The court said the trial ruling did not explain if there was an exceptional reason to rely on hearsay
An Alberta trial judge improperly relied on hearsay evidence to convict a man of second-degree murder, the Supreme Court of Canada ruled in an 8-1 decision on Friday, ordering a new trial.
While courts can rely on out-of-court statements in limited scenarios, the high court majority said the trial judge’s ruling did not include enough material for an appellate court to conclude that such a scenario was at play when he supported his findings with a phone call between the victim and his girlfriend.
The girlfriend alleged that during the call, the victim had informed her he was alone with the accused. The victim was discovered dead shortly after.
Justice Michelle O’Bonsawin wrote the opinion for the majority. Justice Suzanne Côté dissented.
The case dates to July 2020, when a group of friends were socializing outside a trailer. Most of the group left to attend a birthday party in the evening, leaving the accused, Dylon Saddleback, and the victim, Joshua Dennehy, behind.
A man returning home to a nearby trailer that night found Dennehy lying dead on the ground, having been struck more than 45 times by a blunt instrument. When the police arrived, they found Saddleback standing between the trailer and a parked car. He fled when the police identified themselves and hid at his mother’s house.
Dennehy’s blood was found on Saddleback’s shoes and clothing, as well as on an axe that was found in the spot Saddleback had been standing when police arrived on the scene. Saddleback was arrested and charged with second-degree murder.
At trial, members of the group who had left the trailer for the birthday party testified that Dennehy had been on the phone when they left, while Saddleback had been in the trailer. They agreed Dennehy had been on the phone with his girlfriend.
During cross-examination by Saddleback’s counsel, the girlfriend agreed that Dennehy had suggested the group had “ditched” him, implying that he was alone with Saddleback. In brief reasons delivered orally, the trial judge convicted Saddleback of second-degree murder. He found that Dennehy had died shortly after the group left the trailer, and relied on his girlfriend’s account of their phone call to conclude that Saddleback was the only other person present during the brief window between the group leaving and Dennehy’s death.
The Alberta Court of Appeal overturned the conviction and ordered a new trial. According to the appellate court, the trial judge’s reliance on the phone call constituted an impermissible use of hearsay evidence.
The Crown appealed. However, the SCC dismissed the appeal.
Hearsay is any statement made outside of court that is used to prove the truth of a claim. Writing for the majority, O’Bonsawin said hearsay evidence is generally inadmissible as evidence because it can be difficult to test the truthfulness of a statement if the person who made it cannot be tested in court.
However, there are exceptions to this rule. Parties looking to rely on out-of-court statements in their arguments can try to have them admitted under a common law categorical exception or a “principled exception.” Under the latter exception, O’Bonsawin said, “hearsay evidence can only be admitted when the party tendering that evidence demonstrates on a balance of probabilities that it is necessary and sufficiently reliable.
“A voir dire on the admissibility of the hearsay evidence is normally held for this purpose,” the justice added.
O’Bonsawin noted that in R. v. Saddleback, a voir dire was never conducted to determine the admissibility of the phone call between Dennehy and his girlfriend. Thus, the question before the court is whether the trial judge could rely on the call as evidence, given that it was never properly admitted.
The majority concluded that the answer to that question was no.
“I have concluded that the trial judge’s reasons indicate unambiguously that he relied on the out-of-court statement to establish the truth of its contents. The Crown advances no theory on which the hearsay use could be justified,” O’Bonsawin wrote. “But even assuming, in the alternative, that the trial judge relied on the statement because he felt it was admissible based on a hearsay exception or because he found the statement had an idiosyncratic or novel non-hearsay use, the chain of reasoning supporting that reliance would still have had to have been perceptible, reading his reasons in context.
“This is not the case here,” the justice said. “These hypothetical paths of reasoning are completely unstated and cannot be intelligibly reconstructed from the record.”
Because the Crown did not rely on the curative proviso, which prosecutors can invoke to uphold a trial decision even if that decision contains a legal error, the high court said it must order a new trial.
In her dissent, Côté said she would have allowed the Crown’s appeal.
The justice found that the trial judge had used Dennehy’s out-of-court statement in his phone call in a permissible way, and that his comments about Dennehy’s girlfriend’s testimony and Dennehy’s statement “should not be interpreted as an impermissible reliance on the statement for a hearsay purpose.”
Heather Jenkins, a spokesperson for the Attorney General of Alberta, said the government is reviewing the decision and cannot comment further.
Counsel for Saddleback did not immediately respond to a request for comment.
