard utterances were, in fact, an
admission; rather, she had to determine whether the words were capable of being
an admission of responsibility for Ms. Kogawas death.

[164]

This is
where I part company with my colleague. I take the view that the uttered words
were not capable of being an admission of responsibility for Ms. Kogawas
deathand are therefore not relevant and, accordingly, inadmissible. The
evidence should not have been put before the jury.

B.

Standard of Review

[165]

The
threshold test for the admissibility of all evidence is logical relevance. For
logical relevance, the standard is correctness:
R. v. Schwartz
, [1988] 2
S.C.R. 443 at 482.

C.

The Ferris Decision

[166]

Before
returning to the admissibility of the statements at issue in this case, I wish
to first review in further detail the
Ferris
decision, which, as my
colleague notes, is the starting point for the admissibility analysis. Mr. Ferris
was charged with the murder of David Parker, his former romantic partner. Mr. Ferris
was arrested for murder and taken into police custody. Staff Sergeant Schmidt
was in charge of gathering and collecting evidence. Sgt. Schmidt entered the
interview room that Mr. Ferris was in and advised him he would be charged
with Mr. Parkers murder. Sgt. Schmidt advised Mr. Ferris of his
right to silence and his right to counsel.

[167]

Mr. Ferris
then asked to make a long-distance phone call to his father. Sgt. Schmidt
placed the telephone call and, upon reaching the accuseds father, handed the
phone to Mr. Ferris. A common cloth divider separated Sgt. Schmidts desk
from the desk used by Mr. Ferris. As Sgt. Schmidt walked towards his own
desk, he heard Mr. Ferris say the words: Ive been arrested. Sometime
later, when Sgt. Schmidt was approximately 12 feet away from the accused, he
heard him say the words: I killed David. Sgt. Schmidt testified he had not
heard what else was being said and that it had been his intent not to hear. He
did not know if the words I killed David had come at the beginning, middle,
or end of a sentence.

[168]

The trial
judge admitted the evidence. He said the statements were made voluntarily. He
found they were relevant to the charge before the court and that it was for the
trier of fact to determine the weight to be given to the statement.

[169]

A majority of the Alberta Court of Appeal reversed the decision. Justice
Conrad, writing for the majority, framed the issue as follows:

[15]       The issue here is not
whether the officer is telling the truth that the accused uttered these words,
but whether any meaning can be put on the words. Are they an admission?
Certainly if they are, they are relevant and highly probative. While the jury
ultimately makes that decision, the trial judge must determine whether there is
evidence on which they could so decide.

[170]

Justice Conrad went on to conclude there were no circumstances or
context from which the true meaning of the words could be inferred. In this
regard, she said:

[17]      The facts of this case are unique in that there
exist no circumstances or context from which the true meaning of the words can
be inferred. It is uncontradicted that the words were part of an utterance
only, and that other words passed both before and after those words. It is
uncontradicted that the words could have come at the beginning of a sentence or
at the end of a sentence. In fact, the words may have been a part of a question
such as "You don't think I killed David?" or a statement such as
"They think I killed David" or "They think I killed David but I
didn't". His father could have asked him what the police think he did and
he could have replied "I killed David". Those utterances do not prove
any fact in issue and are not an admission of guilt. Indeed, on the basis of
the uncontradicted evidence, the possibility of statements with the words
"... I killed David ..." contained therein are numerous.
There is
no way of determining the meaning or thought to be attributed to the words. A
trial judge could not ascertain, nor could the jury, the meaning of the words
.
The difficulty is compounded by the acknowledgement of Sergeant Schmidt that
this accused was talking in a slow fashion, pausing, repeating himself or
trailing off into nothing. The circumstances are all before the trial judge and
he should determine whether or not the evidence is sufficient for a jury to
conclude the meaning of the words.
Without meaning being ascertainable the
words are not relevant to any fact in issue and they have no probative value
.

[Emphasis added.]

[171]

Justice Conrad stressed that the issue was not whether the words were
spoken, but whether they were capable of meaning, saying:

[26]      In this case, however, it is not a question of
whether the utterance was given. Here words were spoken. What is in issue here
is whether or not the words
were capable
of meaning, for without meaning
they have no relevance. The officer cannot testify as to the gist of Ferris'
utterance, in this particular case it cannot be determined if "... I
killed David ..." was in fact an admission he killed David. The onus rests
on the Crown to prove the words have relevance.

[Emphasis in original.]

[172]

In Justice Conrads view, it was impossible to ascertain the meaning of
the words. In this regard, she said:

[27]      In my view, the trial judge, in his ruling
following the
voir dire,
never directed his mind to the issue of
completeness and whether or not words incapable of definitive meaning could be
relevant to anything. He said in his ruling that all the circumstances could be
brought out and the jury could assess the weight to be given to it. What
circumstances?
He had all the circumstances and it was his duty to determine
whether or not on the evidence before him
a properly instructed jury could
determine from the fragmented utterance the meaning of the whole
. He
did not appear to direct his mind to that issue. This is not a question of
weight. The question is whether or not this accused made a statement which is
relevant. If it was an admission, I agree with McClung, J.A. that it is highly
probative.
However, because the Crown case makes it clear words were spoken
before
and
after,
and the utterance was incomplete, it is impossible to
ascertain the meaning of the words. Thus no weight can be given to it and the
prejudice of its introduction is easy to contemplate
. There is a real
prejudice of forbidden reasoning here. 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 murder, and that therefore he admitted that he did. That
finding would then be used to raise the probability of guilt to a conclusion of
guilt. The danger implicit in that type of circuitous reasoning is obvious.

[Underline emphasis added; italic
emphasis in original.]

[173]

Justice Conrad held that it was impossible to conclude that the words
were capable of constituting an admission. Accordingly, the words were not
legally probative to a fact in issue. In this regard, she explained:

[31]      The trial judge must be satisfied there is some
evidence upon which a jury could conclude the meaning of the uttered words. On
the evidence introduced at the
voir dire
it would be impossible for a
properly instructed jury, acting reasonably, to come to a conclusion as to what
these words meant on any standard of proof.
A trier of fact could not
ascertain the accused's meaning when he uttered the words. Certainly, it would
be impossible to conclude they constituted an admission made by the accused.
Therefore the words are not logically probative of a fact in issue, are not
relevant, are inadmissible and should not have been left with the jury.

[Emphasis added.]

[174]

Justice Conrad then went on to consider the balance between probative
value and prejudicial effect. In this regard, she said:

[37]      The last thing to
consider is the balance between probative value and prejudicial effect. The
statement "... I killed David ..." has no probative value given that
we do not know the words which surrounded the utterance, the utterance was just
as likely to be meaningless as inculpatory or even exculpatory. In Smith, of
course, they were dealing with a complete statement. Also, as mentioned
earlier, this evidence could never meet the test of probative value versus
prejudicial effect. The extreme prejudice is so great its exclusion must be
favoured.

[175]

Ferris
was appealed to the Supreme Court of Canada: [1994] 3
S.C.R. 756. The Court did not call upon the accused to respond to the Crowns
submissions. Justice Sopinka for the Court gave brief oral reasons dismissing
the appeal. He held that even if the overheard utterance had any relevance, it
should be excluded. In that regard, he said at 756:

In
our opinion, with respect to the evidence that the respondent was overheard to
say "I killed David", if it had any relevance, by reason of the
circumstances fully outlined by Conrad J.A., its meaning was so speculative and
its probative value so tenuous that the trial judge ought to have excluded it
on the ground its prejudicial effect overbore its probative value.

D.

Are the Words Capable of Being an Admission

[176]

The
starting point is whether the words I did it or I killed her are capable of
interpretation as an admission of responsibility for Ms. Kogawas death.
This engages the question of logical relevancewhether the evidence tends to
make a fact more or less likely:
Arp
at para. 38. While I agree
with my colleague that logical relevance is a low threshold, in my opinion, a
jury could not give meaning to the overheard fragment. Without an ascertainable
meaning, the words are not relevant to any fact in issue, and they have no
probative value. As such, I find that the evidence is irrelevant and thus
inadmissible.

[177]

In my
opinion, this case is more problematic than
Ferris
because, in this
case, the witness does not recall the actual words the accused is alleged to
have spoken. Regarding the overheard fragment I did it or I killed her, WS
was unable to confirm exactly which of the two phrases the appellant had said
on the phone call. I did it and I killed her carry vastly different ranges
of meaning. Those words are qualitatively different. Even setting aside any
words that may have come before or after, the two phrases raise very different
implications.

[178]

I would
respectfully suggest that the words I did it said six minutes into a
conversation with no surrounding context are not capable of being an admission.
The words may or may not have had anything to do with Ms. Kogawas death.
They could have had a completely innocent meaning, such as a response to a
question from his wife along the lines of, Did you send our son the game he
wanted? Answer: I did it. Even if the words concerned Ms. Kogawa, they
are not necessarily an admission of responsibility for her death. I did it
could refer simply to placing Ms. Kogawas body into the suitcase, which
the appellant conceded to having done. For example, the wife could have asked,
Did you move the body? Answer: I did it.

[179]

The words
I killed her are, of course, more problematic and prejudicial. One can
envision several circumstances in which such words might well be an admission
of guilt. However, that does not inevitably follow, as the reasons in
Ferris
make so clear. In this case, the exact same phrase as in
Ferris
is an
issue. Like in
Ferris
, one can conjure various scenarios in which the
words would not be an admission. For example, the appellant could have been
asked, Why didnt you go to the police? Answer: [They would think] I killed
her.

[180]

The problem that arises from not knowing the exact words is highlighted
by the jury charge. In this regard, the judge told the jury:

[79]      You heard testimony from Warren Schneider Jr. about
a telephone conversation he overheard between Mr. Schneider and his wife.
Warren Schneider Jr. could not hear the other side of the conversation. He
testified he only heard parts of the conversation and was trying not to
eavesdrop. He did not hear what was said before or after the words he
overheard, and could not remember the exact words spoken by Mr. Schneider.
This is something you need to bear in mind when you consider what, if any,
weight can be given to Warren Schneider Jr.'s evidence about the overheard
conversation
.

[80]      As well, Warren Schneider Jr. testified that at the
time Mr. Schneider phoned his wife he had drunk a mickey of vodka and had
taken heroin. You should consider whether Mr. Schneider's drug and alcohol
use may have affected what he said.
It is up to you to decide whether you
believe Warren Schneider Jr. about what Mr. Schneider said, and what Mr. Schneider
meant by the overheard words. If you are in doubt about any of that, you should
ignore the evidence
.

[81]
Unless you decide that Mr. Schneider made a
particular remark or statement, you must not use it against him in deciding
this case
.

[86]      Another witness's opinion as to what Mr. Schneider
meant by his words is irrelevant to the question of what he meant.
It is
your job and your job alone to decide the meaning of Mr. Schneider's words
,
if you find he said them.

[Emphasis added.]

[181]

The judge
told the jury it was up to them to decide whether the appellant made a
particular remark or statement and that they must not use it against him unless
they decided he made a particular remark. With respect, there was no way the
jury could determine whether or not the accused said I did it or I killed
her because the witness who testified was unable to recollect what was said.

[182]

This
problem was compounded when WS testified that it seemed to him that the
appellant was admitting to the missing Japanese students death. WSs opinion
as to what the appellant meant by his words is, as the trial judge correctly
told the jury, irrelevant. It was for the jury to decide the meaning of the
accuseds words, and without evidence of the words spoken, it was impossible
for the jury to determine the meaning of the appellants words.

[183]

In this
case, there is no way of knowing what potentially was said before or after the
overheard utterances. WS was also unable to overhear the other half of the
conversation. Lacking these key pieces of context, there is nothing that would
allow a jury to determine the meaning of the utterances in a way that is not
dangerously speculative.

[184]

In
Ferris,
not knowing what preceded or followed the phrase I killed David made it
impossible to determine if the phrase was inculpatory or exculpatoryfor
example: the police think I killed David. My colleague notes that, unlike in
Ferris
,
the conversation in this case occurred before any police involvement, so there
was no possibility that the appellant was repeating police charges or
responding to a question about police allegations. The implication is the
absence of police involvement eliminates the possibility that the appellant was
responding to questions about what the police had thought he had done or any
accusations.

[185]

Respectfully,
I do not accede to this implication and cannot meaningfully separate this case
from
Ferris
on that point. It is entirely possible that the appellants
utterance was in response to anticipated police proceedings or a question from
his wife about the consequences of Ms. Kogawas death regarding the
appellant. For example, in response to the question what will the police
think? the appellant could very well have responded, [they will think because
I hid the body that] I killed her. Without knowing the words immediately
before or after the overheard fragment, there is no way of knowing whether the
fragment was part of an exculpatory or inculpatory sentence. As in
Ferris,
the
recipient of the call did not testify to the utterances meaning. As such, any
potential meaning is speculative at best.

[186]

In my
view, the mere fact that WSs impression or feeling that the appellants
words were an admission of responsibility for Ms. Kogawas death is
insufficient to provide a meaningful context from which meaning can be drawn,
and, as will be addressed later, risks the jury engaging in forbidden reasoning
to conclude the appellants guilt.

[187]

In
Ferris
,
Justice Conrad noted that in confession cases, the person to whom the accused
speaks generally testifies as to the gist of the words spoken, notwithstanding
the fact that the evidence may not be fully recorded, or that it cannot be
repeated word for word. There is someone who can swear positively to the fact
that the essence of the accused's words were the admission:
Ferris
at para. 25.

[188]

In many of
the cases where the exclusion of evidence on
Ferris
grounds was
unsuccessfully sought, the witness having been a participant in the
conversation was a key factor in favour of admission.

[189]

In
Bennight
,

the accused allegedly had a conversation with
the jail supervisor after his arrest. The accused had asked the supervisor
about the victims condition and said that he had not intended to hurt them so
badly. On
voir dire
, the supervisor could not recall the exact words
used by the accused, testifying that it was something along the lines that he
had been fighting but didnt mean to beat them up that bad:
Bennight
at
paras. 2223. The defence sought to exclude the evidence on
Ferris
grounds,
arguing that the lack of context made the statements too vague to support more
than speculative meaning. On appeal, this Court upheld the trial judges
admission of the evidence, distinguishing the situation from that in
Ferris,
saying:

[92]      In the instant case, by
contrast, the witness could testify to both the gist of the statement and the
context in which it was made. The fact that Special Constable Cardinal-Mitchell
was unable to recall the exact words spoken does not in and of itself render
the statement inadmissible; the possibility of incompleteness was a matter of
weight for the jury

[190]

In
Mooring,
the accused and co-accused had arrived at the
witness house and asked him to store guns that had recently been used in the
commission of a murder. The witness had limited recall of the conversation and
was unsure of the exact wording used. On appeal, this Court rejected the
argument that the evidence should be excluded for lack of context, finding:

[25]      In my view, the evidence of Mr. MacDonald's
conversation with Mr. Mooring did not suffer from the lack of context
which was found to be fatal to the admissibility of the statement in
Ferris
.
Here,
the statements made by Mr. Mooring were made directly to Mr. MacDonald
within a short time of the robbery and killing of Mr. Kimberley. The
statements were made in the context of Mr. Mooring's request to store two
guns at Mr. MacDonald's residence. One of those guns was proven by other
evidence to have been that which was used to shoot Mr. Choquette.

[Emphasis added.]

[191]

In both
Bennight
and
Mooring
, the witness had been an active participant in the
conversationthey had not merely overheard a conversation fragment. Their
testifying as to the gist of the conversation was relevant because their
impression had been formed by hearing the entirety of the conversation in
context. Despite the lack of complete recollection in either case, the evidence
was properly left with the jury to assess, with the incompleteness going to
weight.

[192]

Unlike
Bennight,
however, the issue in this case is not one of completeness but one of
relevance. WS was not a party to the conversation. He had been, by his own
admission, trying not to eavesdrop on the conversation, and he could recall
only the smallest fragments of the conversationthe exact wording of which he
was not even able to recall. That he testified to the gist of the conversation
is, at best, speculative, as he had been unable to overhear the full conversation
in context, lacking the words being said on the other end of the phone.

[193]

The above
is not to imply that one-sided overheard conversations are presumptively
inadmissible. However, the inability to hear both sides of the conversation
increases the difficulty of ascribing meaning to any overheard utterances.

[194]

In
Alcantara
,

the court upheld as admissible overheard sentences despite the other half
of the conversation being indiscernible. In
Alcantara,
phone
conversations between the accused and various other people had been intercepted
by police. In one of these conversations, three complete sentences by the
accused had been recorded. However, immediately before and after were
unintelligible statements made by the person with whom the accused was speaking.
The accuseds sentences had been recorded in full, so there was no difficulty
in ascribing meaning to them, even if the other half of the conversation had
not been recorded. Further, the impugned statements were not the only
intercepted communications. Dozens of communications had been intercepted,
allowing a better understanding of what the overheard sentences intended to
communicate.

[195]

In
Yates
,
a sheriff had overheard part of a conversation between the accused and two
other prisoners in the back of the sheriffs van. The sheriff overheard and
recorded in his notebook within an hour after the statements were made several
comments by the accused, who sought to exclude them on
Ferris
grounds.
The court distinguished
Ferris
as having only contained a small snippet
of a statement, further noting that while the witness did not overhear the
entirety of the conversation, he actively paid attention to the conversation
once he determined [Mr. Yates] was talking about his crime:
Yates
at
para. 20.

[196]

I do not
think this is a case similar to
Yates
or
Alcantara
. In both
Yates
and
Alcantara
, full sentences were recorded, limiting, if not
obviating, the need for the witness to testify as to their gist. Meaning could
readily be drawn from them, and they did not suffer from the problems posed by
the fragments in
Ferris
and in this case.

[197]

My colleague relies on
Herntier
, where the
accused had told a witness before he was charged with
any offence that he had killed someone. The accused argued that the statement
had no, or little, probative value because it lacked context, in that the
witness could not provide either a date for the statement or an explanation of
the surrounding discussion to link the statement to the killing of the
deceased. The Manitoba Court of Appeal distinguished
Ferris
and the
Ontario
Court of Appeal decision in
Hunter
and
held the evidence was properly admitted because there was context that gave
meaning to the words. They reasoned:

[267]    In
the present case, there is context that gives meaning to the words. The words
"I killed someone" could constitute an admission. The context that
distinguishes this case from
Ferris
and
Hunter
is the phrase that immediately followed, that
"nobody would miss this person; scum, piece of shit person." This
addresses the issue of an innocent explanation for the words.

[198]

There is a
distinction between a third-party overhearing part of a conversation and the
incomplete recollections of a party to the conversation. If the witness was a
party to the conversation, their testimony as to the gist is equivalent to
their testifying as to what was saidalbeit in a less persuasive fashion than
if they had recalled the exact words spoken to them. But, crucially, they were
still the party to whom the accused was speaking. A third-party testifying as
to the gist of a conversation in which they only overheard one speaker is
engaged not in recollection but speculation. In this case, WS is necessarily
speculating as to what meaning I did it or I killed her had.

[199]

Unlike my
colleague, I am unable to substantially distinguish the present case from the
circumstances in
OReilly
. While I concede that the evidentiary
foundation in
OReilly
was less detailed than in the present case, the
key deficiencies present in
OReilly
are also present here. WS did not
hear the words spoken before or after the key fragment. He admitted that he did
not know the exact words used, and he testified that he was intentionally
trying not to hear what was being said.

[200]

I would
also refer to the Ontario Court of Appeal decision in
Hunter
. In
Hunter
,
the accused was convicted of using a firearm while committing an indictable
offence, aggravated assault, and possession of a prohibited weapon. On the day
of the appellants preliminary hearing, a bystander testified that he overheard
the appellant say to his lawyer, I had the gun, but I didnt point it. After
a
voir dire
, the trial judge admitted the evidence despite the words
before and after the overheard utterance not being before the court. He found
the jury could determine the meaning of the overheard words and that it was for
them to decide if the accused had made the statement and what value it should
be given.

[201]

The court noted that the facts before it closely paralleled those in
Ferris
.
They referenced Justice Conrads reasons and her conclusion that a properly
instructed jury could not determine from the fragmented utterance the meaning,
either of the whole thought or the overheard words themselves. Hence, the words
were not probative to a fact in issue and were therefore irrelevant and
inadmissible. The court, applying principles derived from
Ferris,
excluded the evidence. In that regard, they said:

[19]      In my view, Sopinka J.'s reasoning is anchored in
the important role that context can play in giving meaning to spoken words.
Where an overheard utterance is known to have a verbal context, but that
context is itself unknown, it may be impossible to know the meaning of the
overheard words or to otherwise conclude that those words represent a complete
thought regardless of context. Even if the overheard words can be said to have
any relevance, where their meaning is speculative and their probative value
therefore tenuous yet their prejudicial effect substantial, the overheard words
should be excluded.

[20]      When the principles derived from
Ferris
are
applied to this case, I think the evidence must be excluded as it was in
Ferris
.
The only possible relevance of the overheard utterance is if it could be found
to constitute an admission by the appellant that he had a gun. Here, as in
Ferris,
the trial judge found that the overheard utterance had a verbal context, which
is unknown and that it was part of a fuller statement. That statement may have
been a statement such as "I could say I had a gun, but I didn't point it,
but I won't because it is not true" or "What if the jury finds I had
a gun but I didn't point it  is that aggravated assault?" Neither would
constitute an admission. Indeed, given the reasoning of the trial judge, had
these possibilities been pointed out to him he might well have reached a
different conclusion.

[21]      In my view, without the
surrounding words, it would be impossible for a properly instructed jury to
conclude that the overheard utterance was an admission or perhaps even what it
meant. Clearly its meaning remains highly speculative. The trier of fact would
have to guess at the words that came before and after to fix on a meaning.
Since its meaning is highly speculative, its probative value is correspondingly
tenuous. However, the substantial prejudicial effect is obvious. This balance
clearly favours exclusion of the overheard utterance and, as in
Ferris
,
that should have been the result.

[202]

My
colleague suggests that this case is qualitatively different from
Ferris
because

in
Ferris
, the Crown did not adduce any informing context from
which the trier of fact could determine the meaning of the words, I killed
David. In her reasons, she indicates that in this case, there was far greater
context to inform the meaning of the utterances, identifying several items to
that effect.

[203]

The term
context must be used with care.
The New Oxford Dictionary of English
defines
context as the circumstances that form the setting for an event, statement, or
idea and also as the parts of something written or spoken that immediately
precede and follow a word or passage and clarify its meaning. I will refer to
the first definition as macro-context and the second as micro-context.

[204]

The items
referenced by my colleague are all part of the macro-context. They form the
setting for the appellants statement. An examination of the two judgments in
the Alberta Court of Appeal indicates that the macro-context in
Ferris
was
not dissimilar to the case at bar. Those circumstances include:

Staff Sergeant Schmidts job
     was to gather and corroborate the evidence.

Mr. Ferris and David
     Parker had, at some time before the killing, shared an apartment in a
     romantic relationship. At the time of the killing, they had separated, and
     Mr. Ferris had left the apartment and was living in a hotel room.

Mr. Ferris reported the
     death of Mr. Parker by telephone to the city police on the morning of
     October 22, 1989. When the police arrived at Mr. Parkers apartment,
     they found Mr. Ferris beside Mr. Parkers dead body. Mr. Ferris
     was spotted with the deceaseds blood. Mr. Parkers death had been
     caused by ten stab wounds. He had not been robbed. The suite had not been
     forcibly entered, but there was evidence of a violent struggle having
     taken place within it.

Upon his arrest, Mr. Ferris
     admitted having been in Mr. Parkers apartment the night of the
     murder.

Mr. Ferris was taken
     into custody. He was in an interview room when Sgt. Schmidt entered the
     room and advised him he would be charged with murder and advised him of
     his rights to silence and counsel.

Mr. Ferris asked to make
     a long-distance telephone call to his father. Mr. Schmidt placed the
     telephone call to Mr. Ferris father and, upon reaching the accuseds
     father, handed the phone to Mr. Ferris.

Mr. Schmidt walked away.
     He heard the accused say the words, Ive been arrested.

Sometime later in the
     conversation, Sgt. Schmidt heard Mr. Ferris say the words, I killed
     David.

Sgt. Schmidt did not hear the
     conversation before, after, or in-between the two overheard fragments.

[205]

What was
missing, however, in
Ferris
and in the case at bar, is any
micro-context. In neither case is it known what was said before or after the
overheard words. Absent such micro-context, it is not possible to determine the
meaning of the spoken words. As the Ontario Court of Appeal said in
Hunter,
without the surrounding words, it would be impossible for a properly
instructed jury to conclude that the overheard utterance was an admission:
Hunter
at para. 21.

[206]

I am of
the view that no properly instructed jury could conclude that the overheard
fragment was an admission. Accordingly, it is not relevant and should not have
been put before the jury. It was an error to admit the evidence.

[207]

Given this
conclusion I need not consider the appellants alternative submission that the
evidence should have been excluded on the basis that its prejudicial effect outweighed
its probative value.

DISPOSITION

[208]

In the
result, therefore, I would grant the appellant an extension to file his appeal
from conviction, allow the appeal, and order a new trial.

The
Honourable Mr. Justice Goepel

I AGREE:

The Honourable Madam Justice
Saunders