Criminal Law: Hearsay
R. v. Saddleback, 2024 ABCA 352, 2026 SCC 18 (41567)
“The accused and others had gathered outside a trailer to socialize. At some point, most of the group left to attend a nearby birthday party, leaving the accused and the victim alone at the trailer. The victim was later discovered dead, having been struck more than 45 times with a blunt instrument. When police arrived, they found the accused standing between the trailer and a nearby vehicle. The accused fled but was later apprehended. The victim’s blood was found on the accused’s shoes and clothing, as well as on an axe located where he had been standing. The accused was charged with second degree murder.
At trial, members of the group testified that, as they were leaving for the birthday party, the victim was on the phone and the accused was in the trailer. It was uncontested that the victim was on the phone with his girlfriend for 10 to 20 minutes in the window of 10:00 to 10:30 p.m. The Crown asked the girlfriend whom the victim had said he was with during the call, which triggered an objection and a voir dire concerning the admissibility of that evidence; however, the Crown abandoned its application to have this evidence admitted. Later in the trial, defence counsel asked the girlfriend, on cross‑examination, whether the victim had told her “he was being ditched by those guys” during this phone call. She eventually agreed. The trial judge convicted the accused of second degree murder in brief oral reasons that referenced the victim’s out-of-court statement about being “ditched”. The accused appealed his conviction. A majority of the Court of Appeal allowed the appeal, quashed the conviction and ordered a new trial, on the basis that the trial judge erred in relying on the victim’s out-of-court statement for an impermissible hearsay purpose.”
The SCC (8:1) dismissed the appeal.
Justice O’Bonsawin wrote as follows (at paras. 1-4, 40-42):
“This appeal requires the Court to apply the well-established principles regarding hearsay evidence and the sufficiency of reasons to the specific facts of this case.
In brief oral reasons, the trial judge convicted the respondent, Dylon Saddleback, of the second degree murder of Joshua Dennehy. In support of his conclusion that the two men were left alone at the crime scene shortly before the murder, the trial judge referenced an out-of-court statement made by the deceased during a phone call with a witness. A majority of the Court of Appeal of Alberta concluded that the trial judge erred in relying on the statement for an impermissible hearsay purpose and, on this basis, quashed the conviction and ordered a new trial.
The Crown submits that the majority erred in concluding that the trial judge made an impermissible use of hearsay evidence. It argues that the trial judge’s conclusion drawn from the out-of-court statement does not rest on accepting the truth of the statement’s contents, but rather on common sense inferences about human behaviour and the circumstances in which the statement was made. Mr. Saddleback disagrees. He contends that the majority was right that the trial judge erred in his use of the hearsay evidence and that, in any case, a new trial is required because the trial judge misapprehended the evidence and because the reasons are insufficient.
For the reasons that follow, I would dismiss the appeal. Based on a plain reading of the trial reasons, the trial judge used the out-of-court statement as hearsay, that is, to make proof of the truth of its contents. Even if it were true that the out-of-court statement could have been relied on for a purpose other than establishing the truth of its contents or could have been admissible to prove the truth of its contents under a hearsay exception, the trial judge’s reasons, read in light of the trial record as a whole, are insufficient to allow an appellate court to infer or reconstruct an analysis supporting either basis. It should be noted that the Crown does not rely on the curative proviso. In the circumstances, a new trial is required.
…
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. 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. These hypothetical paths of reasoning are completely unstated and cannot be intelligibly reconstructed from the record. Appellate review on the issues raised by these paths would not be possible and the Crown’s reliance on G.F. is accordingly misplaced.
In short, even if the trial judge had used the statement in a legally permissible way, his reasons do not explain what that hearsay exception or non-hearsay use was and why it was justified, and the answers to these questions are not clear in the record. This problem would be particularly serious because, as I have explained, reliance on the statement went to timing, which was central to the trial judge’s reasons for finding Mr. Saddleback was the one who killed Mr. Dennehy. I note parenthetically that the entirety of the oral reasons for finding Mr. Saddleback guilty of second degree murder fit on just over four transcribed pages of the record. The sufficiency of reasons must always be assessed functionally and contextually (see G.F., at para. 69). However, reasons this short in a murder case involving multiple forensic experts, and inconsistent witness testimony found not to be generally reliable on points of detail, are difficult to square with the goals of ensuring transparency in the adjudicative process and of satisfying observers that justice has been done (see para. 68).”