R. v. Hunter, 2001 CanLII 5637 (ON CA)
[14] The appellant's first ground of appeal is that the trial judge erred in admitting the evidence of the appellant's utterance overheard by Mr. DiCecco. Relying on R. v. Ferris, 1994 CanLII 31 (SCC), [1994] 3 S.C.R. 756, 34 C.R. (4th) 26, affirming 1994 ABCA 20 (CanLII), (1993), 27 C.R. (4th) 141 (Alta. C.A.), the appellant argued that the utterance cannot meet the threshold of relevance required for admissibility because its meaning cannot be determined without its context or alternatively its meaning is so speculative that it ought to have been excluded because its prejudicial effect outweighed its tenuous probative value. I agree.
[16] Conrad J.A., writing for the majority in the Alberta Court of Appeal, turned first to whether, in the circumstances, it was possible to ascertain the meaning of these words so that they could be said to meet the relevance requirement for admissibility. She pointed out that the only possible relevance of these words was if they could be found to constitute an admission by the accused that he killed David. However, the Crown had no evidence of the words preceding or following the overheard phrases and Conrad J.A. cited examples of possible surrounding words that would make the full statement innocuous rather than an admission of guilt and hence not probative of any fact in issue. Given that there was a verbal context for the overheard phrases but no evidence of what that context was, Conrad J.A. found that a properly instructed jury could not determine from the fragmented utterance which was overheard the meaning either of the whole thought or of the overheard words themselves. Hence she concluded that t hese words could not be said to be probative of a fact in issue and were therefore irrelevant and inadmissible.
[17] Conrad J.A. went on to find that since the utterance "I killed David" had no probative value (given that the court did not know the words surrounding it) and since the utterance was extremely prejudicial its exclusion must be favoured. On this basis as well she found that the overheard words should not have been admitted.
[18] The Supreme Court of Canada dismissed the appeal from this judgment. The reasons of the court by Sopinka J. are as follows:
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. [reported at 1994 ABCA 20 (CanLII), (1994), 27 C.R. (4th) 141 (Alta. C.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.
The appeal is therefore dismissed.
[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.
[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.
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