Hearsay evidence can play a major role in criminal trials, especially where a case turns on statements made outside the courtroom. While some out-of-court statements may help explain context, timing, or a witness’s conduct, they become more legally complex when used to prove that what was said was true.
The Supreme Court of Canada recently considered this issue in R. v. Saddleback, a second-degree murder case involving a disputed phone call, brief trial reasons, and a conviction that was ultimately set aside.
Second-Degree Murder Case Arose From Brutal Bludgeoning
The case arose after a group gathered outside a trailer in central Alberta. During the evening, most of the group left to attend a nearby birthday party. The accused and the deceased were left at or near the trailer.
The deceased was later found dead, having been struck more than 45 times with a blunt object. When police arrived, they found the accused near the trailer and a nearby vehicle. The accused fled and was later arrested. Blood belonging to the deceased was found on the accused’s shoes and clothing, as well as on an axe located near where the accused had been standing.
The accused was charged with second-degree murder. At trial, one of the central issues was identity. The defence argued there was a reasonable possibility that someone else had arrived after the group left and killed the deceased. As a result, the timing of the group’s departure became important.
The Phone Call at the Centre of the Case
The deceased had been on the phone with his girlfriend during part of the relevant time period. It was uncontested that the call lasted between 10 and 20 minutes, sometime between 10:00 p.m. and 10:30 p.m.
Members of the group testified that the deceased was on the phone when they left for the party. The girlfriend also gave evidence about the call. During cross-examination, she was asked whether the deceased said he was being “ditched” by others. After being taken to her earlier testimony, she agreed that he had used that word and that, to her, it meant the others had left him.
The issue was not only whether those words had been spoken. The legal question was how the trial judge used that statement when deciding the case.
Trial Judge Rejected Possibility of Another Assailant
The trial judge convicted the accused of second-degree murder in brief oral reasons. In those reasons, the Court referred to the girlfriend’s evidence that the deceased had mentioned people leaving during the call.
The trial judge found that this evidence was consistent with testimony from others that they left while the deceased was on a cell phone. The trial judge then concluded that only the deceased and the accused remained at the scene during the relevant time period.
That finding was significant because it supported the conclusion that no one else had a realistic opportunity to commit the killing. The trial judge rejected the possibility of another assailant and found the accused guilty.
The Court of Appeal Orders a New Trial Due to the Use of Hearsay
The accused appealed his conviction. A majority of the Court of Appeal concluded that the trial judge had used the deceased’s out-of-court statement for the truth of its contents.
In other words, the trial judge relied on the statement that people were leaving to prove that people were, in fact, leaving at that time. The Court of Appeal found that this was hearsay. Since the statement had not been properly admitted for that purpose, the conviction was quashed, and a new trial was ordered.
A dissenting judge at the Court of Appeal would have upheld the conviction. In that view, the trial judge used the statement only as part of a broader reliability assessment, not to prove the truth of what the deceased had said.
The Crown appealed to the Supreme Court of Canada.
What Is Hearsay?
The Supreme Court reviewed the basic principles of hearsay. Hearsay is an out-of-court statement offered to prove the truth of its contents. The concern is that the person who made the statement is not in court to be cross-examined about perception, memory, sincerity, or accuracy.
Hearsay is generally inadmissible unless an exception applies. Some exceptions are established at common law. Others may arise under the principled exception, which requires necessity and threshold reliability.
Where a party seeks to rely on hearsay for the truth of its contents, admissibility is often determined through a voir dire. That process allows the Court to decide whether the evidence can be admitted and, if so, for what purpose.
In this case, no voir dire was conducted, and the statement was admitted for the truth of its contents. The issue was whether the trial judge had relied on it for an impermissible purpose.
Supreme Court Found Deceased’s Out-of-Court Hearsay Statements Improperly Used as Evidence
The Supreme Court dismissed the Crown’s appeal. The majority concluded that the trial judge used the deceased’s out-of-court statement as hearsay. The Court found that the statement was relevant to the trial judge’s reasoning only if it was accepted as true. The statement that the deceased was being “ditched” helped establish that the group left during the phone call with the girlfriend. That timing then supported the finding that the accused and the deceased were alone shortly before the killing.
The majority rejected the Crown’s argument that the statement was used only as circumstantial evidence or for corroboration. Even if framed as circumstantial evidence, the statement’s value still depended on the truth of what was said. If the deceased said people were leaving when they were not actually leaving, the statement would not assist in proving the timing of the group’s departure.
The Court also found that the trial judge’s reasons did not identify a valid non-hearsay use of the statement. Nor did the reasons explain any hearsay exception that would justify relying on the statement for the truth of its contents.
Trial Judge Erred by Using Hearsay Statement to Prove Timing of Murder; Concerns of Short Trial Reasons
The Supreme Court emphasized that trial reasons must be read functionally and contextually. Appellate courts should not intervene simply because reasons are brief or open to more than one interpretation. Trial judges are presumed to know and apply the law.
However, the majority found that the trial judge’s reasoning showed a legal error. The statement was used to prove timing, and timing was central to rejecting the defence theory that another person could have committed the killing.
The majority also noted that the trial reasons were very brief for a murder case involving forensic evidence, inconsistent witness testimony, and disputed timing. While short reasons are not automatically insufficient, the reasons did not allow an appellate court to reconstruct a legally permissible basis for the use of the out-of-court statement.
The Curative Proviso Was Not Applied
The Supreme Court also addressed the curative proviso. Under the Criminal Code, some legal errors may not require a new trial if the Crown can show that no substantial wrong or miscarriage of justice occurred.
However, the Crown did not rely on the curative proviso in this case. The Supreme Court confirmed that it could not apply the proviso on its own motion. Since the Crown had not argued that the error caused no substantial wrong or miscarriage of justice, the Court could not use the proviso to uphold the conviction. As a result, the new trial order remained in place.
Hearsay and Trial Fairness
Hearsay rules are not merely technical. They are connected to the accused’s right to a fair trial. Cross-examination is a central tool for testing evidence in criminal proceedings. When a statement is made outside court, the defence may not be able to challenge the declarant’s perception, reliability, motive, or memory in the ordinary way.
That does not mean all out-of-court statements are excluded. It means courts must carefully assess when and how they can be used. If the Crown seeks to rely on hearsay for the truth of its contents, the proper admissibility framework must be followed.
For the defence, the case shows the importance of identifying how contested statements are being used. The same words may appear harmless when framed as background, but become legally significant if they are used to prove a fact necessary for conviction.
Barrison & Manitius: Leading Criminal Defence Lawyers in Oshawa and Durham Region
Hearsay evidence can significantly affect the outcome of a criminal trial, particularly where the case turns on witness reliability, timing, identity, or statements made outside court. The innovative criminal defence lawyers of Barrison & Manitius assist accused persons with charges involving disputed statements, evidentiary objections, Charter issues, trial strategy, and criminal appeals.
If you are facing criminal charges in Oshawa, Durham Region or the surrounding areas, contact us online or call 905-404-1947. We represent clients in a full range of charges, including drug offences, assault, theft, weapons charges, and murder and manslaughter.