EVIDENCE - Admissibility - Prejudicial evidence - Relevancy

Appeal by the accused from conviction for second degree murder. The victim’s body was found in a suitcase about two weeks after her disappearance. A pathologist was not able to determine the cause of death. The appellant’s brother told police the appellant talked to him about the deceased. The appellant dated her a few times. The appellant told his brother the whereabouts of her body. The appellant also told his brother he wanted to kill himself. The appellant did not tell his brother that he killed the deceased or otherwise caused her death. After the failed suicide attempt, the appellant called his wife in Japan. On the voir dire, the brother testified that he could only recall two specific fragments of the telephone conversation that he heard the appellant ask whether his wife heard the news of the missing Japanese woman and that he heard the appellant say, “I did it” and “I killed her.” The brother testified that he could not remember the exact words used or any part of the conversation other than the two fragments. The appellant’s wife did not testify. At trial, the brother confirmed he did not know the exact words used, but his feeling was that the appellant was admitting responsibility for the deceased’s death. At trial, the appellant admitted to placing her body in the suitcase. The appellant did not testify. The appellant argued the trial judge erred in admitting parts of the phone conversation, erred in her instructions to the jury by not including direction on the concurrence principle, and mishandled and incorrectly answered a question posed by the jury.

HELD: Appeal allowed. New trial ordered. This case did not require an instruction on the concurrence principle. The judge correctly answered the jury’s question on the definition of bodily harm as applicable to the offences of murder and manslaughter. The judge erred, however, in admitting the parts of the telephone conversation overheard by the brother. The uttered words were not capable of being an admission of responsibility for the deceased’s death and were therefore not relevant and inadmissible. The words “I did it” and “I killed her” carried vastly different ranges of meaning and were qualitatively different. There was no way the jury could determine whether the appellant said “I did it” or “I killed her” because the witness who testified was unable to recollect what was said. There was nothing that would allow the jury to determine the meaning of the utterances in a way that was not dangerously speculative. The mere fact that the brother’s impression or feeling that the appellant’s words were an admission of responsibility for the deceased’ death was insufficient to provide a meaningful context from which meaning could be drawn and risked the jury engaging in forbidden reasoning to conclude the appellant’s guilt.

R. v. Schneider, [2021] B.C.J. No. 151, British Columbia Court of Appeal, M.E. Saunders, R. Goepel and J. DeWitt-Van Oosten JJ.A., February 2, 2021. Digest No. TLD-March292021002