Her Majesty the Queen - v. -, 2021 SKPC 11

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 11 Date: January 29, 2021 Informations: 991131940, 991109303 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - David Kearsey Appearing: Adam Breker For the Crown Louis Mercier For the Accused DECISION ON ADMISSIBILITY OF HEARSAY EVIDENCE M.

HINDS, J INTRODUCTION [ 1 ] The accused, David Kearsey, faces seven charges set out in Information 991131940 and an additional four charges set out in Information 991109303 in relation to a home invasion of a dwelling house and armed robbery at 867 Princess Street, Regina which occurred on or about October 24, 2019. The Crown presented its case to the Court on November 16 and December 22, 2020. [ 2 ] Lisa Deroche, Kyle Tanner, Alyssa Tanner and Jason Spiers were living at 867 Princess Street on the evening of October 23 and

the early morning hours of October 24, 2019. There were two bedrooms on the main floor and one bedroom in the basement. Lisa Deroche had a bedroom on the main floor of the home which it appears she shared with Jason Spiers. Her daughter Alyssa Tanner was in her basement bedroom which is directly below Lisa Deroche’s bedroom. Kyle Tanner was also living on the main floor of the house in a second bedroom. [ 3 ] Alyssa Tanner placed a call to 911 at 2:47 a.m. shortly after a home invasion and robbery began at 867 Princess Street.

Alyssa Tanner, Lisa Deroche and Jason Spiers each spoke to the 911 operator over the course of 13 minutes and 56 seconds. Alyssa remained on the 911 call for 8 minutes and 41 seconds. During most of Alyssa Tanner’s time speaking to the 911 operator she was hiding in her bedroom closet. After the home invaders left the residence and the police arrived Alyssa Tanner went upstairs. Alyssa initially passed her cell phone to her mother, Lisa Deroche, who spoke to the 911 operator for 35 seconds from 8:42 to 10:17.

The cell phone was then passed to Jason Spiers who spoke with the 911 operator for 2 minutes and 38 seconds from 10:18 to 13:56. [ 4 ] Cpl. Anita Robinson of the Regina Police Service arrived at 867 Princess Street around 2:57 a.m. She went into the residence with Sgt. McFetridge to make sure no suspects were inside. When Cpl. Robinson entered the house she saw Kyle Tanner sitting on a couch, Lisa Deroche was situated in a bedroom just off the kitchen and Jason Spiers pacing in the kitchen talking on a cell phone.

She observed that Jason Spiers was bleeding from cuts to his head and a small cut to one of his fingers. Cpl. Robinson asked Jason Spiers to hang up the cell phone, which he did. Based on the evidence before me I find that Jason Spiers had been talking to the 911 operator when Cpl. Robinson asked him to hang up the cell phone. [ 5 ] Cpl. Robinson got Jason Spiers to sit down on a chair in the kitchen. Cpl. Robinson called emergency medical services and spoke to Jason Spier. [ 6 ] Two voir dires were conducted with respect to the admissibility of statements made by Jason Spiers on October 24, 2019.

Counsel agreed that Jason Spiers was deceased at the time of trial and therefor could not testify. The Crown seeks to have two statements made by Jason Spiers on October 24, 2019 admitted into evidence in the trial proper. These statements were: 1. An audio recorded conversation between Jason Spier’s and the 911 operator lasting 2 minutes and 38 seconds is set out in Exhibit P-4 (Appendix A).

Certain portions of that conversation are as follows: 911 I need to know descriptions tho, that doesn’t help me sir Spiers Kay, well I dunno what they looked like, they were wearing fucken masks and had shotguns and knives . . . 911 Were there more than one guy? Spiers Yeah there was two or three of them . . . 911 Ok. So there was three guys and they have one of them in the back, is that what you’re saying? Spiers Pardon me? 911 the male in the back and there was two others? Spiers Ahhh, I think so. There was definitely two maybe three 911 Ok. You’re not sure if there was two or three?

Spiers No, there was two maybe three 911 K . . . Spiers they got two 911 they got two? Spiers They got two guys in custody now

911 Ok. Do you think there is a third one or do you think that . . Spiers I don’t know for sure if there is a third one, there could have been 911 Ok. Spiers um I think two, I think there was only two 911 Lisa said three suspects, I just want to make sure . . if one is still out there Spiers We don’t know for sure. We know there was two. 911 Ok, you know for sure two but Lisa thinks maybe three Spiers *talking to Lisa – I dunno Lisa, I think there only might have been two 911 Ok, and do you know them? Spiers No I don’t know them . Do you think that we would know people like this? 911 Ok.

What did they take from you guys? Spiers Money. They just robbed us for money. 911 Ok. And did they steal jewelry? Spiers Well they stole jewelry, they stole money 911 How much money do you know? Spiers They thought we had a bunch of drugs or some fucken thingand we don’t have no dope here 911 They were looking for drugs? Spiers I guess so. Like we don’t have no fucken drugs, they got the wrong house [emphasis added] 2. Cpl. Robinson testified that that Jason Spiers told her “Some suspects had broken in and they had masks on.

They had broken into his bedroom and they hit him on the head right away with the butt of the gun and they were asking for jewelry and money. They took his ring and about $200.00 in $20.00 dollar bills.” [ 7 ] Jason Spiers statements during the 911 audio recording and to Cpl. Robinson are plainly hearsay statements and were therefore presumptively inadmissible: R v Khelawon , 2006 SCC 57 at para 3 [2006] 2 SCR 787 [ Khelawon ] .

The Crown takes the position that the two statements made by Jason Spiers should be admitted into evidence as res gestae or the spontaneous utterance exception against the admission of hearsay evidence or alternatively pursuant to the principled exception to hearsay.

The defence opposes the admission of these two statements. [ 8 ] I have found that the audio recorded statements made by Jason Spiers to the 911 operator in the early hours of October 24, 2019 should be admitted into evidence under both res gestae or spontaneous utterance exception to the admission of hearsay evidence as well as the principled exception to the rule against hearsay evidence. THE LAW OF HEARSAY AND THE RES GESTAE EXCEPTION [ 9 ] In R v S.A.B. , 2018 SKQB 204 at paras 21-23 [ S.A.B. ], Justice MacMillan-Brown provided the following

summary of the law on hearsay: [21] A traditional articulation of the hearsay rule can be found in David Watt, Watt’s Manual of Criminal Evidence , 2017 (Toronto: Thomson Reuters, 2017) [ Watt on Evidence ] at 364: Evidence of a statement made to a recipient by a declarant , who is not a witness in the proceedings, may or may not be hearsay. It is hearsay and presumptively inadmissible, when the purpose of the evidence is to establish the truth of the contents of the statement . It is not hearsay, hence not admissible under the rule, where the purpose of the evidence is not to establish the truth of the contents of the

statement, rather, only to prove that the statement was made. Hearsay also includes an out-of-court statement made by a witness whotestifies in court, if the statement is offered to prove the truth of its contents. [22] Thus, distilled down to its simplest definition, hearsay evidence is evidence of an out-of-court statement that is tendered for thetruth of its contents. [23] Courts have long recognized the dangers of relying upon hearsay evidence as opposed to real evidence and viva voce testimonyof witnesses.

In R v Khelawon, 2006 SCC 57 at para 2, [2006] 2 SCR 787 [Khelawon], for example, the Supreme Courtdescribed the central rationale for excluding hearsay evidence as follows: 2 ... While no single rationale underlies its historical development, the central reason for the presumptive exclusion of hearsaystatements is the general inability to test their reliability. Without the maker of the statement in court, it may be impossible to inquire intothat person's perception, memory, narration or sincerity. The statement itself may not be accurately recorded.

Mistakes, exaggerations ordeliberate falsehoods may go undetected and lead to unjust verdicts. Hence, the rule against hearsay is intended to enhance the accuracyof the court’s findings of fact, not impede its truth-seeking function. … [10] As noted by Justice MacMillan-Brown at paragraphs 24-25 of S.A.B., the Supreme Court of Canada in Khelawon acknowledged that a number of exceptions to the rule against hearsay evidence exist.

One such exception is resgestae or spontaneous utterances (S.A.B. at para. 26). [11] In McWilliams’ Canadian Criminal Evidence, 5th Edition (Toronto: Thomson Reuters, 2019) at 7:120:20 [McWilliams], the authors summarize the res gestae exception as follows: “a statement is admissible as evidence ofany matter stated if the statement was made by a person so emotionally overpowered by a contemporaneous event that the possibility ofconcoction or distortion can be disregarded.” Expanding upon this, the authors note, at 7:120:20, that there are two key criteria to thisexception: “(1) that the statement be made contemporaneous to an unusual, overwhelming event that (2) left the declarant (at the time ofthe declaration) under pressure or emotional intensity which would give the guarantee of reliability.” [12] In R v Trotchie, 2018 SKQB 129 at para 54, Justice Scherman set out the rationale behind admitting into evidence spontaneous utterances and actions, including that they are: (

i) not compromised by the passage of time and failing memory; (ii) the evidence surrounding the actions or utterances gives the trier the opportunity to assess whether the speaker’s or actor’sability to accurately observe and relate was compromised; and (iii) the spontaneity of the utterances or actions make it less likely they are the product of guile, some ulterior motive or of strategicreflection of the speaker. [13] When determining whether a statement qualifies as a spontaneous utterance, judges have looked to a number of factors forconsideration.

Whether a statement is contemporaneous to the event in question depends upon the circumstances of each particular case(S.A.B. at para. 27). Further, exact contemporaneity is not required (S.A.B. at para. 26).

A judge must consider the circumstances inwhich the statement was made “in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate thethoughts of the victim, so that his utterance was an instinctive reaction to that event” R v Andrews (1987), 84 Cr App R 382 (HL) at page391 [Andrews] as quoted in McWilliams at 7:120:20. [14] Whether a statement is spontaneous is also dependant upon the circumstances in which it was made (S.A.B. at para. 27).

Factorsrelevant to spontaneity include the passage of time and any intervening events R v Liard, 2015 ONCA 414 at para 63, 327 CCC (3d) 126.The statement must be “so closely associated with the event which has excited the statement, that it can be fairly stated that the mind ofthe declarant was still dominated by the event” (Andrews at page 391 as quoted in McWilliams at 7:120:20).

While the statement may bein response to a question, there is a requirement that it be unsolicited in that it cannot be a response to a leading question R v Simpson, at para 11, (NWT SC); McWilliams at 7:120:20; R v Hall, 2018 MBCA 122 at para 47, 368 CCC (3d) 520.

A trier offact “needs to consider the atmosphere in which the questions are asked and whether or not the person responding to the questions isresponding to the pressure of the questions or the pressure of the event” R v Wade Kapakatoak, 2018 NWTTC 10 at para 24. [15] The authors of McWilliams refer to a final factor as suggested in the Andrews case, and that is the absence of “special featureslikely to result in error by the declarant, such as drunkenness” (McWilliams at 7:120:20). The authors go on to write that it is uncertain

whether this criterion has been adopted in Canadian law, but there are several Canadian cases which suggest that it has been. I am of theview that the declarant’s drunkenness or intoxication must be considered. [16] McWilliams at 7: 120:20:10 specifically addresses whether 911 calls have been admitted into evidence under the res gestaeexception to hearsay as follows: A common form of res gestae statements is 911 calls made during or following the commission of a crime. As observed by the Alberta Court of Appeal in R. v.

Sylvain.427 ([1]) A review of the case law confirms that 911 calls have often been admitted under the res gestae exception to hearsay: R. v. Villeda, 2011ABCA 85 at para 22, 502 AR 83; Nicholas, supra at para 89; R. v. Hamilton, 2011 NSSC 305 at para 22, 284 CCC (3d) 386; R. v. Khan,2010 ONCJ 580 at para 22, 2010 CarswellOnt 9254; R. v. Dessouza, 2012 ONSC 210 at para 30, 2012 CarswellOnt 980; R. v. Vukaj,2012 BCSC 1396 at para 100, 2012 CarswellBC 2975; R. v. Freitas, 2010 ONSC 2031 at para 69, 2010 CarswellOnt 2811; R. v.Rahmanzadeh, [2005] O.J. No. 925, 2005 CarswellOnt 944 at para 10; R. v.

Byrnes, 2012 ONSC 2090 at para 26, 2012 CarswellOnt4003. In today’s information technology world, a 911 call in the middle of a crime is akin to a cry for help heard by someone nearby. In these circumstances, the someone nearby happens to be the 911 operator.428 [17] In R v Badger, 2019 SKPC 43 I admitted into evidence a statement made by a complainant during a recorded 911 call indicatingwho had shot him under the res gestae or spontaneous utterance exception to the rule against hearsay.

Other courts have also admittedsuch statements made during 911 calls. [18] In R v Nault, 2020 ABPC 26 the accused was alleged to have set fire to his half of a duplex and to have caused damage anddanger to residents of the other half of the duplex and injury to his two dogs. A voir dire was held to determine admissibility of 911audio recording which was made by a woman, who was the accused's former girlfriend, at the time of the fire. The Court decided that aseven-minute 911 call made by the woman was admissible as res gestae or spontaneous statement exception to hearsay.

The Courtdetermined the woman's statements as recorded in the 911 call were made under pressure from the startling act of witnessing her homebeing set on fire in circumstances which safely discounted the risk that these statements were concocted. [19] In R v Anthonypillai, 2020 ONCJ 537 the male accused was charged with uttering threats and with being in possession of aweapon for a dangerous purpose. The accused and female complainant were married for 25 years. The accused was alleged to haveused a large kitchen knife to cut the cord of the blender that the complainant was using before smashing it to the ground.

The accusedwas also alleged to have threatened to cut the complainant to pieces or to kill her. The Court held that the audio recording of the 911call made by the complainant fell within the long-established res gestae exception to the hearsay rule. THE PRINCIPLED EXCEPTION TO HEARSAY [20] Trial judges may also admit hearsay evidence under the principled exception to hearsay developed by the Supreme Court ofCanada in R v Khan, (SCC), [1990] 2 SCR 531 and Khelawon.

In R v Johnson, 2018 SKCA 28, 360 CCC (3d) 512Madam Justice Ryan-Froslie recently stated as follows at paragraphs 35 and 36: [35] In addition to the traditional exceptions, hearsay may be admitted as evidence under what has become known as the principledapproach. Under that approach, the party tendering the hearsay evidence must establish on a balance of probabilities that the twin criteriaof necessity and threshold reliability have been met.

Having said that, it must always be remembered that the admissibility of hearsayevidence is the exception, not the rule. [36] In criminal proceedings, the threshold reliability analysis has a constitutional aspect. This is so because the admission of suchevidence may affect the right to a fair trial (R v Khelawon, 2006 SCC 57 at paras 3 and 47, [2006] 2 SCR 787 [Khelawon]; Bradshaw atpara 24).

Even when the trial judge is satisfied the hearsay is necessary and sufficiently reliable for admission, he or she retainsdiscretion to exclude it if its prejudicial effect outweighs its probative value (Khelawon at para 49; Bradshaw at para 24).

[21] Recently the Ontario Court of Appeal in R v McMorris, 2020 ONCA 844 had occasion to summarize the principled exceptionapproach to hearsay evidence at paragraphs 21 to 31: [21] The principled exception is intended to enhance the truth-seeking function of a trial and accurate fact-finding. Hearsay evidenceis admissible under the principled exception if it “meets the twin threshold requirements of necessity and reliability”: R. v. Youvarajah,2013 SCC 41, [2013] 2 S.C.R. 720, at para. 21.

By the nature of these requirements, this must be “a flexible case-by-case examination”:Youvarajah, at para. 21. (a)Necessity [22] Necessity can be established when a witness dies, recants, or, as here, refuses to testify: Bradshaw, at para. 25; R. v. K.G.B., (SCC), [1993] 1 S.C.R. 740, at pp. 796-99. It is common ground that Bent’s refusal to testify satisfied the necessityrequirement in this case. The issue was whether Bent’s statements met the threshold reliability test. (

b) Threshold Reliability [23] The trial judge’s task is to determine threshold reliability on a balance of probabilities.

Ultimate reliability is a matter for thetrier of fact, in this case the jury. [24] Although it has been said that some form of cross-examination of the hearsay declarant is usually required, such as preliminaryinquiry testimony or cross-examination of a recanting witness at trial, the whole point of the principled exception to the hearsay rule isthat exceptions are acceptable in certain circumstances. [25] The methodology for trial judges to follow in determining threshold reliability, was prescribed in Bradshaw, at paras. 26-28, and30-32.

I re-state the methodology in brief. [26] Threshold reliability is established by showing that cross-examination of the declarant is unnecessary because there are: (1)adequate substitutes for testing truth and accuracy (procedural reliability); or (2) sufficient circumstantial or evidentiary guarantees thatthe statement is inherently trustworthy (substantive reliability); or (3) a combination of elements of both procedural and substantivereliability (which plays no role in this case). [27] The trial judge must specify the statement’s particular hearsay dangers regarding the declarant’s perception, memory, narration,or sincerity, and must evaluate whether and how the dangers specific to the case can be overcome because the truth of the statementcannot be tested by the declarant’s cross-examination. (

i) Procedural Reliability [28] Procedural reliability is established by showing that there are adequate substitutes for testing the hearsay evidence to permit thetrier of fact to rationally evaluate the truth and accuracy of the hearsay statement.

Substitutes might be a video or audio recording of thedeclarant’s statement, the presence of an oath, or a warning to the declarant about the consequences of lying. (ii) Substantive Reliability [29] Substantive reliability is established by showing that the hearsay statement is inherently trustworthy because of thecircumstances in which the declarant made it and evidence, if any, that corroborates it. [30] The standard for substantive reliability is high, but what is commonly referred to as the “circumstantial guarantee oftrustworthiness” does not require absolute certainty.

The trial judge must be satisfied that the statement is “so reliable thatcontemporaneous cross-examination of the declarant would add little if anything to the process,” for example, when the statement “ismade under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken,” so that the statementis so reliable that it is “unlikely to change under cross-examination,” or when the only likely explanation is that the statement is true:Bradshaw, at para. 31.

(iii) The Role of Corroborative Evidence [31] A trial judge may rely on corroborative evidence to find that a hearsay statement shows sufficient substantive reliability to justify a finding of threshold reliability: Bradshaw , at para. 4.

Karakatsanis J. set out the methodology and the principles for the use of corroborative evidence in the substantive reliability analysis in Bradshaw , at para. 57: 1. identify the material aspects of the hearsay statement that are tendered for their truth; 2. identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case; 3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and 4. determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

ISSUES [22] The issues before the Court are as follows: 1. Should the 911 audio recording of Jason Spiers statements be admitted into evidence under the res gestae or spontaneous utterance exception to hearsay? 2. Should the 911 audio recording of Jason Spiers statements be admitted into evidence under the principled exception to hearsay? 3. Should the statement of Jason Spiers to Cpl. Robinson be admitted into evidence under the res gestae or spontaneous utterance exception to hearsay? 4. Should the statement of Jason Spiers to Cpl. Robinson be admitted into evidence under the principled exception to hearsay?

Should the 911 audio recording of Jason Spiers statements be admitted into evidence under the res gestae or spontaneous utterance exception to hearsay? [23] In this case the 911 audio recording of Jason Spiers conversation with a 911 operator began at approximately 2:57 a.m. and ended two minutes and thirty-eight seconds later. Alyssa Tanner first called 911 at 2:47 a.m. when a home invasion and robbery was occurring. The home invasion and robbery appears to have ended around 2:57 a.m.

The 911 operator was seeking information from Alyssa Tanner, her mother Lisa Deroche and Jason Spiers about the suspects involved in the home invasion and robbery and their whereabouts. [24] I am satisfied that the Crown established that the statements made by Jason Spiers to the 911 operator were within minutes of the home invasion and robbery. This was an unusual, overwhelming event. The evidence before me reveals that during this early morning robbery Jason Spiers was struck in the head by one of the home invaders causing him to bleed. It appears he had also been stabbed.

Jason Spiers was clearly alarmed and frightened by these very recent events. I am of the view that it can be fairly stated that Jason Spier’s mind was still dominated by the recent events when he spoke to the 911 operator, which provides a guarantee of reliability. [25] While Jason Spiers had been struck in the head and was bleeding, the audio recording reveals that he followed the questions being asked of him by the 911 operator and responded appropriately.

In addition, there is little reliable evidence before me that suggests that Jason Spiers was drunk or high at the time of making theses statements which would have resulted in him making an error as to his recollection of recent events which he had experienced. On this point Alyssa Tanner simply speculated “I think possibly, my mom and Jason had used drugs”.

[26] For these reasons I find the statements made by Jason Spiers to the 911 operator in the early morning of October 24, 2019 are admissible pursuant to the res gestae or spontaneous utterance exception to the rule against hearsay. Should the 911 audio recording of Jason Spiers statements be admitted into evidence under the principled exception to hearsay? [27] As Jason Spiers is deceased and could not testify at trial, necessity requirement has been established. [28] The next issue to consider is whether threshold reliability has been established.

I will begin by considering procedural reliability which is established by showing that there are adequate substitutes for testing the hearsay evidence to permit the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. In this case there is a clear 911 audio recording of Jason Spier’s statement. However, Jason Spiers did not make his statement under oath nor did the 911 operator warn Mr. Spiers about the consequences of lying.

As a result I am not convinced that the Crown has established threshold reliability based on the 911 audio recording alone. [29] I am however, of the view that the Crown has established substantive reliability of Jason Spier’s statement. In this case I am satisfied that Mr. Spiers statements to the 911 operator are so reliable that contemporaneous cross-examination of Mr. Spiers would add little if anything to the process. Jason Spiers made his statement to the 911 operator within minutes of a home invasion and robbery.

I have previously found that this was an unusual and overwhelming event which alarmed and frightened Jason Spiers. I find that Jason Spiers was responding to the pressure of these events when he spoke to the 911 operator. I find his responses were spontaneous and candid and not the product of guile, some ulterior motive or of strategic reflection of Jason Spiers.

Indeed, despite the 911 operator’s suggestion there may have been three home invaders, Jason Spiers consistently maintained his position that for sure there were tow home invaders, maybe three. [30] I also find that there is corroborative evidence offered by Alyssa Tanner and police witnesses to find that Jason Spiers 911 audio recording, hearsay statements show sufficient substantive reliability to justify a finding of threshold reliability. [31] For her part, Alyssa Tanner testified that: (

i) From her basement room she heard two people trying to get into my mom’s bedroom. She specifically heard two male voices say “Open the door”. This corroborates a home invasion took place involving at least two men. (ii) It appears only after Alyssa spoke to her mother, Lisa Deroche that the prospect of three males entering the house was raised. (ii) She heard a male voice say “Give me the rings”. This corroborates a robbery took place in the house. (iv) She saw that her mom’s bedroom was destroyed, door kicked in, things thrown about. This corroborates a home invasion and robbery took place. [32] Cst. White testified: (

i) He saw three people exit the house in dark clothing and masks.

This corroborates a home invasion took place involving three men. [33] Cst. Koslosky testified: (

i) He saw three males exiting the back door of the house. (ii) He pulled Frankie Brass off the fence. A brown sawed off rifle fell to the dirt. This corroborates a home invasion and robbery took place involving a gun and three men. [34] Cst. Nicolson testified: (

i) He was told three males were exiting the house and hopping fences. (ii) He was situated at the mouth of the back alley. (iii) He arrested the accused, David Kearsey who was wearing a black hoodie in a nearby yard. He observed David Kearsey to drop a pistol and a knife to the ground. This corroborates a home invasion and robbery took place involving a gun, a knife and three men. [35] Sgt. McFetridge testified: (

i) He observed that Jason Spiers had an injury to his head. (ii) He photographed the interior of the house, showing parts of the front door were broken, Lisa Deroche’s bedroom was in disarray and the door to the bedroom was on the bed and two photographs of Jason Spiers showing what appears to be a head injury and blood on his head. This corroborates a home invasion and robbery took place. In addition it corroborates that Jason Spiers sustained a head injury and a cut to his hand. [36] Cpl. Robinson testified: (

i) She observed that Jason Spiers had an injury to his head and a cut to his hand. This corroborates that Jason Spiers sustained a head injury during a home invasion and robbery. [37] For the reasons as set forth above I find the statements made by Jason Spiers to the 911 operator in the early morning of October 24, 2019 are admissible pursuant to the principled exception to the rule against hearsay.

Should the statement of Jason Spiers to Cpl. Robinson be admitted into evidence under the res gestae or spontaneous utterance exception to hearsay? Should the statement of Jason Spiers to Cpl. Robinson be admitted into evidence under the principled exception to hearsay? [38] I have several concerns regarding the admissibility of the statement attributed to Jason Spiers. The testimony of Cpl. Robinson, in my view does not represent the actual words of Jason Spiers, rather it is in my view the officers

summary of some of the words spoken to her by Jason Spiers. In this case I have had the ability to compare the actual words spoken by Jason Spiers as set out in the 911 audio recording to the statement attributed to Jason Spiers by Cpl. Robinson. Clearly the words “ Some suspects had broken in . . .” are not the words of Jason Spiers. Rather they are the words of Cpl. Robinson acting in her role as a police officer investigating a crime.

Moreover, having reviewed the 911 audio recording of the actual words spoken by Jason Spiers it is clear that he did not speak in the logical and succinct manner as summarized by Cpl. Robinson. This is not a criticism of Cpl. Robinson and her investigation. She provided a helpful

summary of a conversation she had with Jason Spiers for the purposes of the overall investigation. This

summary, however, in my view should not be admitted into under either the res gestae or spontaneous utterance to hearsay, as it is in my view no longer truly spontaneous as the 911 call was. It appears this statement was elicited after a series of additional questions that Cpl. Robinson asked of Jason Spiers, which are unknown to the Court. In addition, I am of the view the Crown has not established procedural or substantive reliability with respect to this statement.

CONCLUSION [39] I find the statements made by Jason Spiers to the 911 operator in the early morning of October 24, 2019 are admissible pursuant to both the res gestae or spontaneous utterance and the principled exception to the rule against hearsay. The weight that I will ascribe to Jason Spiers statements is a matter for my decision on the trial proper. ______________________________ M. Hinds, J Appendix A Exhibit P-4 911 call to Regina Police Service. October 24, 2019. Call recording begins at 2:47 a.m.

Transcript begins at 8:42 into the call - or approximately 2:56 a.m. 911 Hi there, is this Lisa? LISA DEROCHE This is 911 Ok. Lisa, were there three suspects or two suspects? LISA DEROCHE There was three suspects as far as I remember 911 Three. Is anybody hurt?

LISA DEROCHE Mumbles.. yes, we are a little bit hurt, we got hit in the head a few times 911 Ok, you got hit in the head LISA DEROCHE Uhh..my.. friend is bleeding all over the place 911 Ok we’ll send an ambulance as well LISA DEROCHE I don’t think we need an ambulance 911 You don’t.. but if you were hit in the head they should check you LISA DEROCHE ( do you need an ambulance? ) 911 Do you know the names of the suspects at all? LISA DEROCHE No, I don’t think.. they had masks on 911 The suspects had masks, ok did they have guns? LISA DEROCHE Yes they had a gun 911 k. Any knives? LISA DEROCHE Yes.

They had a knife, they had a gun.. 2 guns 911 2 guns? LISA DEROCHE Yes, their faces were covered. They stabbed him in the hand and in the head 911 They stabbed him? LISA DEROCHE They cut off my finger(s) 911 Your friend got stabbed in the hand? LISA DEROCHE And in the head 911 In the hand and head? LISA DEROCHE Yeah 911 Ok, an ambulance is going to be needed. Are you going to be able see police there? LISA DEROCHE Uh yes, the police are outside back, they have the suspects 911 They have THE suspect?

LISA DEROCHE Yes, I think they have THE suspect 911 Ok, I thought you said there was three LISA DEROCHE Oh, they only have one of them 911 So describe the other two. Describe them

LISA DEROCHE I can’t describe them, I don’t know which one they have and they were all wearing masks and they made me look at the floor 911 k. they had on what kind of masks?

LISA DEROCHE Um I dunno.. ( calls out.. can you describe them or something I dunno.. ) Spiers You know what pieces of shit indians looked like, that like to rob people 911 I just need to.. ok.. but Spiers That’s what they look like 911 Ok, I just need to know Spiers Scumbag Indians 911 I need to know descriptions tho, that doesn’t help me sir Spiers Kay, well I dunno what they look like, they were wearing fucken masks and had shotguns and knives 911 Sorry? Spiers ( Mumbles ) they had shotguns, knives 911 With shotguns and knives? Spiers Yes 911 K did you know how tall they were? How old they were?

Spiers I have no idea, they jus stood with the gun and bashed my fucken head in 911 What’s your name? Spiers I’m sorry to be hysterical but.. 911 I understand, I understand but we need to be able to find them so we need clothing.. Spiers The cops found them, listen they’re laying in the back yard handcuffed right now 911 K but you said.. I thought there were OUTstanding males. I thought there was three Spiers No no no, the cops got em. The cops did their fucken job 911 Were there more than that one guy? Spiers Yeah there was two or three of them 911 K. what is your name? Spiers Jason Spiers 911 Jason what?

Spiers Spiers 911 Spiers? Spiers s-p-i-e-r-s 911 Ok. So there is three guys and they have one of them in the back, is that what you’re saying? Spiers Pardon me? 911 the male in the back and there was two others? Spiers Ahhh, I think so. There was definitely two maybe three 911 Ok. You’re not sure if there was two or three? Spiers No, there was two, MAYBE three 911 K Spiers ( asking someone in the background ) there WAS three? Yeah… fucking ( inaudible ) pieces of shit holy fuck man 911- starts At 8:41 We are going to send the ambulance to check you as well ok. Are you bleeding form the head or the hand?

Spiers Oh yeah 911 Both places? Spiers Oh yea, it never stopped 911 Do you know what kind of knife it was that they stabbed you with? Spiers I have no idea man 911 Ok Spiers NO idea 911 Ok Spiers ( talking to someone - hey, did you touch em? ).. they’ve got two 911 they got two? Spiers They got two guys in custody now 911 Ok. Do you think that there is a third one or do you thing that.. Spiers I don’t know for sure if there is a third one, there could have been 911 Ok. Spiers um I think two, I think there was only two 911 Lisa said three suspects, I just want to make sure.. if one is still out there

Spiers We don’t know for sure. We know there was two. 911 Ok, you know for sure two but Lisa thinks maybe three Spiers *talking to Lisa- I dunno Lisa, I think there only might have been two 911 Ok and do you know them? Spiers No I don’t know them. Do you think that we should know people like this?! 911 Ok. What did they take from you guys? Spiers Money. They just robbed us for money. 911 Ok. And did they steal jewelry?

Spiers Well they stole jewelry, they stole money 911 How much money do you know Spiers They thought we had a bunch of drugs or some fucken thing and we don’t have no dope here 911 They were looking for drugs? Spiers I guess so. Like we don’t have no fucken drugs, they got the wrong house 911 k. What part of the house are you in right now? Spiers Kitchen 911 k. Are you looking out the window right now? Spiers Pardon me? 911 Are you looking out the window? Spiers No 911 Are you with police yet? Spiers Pardon me? 911 Are you with any police officers yet?

Spiers Yeah, the cops are here, they been here for while 911 Ok but, are they in the house or just in the yard? Spiers Yeah, they’re in the house 911 Ok. I will let you go and talk to them Spiers Huh? 911 If they’re inside your house with you, I will disconnect Spiers Yeah. Ok 911 Ok. Thanks