Background
On the night of July 28, 2020, Dylon Saddleback and a group of acquaintances gathered outside a trailer in central Alberta. Over the course of the evening, most of the group departed to attend a nearby birthday party, leaving Saddleback and Joshua Dennehy alone at the trailer. Shortly afterward, Dennehy was discovered dead, having been struck more than 45 times with a blunt instrument. Police found Saddleback standing near the trailer next to a blood-stained axe; when officers identified themselves, he fled and was later found hiding under his mother’s deck. Dennehy’s blood was on Saddleback’s shoes and clothing. He was charged with second degree murder.
At trial, a key contested issue was the precise timing of the group’s departure, because Saddleback argued that an unknown third party could have arrived and committed the murder after the group left. Group members gave inconsistent accounts of when they departed but agreed Dennehy was on his phone as they were leaving. It was uncontested that Dennehy spoke with his girlfriend, Delayna Bull, for 10–20 minutes in the 10:00–10:30 p.m. window. During cross-examination by defence counsel, Bull adopted her preliminary-inquiry testimony that Dennehy had told her on that call that “he was being ditched by those guys.” The Crown had earlier abandoned a voir dire application to admit Dennehy’s out-of-court statements through Bull.
The trial judge convicted Saddleback in brief oral reasons, expressly relying on Dennehy’s statement to Bull that “persons [were] leaving” to link the group’s departure to the 10:00 p.m. phone call — thereby establishing that Saddleback had the exclusive opportunity to commit the murder. The Alberta Court of Appeal (majority) quashed the conviction and ordered a new trial, holding that the trial judge had used the victim’s out-of-court statement for the truth of its contents — a prohibited hearsay purpose — without having properly admitted it. The Crown appealed to the Supreme Court of Canada.
The Court’s Holding
The Supreme Court of Canada dismissed the Crown’s appeal 8–1, with O’Bonsawin J. writing for the majority. The majority held that the trial judge’s reasons, read in light of the full trial record, unambiguously showed he used Dennehy’s out-of-court statement as hearsay — that is, to prove the truth of the assertion that the group was leaving at the moment of the call. The relevance of the statement to establish the timing of the group’s departure depended entirely on accepting that what Dennehy told Bull was true; if the statement were false, it would have had no bearing on who was present when. No voir dire was held and no hearsay exception was properly invoked, making the reliance on the statement an error of law.
The majority acknowledged that, in theory, the statement might have been usable for a non-hearsay purpose or might have been admissible through a hearsay exception, but held that the trial judge’s reasons gave no indication of either route. Those hypothetical bases could not be intelligibly reconstructed from the record, foreclosing meaningful appellate review. Applying settled principles from R. v. G.F., 2021 SCC 20, the majority emphasized that appellate intervention is warranted not merely where reasons are ambiguous, but where the ambiguity renders the trial judge’s path unintelligible — a threshold it found met here.
Because the Crown had never invoked the curative proviso under s. 686(1)(b)(iii) of the Criminal Code — neither at the Court of Appeal nor before the SCC — the Court held it could not apply the proviso of its own motion. The error of law was therefore presumed prejudicial, and a new trial was required. Côté J. dissented, concluding that the trial judge used the statement only to assess the reliability of the other witnesses’ accounts rather than to prove the truth of its contents, and that the conviction should be restored.
Key Takeaways
- An out-of-court statement is hearsay — and presumptively inadmissible — whenever its relevance to a contested issue at trial depends on accepting the truth of what was asserted; the label attached by the trial judge is irrelevant if the logical chain requires the statement to be true.
- Where a trial judge relies on an out-of-court statement that was never admitted through a voir dire or recognized exception, the conviction will be set aside unless the reasons reveal a coherent non-hearsay or exception-based rationale that can be reconstructed by an appellate court; mere ambiguity in brief reasons does not save the verdict.
- The curative proviso (s. 686(1)(b)(iii) Criminal Code) cannot be applied by an appellate court on its own motion — the Crown must affirmatively argue that no substantial wrong or miscarriage of justice occurred, or risk losing the benefit of the proviso entirely even where the evidence of guilt is strong.
- Trial judges conducting murder trials should address hearsay concerns explicitly in their reasons, particularly where a voir dire was commenced but abandoned, to ensure the appellate record is sufficient to permit review.
Why It Matters
This decision reaffirms that the hearsay rule turns on the purpose for which evidence is used, not the form in which it is tendered. Even in a case with compelling physical evidence — blood-stained clothing, a victim’s blood on the accused’s shoes, and a bloody axe at the scene — a conviction will not stand if a trial judge’s core factual finding rests on inadmissible hearsay and the reasons do not disclose a lawful analytical path. The ruling sends a clear message to trial courts: brief oral reasons in serious criminal matters carry real appellate risk when they do not articulate the evidentiary basis for pivotal findings.
The majority’s strict treatment of the curative proviso is equally significant for Crown practitioners. By declining to apply the proviso sua sponte — even where the Court of Appeal had itself flagged that the same result might have been reached on other evidence — the SCC reinforces that the Crown bears a strategic obligation to advance the proviso argument at every level or forfeit it. For defence counsel, the decision confirms that a well-timed concession during cross-examination (here, eliciting the “ditched” statement through the defence’s own questioning) does not insulate the resulting evidence from scrutiny if the trier of fact uses it impermissibly.