Law360 Canada (May 25, 2026, 11:02 AM EDT) --

John L. Hill

Can an out-of-court statement be used to convict a party of a crime, or must it be rejected as hearsay? That question was the focus of a Supreme Court of Canada decision released on May 22.

In R. v. Saddleback, 2026 SCC 18, the Supreme Court of Canada reviewed the conviction of Dylon Saddleback for the brutal killing of Joshua Dennehy outside a trailer in central Alberta in July 2020. The Crown’s case relied heavily on establishing that Saddleback had the exclusive opportunity to commit the murder after everyone else left for a nearby birthday party.

The evidence showed that Dennehy had been struck more than 45 times with a blunt instrument. Police arrived shortly after a neighbour discovered the body at around 10:44 p.m. They found Saddleback standing near the trailer and a vehicle. He fled when officers identified themselves and was later found hiding under his mother’s deck. Blood from Dennehy was found on his clothing and shoes, and an axe stained with the victim’s blood was recovered nearby.

At trial, the defence argued that someone else could have arrived after the group departed and committed the killing. A key issue, therefore, was the precise timing of when the others left Dennehy and Saddleback alone together. Witnesses gave inconsistent accounts but generally agreed that Dennehy was on his phone as the group departed.

Dennehy’s girlfriend, Delayna Bull, testified that she had spoken with him for 10 to 20 minutes sometime between 10 and 10:30 p.m. During the call, she heard shuffling, thudding and signs of a struggle before the line went dead. During cross-examination, she confirmed that Dennehy had said he was being “ditched by those guys,” meaning the others had left him behind at the trailer.

The trial judge relied heavily on that statement. He concluded that the group left while Dennehy was on the phone with Bull, leaving only Dennehy and Saddleback at the scene shortly before the fatal assault. Taken together with the blood evidence, the sounds heard over the phone and Saddleback’s flight from police, the judge found that there was no reasonable possibility that another person committed the murder and convicted him of second-degree murder.

The Alberta Court of Appeal majority overturned the conviction and ordered a new trial. The majority held that the trial judge improperly relied on Dennehy’s out-of-court statement that he was being “ditched” as evidence of its truth, even though it had not been properly admitted as hearsay. In the majority’s view, the statement was crucial to establishing the timing of the group’s departure and therefore to proving Saddleback’s exclusive opportunity to kill the victim.

The Supreme Court of Canada’s majority agreed with the Court of Appeal majority. The court emphasized the fundamental hearsay rule: out-of-court statements cannot be used to prove the truth of what they assert unless they fall within a recognized exception or satisfy the principled test of necessity and reliability. The court concluded that the trial judge’s reasoning clearly depended on accepting Dennehy’s statement that the others were leaving him as true. Without accepting that statement as true, it had no value in proving when the group departed.

The court’s majority rejected the Crown’s argument that the statement was merely circumstantial evidence corroborating other testimony. The court warned that allowing such use would create “an end-run-around the hearsay rule,” as parties could relabel hearsay as circumstantial evidence to avoid admissibility safeguards (R. v. Bridgman, 2017 ONCA 940). Because the trial judge relied on inadmissible hearsay to establish a critical part of the Crown’s timeline, the conviction could not stand, and a new trial was required.

The court further emphasized that its ruling did not mean Dennehy’s statement could never have been used at trial. The court acknowledged that the statement might potentially have been admissible through a recognized hearsay exception or for some legitimate non-hearsay purpose. It also recognized that the trial judge may still have reached the same factual conclusions from other evidence in the record.

However, the Crown chose not to argue any such alternative theory. Instead, it maintained throughout the appeal that the statement was not hearsay. The Supreme Court rejected that position and noted that the Crown never attempted to justify the statement’s admission under a recognized hearsay exception, nor did it explain any distinct lawful use for the evidence.

The court held that even if the trial judge had intended to rely on an exception to the hearsay rule, his reasoning would still have had to be discernible from the record. No such explanation appeared in the reasons for the trial. The court found that any hypothetical justification for admitting the statement was entirely unstated and impossible to reconstruct on appeal.

The Supreme Court also expressed concern about the brevity of the trial judge’s oral reasons. The entire explanation for convicting Saddleback of second-degree murder occupied slightly more than four transcript pages despite the complexity of the case, which involved forensic evidence, multiple expert witnesses and conflicting testimony from unreliable witnesses. While appellate courts assess reasons in context and do not require perfection, the court observed that reasons so brief in a murder prosecution raised concerns about transparency and about whether the public could be satisfied that justice had been properly administered.

Turning to the remedy, the Supreme Court reiterated that legal errors at trial are presumed to prejudice the accused unless the Crown can demonstrate otherwise through the curative proviso in the Criminal Code (R. v. Tayo Tompouba, 2024 SCC 16). That provision allows an appellate court to uphold a conviction despite legal error where no substantial wrong or miscarriage of justice occurred.

In this case, however, the Crown deliberately chose not to invoke the curative proviso either in the Alberta Court of Appeal or before the Supreme Court. The Crown never argued that the evidence against Saddleback was overwhelming enough to sustain the verdict despite the hearsay error. Because the proviso was not relied upon, the Supreme Court stated it could not apply the doctrine on its own initiative. The court emphasized that prosecutorial discretion on whether to invoke the proviso must be respected.

As a result, the Supreme Court dismissed the Crown’s appeal and allowed the Alberta Court of Appeal’s order for a new trial to stand.

In a concise and convincing dissenting opinion, Justice Suzanne Côté would have allowed the Crown’s appeal and restored Saddleback’s conviction for second-degree murder. She rejected the majority’s conclusion that the trial judge improperly relied on hearsay evidence.

Justice Côté emphasized that the disagreement within the court was not about the legal principles governing hearsay, but about how the trial judge actually applied them to Dennehy’s statement. In her view, the statement that Dennehy was being “ditched by those guys” was not used to prove its truth. Instead, the trial judge referred to it only to assess the reliability and consistency of the witnesses’ testimony regarding the timeline of events.

She stressed that appellate courts must presume trial judges know and correctly apply the law. Where reasons are capable of more than one interpretation, reviewing courts should prefer interpretations consistent with proper legal reasoning. Although she acknowledged the trial judge’s reasons contained some ambiguity, she concluded that, read in the full context of the trial record, the reasons did not reveal any impermissible hearsay use.

Justice Côté pointed to several aspects of the record showing the trial judge was fully aware of hearsay concerns. Earlier in the proceedings, the judge had participated in a voir dire regarding another out-of-court statement made by Dennehy, and the Crown ultimately abandoned its efforts to admit that evidence. According to Justice Côté, this demonstrated that the trial judge understood the hearsay rule and knew that statements about who was present at the trailer could not simply be admitted for their truth.

She also noted that during final submissions, neither Crown nor defence counsel relied on the “ditched” statement as substantive evidence establishing the timeline. Instead, the Crown relied on a broader “web” of witness testimony describing the group’s movements throughout the evening. Justice Côté concluded that the chronology of the murder was established through interconnected testimony rather than through any direct reliance on the hearsay statement itself.

In her interpretation of the trial reasons, the judge merely observed that Bull’s evidence was consistent with testimony from other witnesses who had seen Dennehy on the phone when they departed. That consistency supported the witnesses’ reliability, which had been a major issue at trial. She therefore viewed the statement as corroborating evidence rather than proof that the group was actually leaving at that precise moment.

Justice Côté also rejected Saddleback’s argument that the trial judge’s reasons were insufficient. While acknowledging the reasons were brief, she found they adequately explained why the conviction was entered and permitted meaningful appellate review. In her view, the central issue at trial, the identity of the killer, was relatively straightforward despite the volume of evidence.

She carefully reviewed the forensic evidence relating to bloodstains and blood spatter. Justice Côté emphasized that Saddleback’s clothing contained not only blood spatter but also transfer stains, indicating direct physical contact with the victim’s blood source. She found the trial judge was entitled to conclude that the absence of visible blood on exposed areas of Saddleback’s body did not create a reasonable doubt, particularly given expert evidence about how blood transfer and spatter function.

The dissent also highlighted the broader circumstantial case against Saddleback. Witnesses consistently testified that Dennehy and Saddleback were left alone together at the trailer shortly before the killing. Justice Côté stressed that the timeline made it highly implausible that another member of the group could have secretly returned to commit the murder. She agreed with the trial judge that theories involving a hidden third-party assailant “lacked common sense.”

Justice Côté further noted the powerful incriminating evidence against Saddleback: he was found alone at the scene, covered in the victim’s blood, and immediately fled when confronted by police. In her view, the totality of the evidence overwhelmingly supported the conviction beyond a reasonable doubt.

Finally, she rejected the claim that the trial judge materially misapprehended Bull’s testimony. Justice Côté concluded that Bull had effectively adopted her earlier preliminary inquiry testimony, confirming that Dennehy said he was being “ditched by those guys.” The trial judge was therefore entitled to treat that statement as part of her evidence at trial. Even if alternative interpretations of her testimony were possible, determining how much weight to give the evidence remained within the trial judge’s role as factfinder.

For those reasons, Justice Côté would have restored the conviction and dismissed all of Saddleback’s additional grounds of appeal.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). His most recent book, Acts of Darkness, (Durvile & UpRoute) has been shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book. Contact him at johnlornehill@hotmail.com.

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