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What a crime victim told an emergency 911 operator during a violent home invasion will be used as evidence at trial, a Saskatchewan Provincial Court judge ruled Jan. 29.

An injured Jason Spiers could be heard telling a 911 operator details about intruders during a home invasion in October 2019.

Spiers was unable to testify at a trial against the accused, David Kearsay, because he is deceased. Kearsay faces 11 charges in relation to the home invasion and armed robbery at 867 Princess St., in Regina, in the early morning hours of Oct. 24, 2019. Kearsay is charged with break and enter, as well as several weapons-related offences including with firearms and a knife.

During Kearsay鈥檚 trial Nov. 16 to Dec. 22, 2020, the court heard that Spiers spoke with a 911 operator for two minutes and 38 seconds. In that call he said there were definitely two and possibly three intruders.

Spiers told the 911 operator 鈥溾��they were wearing (expletive) masks and had shotguns and knives.鈥�

Spiers said the intruders wanted, 鈥淢oney. They just robbed us for money,鈥� and added, 鈥淭hey thought we had a bunch of drugs or some (expletive) thing and we don鈥檛 have no dope here鈥� Like we don鈥檛 have no (expletive) drugs, they got the wrong house.鈥澨�

Defence lawyer Louis Mercier was opposed to having the 911 audio recording admitted as evidence.

Judge Murray J. Hinds, in his ruling, said although Spiers鈥� statements during the 911 call are 鈥減lainly hearsay statements and were therefore presumptively inadmissible,鈥� he agreed with Crown Prosecutor Adam Breker鈥檚 position that the statement by Spiers should be admitted into evidence as res gestae, or the spontaneous utterance exemption against the admission of hearsay evidence.

鈥淭his 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 Spiers鈥� mind was still dominated by the recent events when he spoke to the 911 operator, which provides a guarantee of reliability.

鈥淲hile 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,鈥� said Judge Hind. 鈥淚n 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.鈥�

Judge Hind ruled that the 911 audio recording of Spiers鈥� statements will 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.

鈥淎s Jason Spiers is deceased and could not testify at trial, necessity requirement has been established.

鈥淚 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,鈥� said Judge Hind.

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