Spontaneous utterance: How a briefly pointed finger wasn't enough to keep a man in jail

The Court of Appeal found that the judge who convicted Nicholas Sean Pelletier improperly admitted hearsay evidence at his trial.

Published Feb 14, 2024 • Last updated 2 hours ago • 4 minute read

The Saskatchewan Court of Appeal has overturned the trial decision convicting Nicholas Sean Pelletier of aggravated assault and firearms offences, finding hearsay evidence was improperly admitted at trial. Photo by BRANDON HARDER /Regina Leader-Post

Nicholas Sean Pelletier did it, a provincial court judge heard and so decided.

That’s what Regina Police Service (RPS) Const. Tyler Gruber testified he was told by a “frantic” Kyle Sparvier on Aug. 25, 2019, after he asked the badly injured man what happened. The statement contributed to Pelletier being convicted of aggravated assault, along with a couple of firearms offences, in 2022.

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He was declared a dangerous offender and handed a hefty sentence — around 8 years in a federal prison, less credit for time spent on remand, followed by a seven year long-term supervision order. By the time he was sentenced, he’d already done more than two years on remand.

But as of Monday, all that was scrapped by the Court of Appeal, which wiped the conviction off Pelletier’s record, and made way for him to be turned loose, according to his lawyer.

Why? Well, it has to do with what’s called hearsay, and when it can be admitted as evidence in court.

Put simply, hearsay is evidence of something someone said outside of court.

A woman who was walking her dog on the date in question told court that she’d been approached by a bloody Sparvier who’d asked her if she could call the police, and said: “They just beat me up.” Gruber testified that when he later found Sparvier at a gas station on Saskatchewan Drive, the injured man told him Pelletier pistol-whipped him several times in a nearby residence.

Sparvier himself never showed up to testify at trial, and therefore could not be questioned about what he’d allegedly said.

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These statements attributed to Sparvier would be considered hearsay.

Hearsay is not typically viewed as trustworthy by the courts, for a variety of reasons, and is therefore generally not admissible.

So, why did the trial judge allow into evidence the statements allegedly made by Sparvier?

Well, there are a number of exceptions to the general rule on hearsay evidence, one of which is referred to as the “spontaneous utterances” exception.

That exception comes into play where a judge can be satisfied of two things, as referred to by the Feb. 12 Court of Appeal decision on Pelletier’s case written by Justice Brian Barrington-Foote, with former Chief Justice Robert Richards and Justice Lian Schwann in agreement.

Effectively, those are that: 1) the statement was made “contemporaneous” to “an unusual, overwhelming event” that 2) left the person who made the statement, at the time it was made, “under pressure or emotional intensity which would give the guarantee of reliability.”

Basically, the idea is that if someone says something while overwhelmed by some dramatic event that just occurred, the “possibility of concoction or distortion” can be disregarded.

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Evidence about what Pelletier told the officer and the woman was admitted under that exception. But Pelletier’s lawyer for the appeal, Andrew Hitchcock, argued the trial judge made mistakes in doing so.

Specifically, he argued the judge failed to engage the evidence relating to the timing requirement of the exception.

The Court of Appeal agreed.

“Importantly, the trial judge did not find when the assault had occurred, despite that the timeline was at issue in this case,” Barrington-Foote wrote.

Because of this, the judge did not properly apply the test to find that Sparvier’s alleged statements were made close enough in time to the assault to satisfy the requirement for the spontaneous utterances exception, the Court of Appeal found.

Evidence from the woman who had been walking her dog suggested the assault occurred more than 30 minutes before Sparvier spoke with Gruber, Barrington-Foote concluded. This was in contrast to what the appeal judge termed Gruber’s “unfounded conclusion” that the assault happened only minutes before he found Sparvier, based in part on the officer’s “erroneous belief” Sparvier was wearing a blood-soaked shirt.

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The trial judge also made an error in “failing to consider the evidence bearing on the question of whether Mr. Sparvier was emotionally overpowered,” the appeal judge wrote.

There was no evidence that Sparvier was in a panic when he told the woman he’d been beat up, and there was no evidence of what he did between that encounter and when he spoke to the officer, he noted.

Regarding what Sparvier allegedly told the officer, the appeal judge wrote: “The trial judge’s reasons on that point demonstrate that he equated the fact that Mr. Sparvier was angry because he had been beaten with being emotionally overborne within the meaning of the legal test. That, too, reflects an error of law.”

Having decided the hearsay evidence should not have been admitted, the case turned on evidence that was circumstantial.

The appeal judge wrote that this evidence — the gun found, the blood analyzed, Pelletier’s behaviour when found — could support a conclusion that he committed the offences alleged.

But in a circumstantial case, to convict someone, a court must be left with no other reasonable conclusion.

In this case, the Court of Appeal found the trial judge could’ve also inferred, based on the evidence, that Pelletier was present during the assault but did not commit it, and that someone else hid the gun.

“For these reasons, I conclude that an acquittal must be entered in relation to all of the charges.”

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