Summaries Sunday: Supreme Advocacy

One Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, to which you may subscribe. It’s a summary of all Appeals, Oral Judgments and Leaves to Appeal granted from Aug. 18 – Oct. 12, 2022 inclusive.


Criminal Law: Hearsay
R. v. Schneider, 2021 BCCA 41, 2022 SCC 34 (39559)

Three questions: whether what the witness overheard had meaning, such that it was relevant to an issue at trial; whether what the witness overheard was admissible under an exception to the general exclusionary rule against hearsay; third, whether the trial judge appropriately refused to exclude the evidence on the basis that the probative value outweighed the prejudicial effect. Each question is answered in the affirmative. What the witness overheard the accused say on the phone was capable of non-speculative meaning such that it was relevant; it was admissible under the “party admission” exception to hearsay; and there is no basis to disturb the trial judge’s decision to admit the evidence. Party admissions, like other evidence, are not rendered inadmissible because the witness is equivocal in their testimony. Witnesses often have imperfect recollection and express uncertainty in their testimony. To the extent that these are matters related to admissibility (rather than the weight that the trier of fact gives to the evidence), they are properly to be considered by the trial judge when balancing probative value against prejudicial effect. Thus, the fact that a witness cannot recall the exact words used does not mean that such evidence has no relevance. Of course, parties are not permitted to “bootstrap” their argument on the admissibility of a party admission to any and all evidence. The party seeking to admit the proposed evidence should limit their submissions to the evidentiary context that is relevant to determining the meaning of the statement at issue. In a criminal case, the Crown may not argue that any evidence pointing towards the accused’s guilt provides relevant context. The focus should remain on whether the jury can give meaning to the witness’s testimony in a manner that is non-speculative, not the overall strength of the Crown’s case. Judges determine relevance by asking whether, in light of all the other evidence, the at-issue evidence logically tends to make a fact in issue more or less likely. A trial judge’s determination that evidence is hearsay but falls within an exception from the general exclusionary rule is a question of law, reviewable on a standard of correctness. Judges must determine whether they should exercise their discretion to exclude evidence by balancing probative value against prejudicial effect; and Judges sitting with juries should consider the extent to which any prejudicial effect can be attenuated by appropriate instructions to the jury as to the use to which the evidence can properly be put. In addition, evidence can be excluded where there was a significant unfairness associated with obtaining it, such that it would render the accused’s trial unfair.

Leaves to Appeal Granted

Criminal Law: Child Luring; Mandatory Minimums
R. v. H.V., 2022 QCCA 16 (40093)

There is a publication ban in this case, in the context of child luring sentencing.

Labour Law: Freedom of Association
Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, et al., 2022 QCCA 180 (40123)

Freedom of association re casino managers.

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