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| John L. Hill |
Forced off their bikes, Pruden swung a gardening tool in self-defence. One of the assailants, later identified as K.R., had a knife and stabbed Pruden multiple times — in the head, shoulder, heart and thigh. Pruden’s daughter fled to get help, and the attackers scattered when a passing car approached. Pruden died shortly after being taken to the hospital.
Two days later, a 14-year-old student named E.T. came forward with information. In a video-recorded statement, E.T. identified 15-year-old K.R. as the stabber and provided details about the attack and the weapon. E.T. claimed that Pruden’s defensive swings injured K.R. before he retaliated with the knife. Based on this information, police searched K.R.’s home and found shoes with the victim’s blood on them. DNA evidence from the scene also matched K.R.
On June 1, 2022, K.R. was arrested and observed to have multiple wounds on his hands and arms. He was charged with second-degree murder under s. 235(1) of the Criminal Code.
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A voir dire under s. 715.1 of the Criminal Code was conducted to determine whether E.T.’s video statement could be admitted as evidence. In court, E.T. appeared visibly hesitant and was largely non-verbal. Although he confirmed his age and recognized his aunt (Ms. B.) in a video still, he did not provide verbal responses to most of Crown counsel’s questions. Instead, he either nodded or shook his head, remaining mostly silent.
The main issue at the voir dire was whether E.T.’s videotaped police statement could be admitted for its truth under the principled exception to the hearsay rule. The trial judge applied the legal framework outlined in R v. Bradshaw, 2017 SCC 35 and R. v. Johnson, 2018 SKCA 28, which requires that such statements be necessary and sufficiently reliable to overcome the inherent risks of hearsay. Reliability can be demonstrated either procedurally, substantively, or through a combination of both.
The trial judge determined that, overall, the statement was not inherently reliable and acknowledged the risks associated with accomplice testimony, such as potential motives to deflect blame. Since only one form of reliability is necessary for admissibility, and procedural reliability was proven, the judge concluded that the Crown had satisfied its burden.
Despite inconsistencies in E.T.’s evidence, the judge accepted the corroborated parts of E.T.’s statement, particularly the identification of K.R. as the person who stabbed Pruden multiple times, including in the head and chest. K.R. was convicted of second-degree murder.
K.R. appealed his conviction to the Saskatchewan Court of Appeal. The court delivered its decision to quash the conviction and order a new trial (R. v. K.E.R., 2025 SKCA 68). The appeal court found legal error in substituting the videotaped statement given to police as adequate cross-examination of E.T.
Supreme Court precedent (for example, R. v. Khelawon, 2006 SCC 57, R. v. Bradshaw, 2017 SCC 35 and R. v. Charles, 2024 SCC 29) generally stops short of stating that cross-examination is always necessary. However, it clarifies that additional measures are required to maintain procedural reliability when cross-examination is not possible.
Courts have consistently required more than just a videotaped police interview to establish procedural reliability. Adequate alternatives to cross-examination must be available to admit hearsay under the principled exception — and those alternatives must effectively test the truth and accuracy of the statement.
Even when the appeal court signalled its intention to find that the trial judge had erred, the parties could not agree on what would constitute an acceptable outcome. The Crown argued that a new trial is appropriate because another judge could still admit E.T.’s statement under a different legal basis, relying on the existing record (citing R. v. Kwon, 2024 SKCA 50). K.R. argued for an acquittal because, in his view, no legally admissible evidence remains upon which a reasonable conviction could be based (citing R. v. Keepness, 2007 SKCA 42, R. v. MacNeil, 2009 NSCA 46 and R. v. Pelletier, 2024 SKCA 12).
Appellate courts often order new trials when hearsay rulings are in error, without commenting on the possible re-admissibility of evidence, to avoid influencing future proceedings (for example, Bradshaw, Charles, Johnson and R. v. Lako, 2025 ONCA 284). Since no final determination had been made on alternative bases for admitting the statement, speculation is inappropriate, and an acquittal is not justified.
The conviction was overturned, and a new trial was scheduled under s. 686(2)(b) of the Criminal Code. K.R. was to remain in custody until appearing before the Provincial Court.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books) was released July 1. Hill 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). Contact him at johnlornehill@hotmail.com.
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