Court File and Appearances

Court File No.: CR-23-00000107-0000
Date of Ruling: 2025-04-02
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Gregory Anthony Beasley

Appearances:

• J. Cavanagh and C. Moreno, for the Crown
• R. MacDonald and E. Willschick, for the Defendant

Heard: April 1, 2025
Justice: Laurie Lacelle

Ruling – Section 9(2) Application of Canada Evidence Act

Introduction

[1] The accused, Mr. Beasley, is charged with two counts of first-degree murder. The deceased were shot in the head at a parking lot in Kingston on October 16, 2021.

[2] Mr. Beasley’s former girlfriend, Justina Murray, is a Crown witness. She has given evidence at trial about statements made to her by the accused about the murders as well as other issues.

[3] The Crown brings an application under s. 9(2) of the Canada Evidence Act to cross-examine Ms. Murray. The Crown says she has given prior recorded statements which contain material contradictions to her evidence at trial. The Crown says that in her trial evidence, Ms. Murray has feigned a lack of memory about various details relating to her interactions and conversations with the accused.

[4] The defence opposes the application. It says that there are no inconsistencies in Ms. Murray’s evidence. Rather, the defence says that Ms. Murray has never had a good memory of these events and her evidence reflects that fact in its devolution. The defence says the Crown should not be allowed to cross-examine a witness if the issue is only the quality of her memory. The defence rejects the idea that Ms. Murray is feigning her lack of memory and points to all of her utterances about the uncertainty of her recollection provided in her earlier statements.

[5] The defence further argues that since the Crown was aware going into the trial that Ms. Murray had these memory problems, its only purpose in calling her at trial is to suggest that she has been colluding with the accused and to thereby attack the defence case by painting the accused with the brush of this alleged collusion. The defence points to the case law, including R. v. Soobrian, [1994] O.J. No. 2836 (C.A.), which holds that the Crown ought not to be able to cross-examine a witness under s. 9 of the Canada Evidence Act where this is its purpose.

[6] The defence also points to circumstances in Ms. Murray’s videotaped statement after her arrest on August 22, 2022, and argues that she only provided the evidence she did to escape interrogation in difficult conditions, for instance because she was cold and hungry. This statement is no more than Ms. Murray succumbing to police pressure.

[7] The defence also relies on R. v. Merritt, 2023 ONCA 3 to argue that the court should exercise its residual discretion to prevent the proposed cross-examination by the Crown since this will expose the jury to Ms. Murray’s earlier statements which are unlikely to be adopted. Further, the defence says the meaning of Ms. Murray’s earlier statements is difficult to discern and the court should consider their admissibility under R. v. Ferris, [1994] 3 S.C.R. 756 and R. v. Schneider, 2022 SCC 34, 2022 S.C.J. No. 34. In all the circumstances, the defence argues that permitting the cross-examination of Ms. Murray on her prior statements will cause such prejudice to the defence case that it should not be permitted.

[8] During the trial, which proceeded before a jury, I advised the parties that I would permit the Crown to cross-examine Ms. Murray on her previous inconsistent statements under s. 9(2) of the CEA. These are my reasons for that ruling.

The Legal Principles

[9] In R. v. Taylor, 2015 ONCA 448, Watt J.A. set out at paras. 43-51 some of the governing principles when a party seeks to cross-examine its own witness under s. 9(2) of the CEA. Where certain prerequisites are met, the presiding judge has the discretion to permit cross-examination “as to the statement”. In exercising her discretion, a judge should “determine whether to grant leave to cross-examine by asking whether the ends of justice are best attained by permitting it”: para. 47. Writing for the court, Watt J.A. also confirmed that reliability “is not an essential component of a prior statement under s. 9(2)”: at para. 51.

[10] In this case, there is no dispute that the statements upon which the Crown proposes to cross-examine were made by Ms. Murray. They are all recorded statements. They include her videotaped statement to police following her arrest on August 25, 2022, her videotaped and sworn statement to police on September 16, 2022, and her preliminary hearing evidence of December 7, 2023.

[11] As I have outlined above, the issues in this application relate to whether Ms. Murray’s trial evidence and prior statements are inconsistent, as well as other issues which the defence says should preclude cross-examination.

There Are Inconsistencies Between Ms. Murray’s Trial Evidence and Her Prior Recorded Statements

[12] Beginning with the foundational issue of whether Ms. Murray’s trial evidence is inconsistent with other recorded statements she has made, I am satisfied that Ms. Murray’s trial evidence is inconsistent from her prior recorded statements in several respects. Below, I outline my findings about how Ms. Murray’s trial evidence is inconsistent on various issues relating to her conversation(s) with the accused about the murders and their circumstances:

a. Whether the accused was crying when he told her what he did – in each of her statements on August 25, 2022, and September 16, 2022, Ms. Murray repeatedly described the accused crying, whereas at trial she said that during the conversation he was stressed out but she did not remember him crying, she did not remember tears;

b. Who committed the murder – in her statement of August 25, 2022, Ms. Murray said that she could not recall the exact wording used by the accused, but he told her that he killed two people, or that he killed people, or someone. Similarly, in her statement of September 16, 2022, she said she forgot how he had said it, but she knew that he had just killed someone. Her trial evidence was that she did not remember what the accused said about who killed the victims. This is plainly inconsistent;

c. That the accused was ordered to commit the murders by a person in jail – in her statement of September 16, 2022, Ms. Murray said the accused told her he was told to commit the murders because someone in jail had problems with whoever was killed, whereas at trial she said she understood someone from jail was giving the order in relation to the murders, but not that the order was given to the accused – this is inconsistent;

d. That the accused was to be paid for carrying out the order from jail – in her statement of September 16, 2022, Ms. Murray said the accused told her he was supposed to be paid, and that someone told him to do it for “big money”. In her evidence at the preliminary inquiry, she also said the accused was supposed to get money. At trial, she said that she heard from the accused that someone was supposed to get paid, and that the accused did not tell her who. The prior statements and the trial evidence are inconsistent on the point of who was being paid for the murders.

[13] To be sure, Ms. Murray frequently stated in her trial evidence that she no longer had a memory of the conversation with the accused, or certain parts of it. Contrary to the defence submission, however, I reject the suggestion that the witness has never demonstrated a sufficient memory of the statements she made. While she allowed that she was not sure of certain details about what the accused said to her, in each of her police statements she provided cogent accounts of what the accused told her.

[14] The law is clear that a claimed lack of memory may establish an inconsistency for the purposes of a s. 9(2) application: see R. v. McInroy and Rouse, [1979] 1 S.C.R. 588; R. v. Curry at para. 28; R. v. Mariani, 2007 ONCA 329 at paras. 30-32; R. v. C.L.S., 2011 MBQB 12 at paras. 11-13. In this instance, I am satisfied that the discrepancies I have outlined above amount to inconsistencies. They are not subtle differences in Ms. Murray’s account of what the accused told her that might be explained as a genuine lack of memory, unlike the circumstances in Curry.

[15] The points upon which Ms. Murray says her memory now fails her are material. They implicate the accused in committing the murders. Her account at trial resiles significantly from this. I do not accept that this is a coincidence, particularly given all the reasons that Ms. Murray has to avoid implicating the accused. These include her feelings for him (she loved him at one point), and her fear that she might be killed for giving evidence implicating someone in a murder. I am satisfied on a balance of probabilities that Ms. Murray is feigning her memory loss, for the reasons advanced by Crown.

The Crown Has Not Improperly Called Ms. Murray and Its Reliance on s. 9(2) Is Not an Abuse

[16] The defence argues that the Crown application should fail because its intention is only to paint the accused with the brush of alleged collusion and thereby attack the defence case. I reject this argument. In doing so, I consider the law following Soobrian, which was reviewed by Doherty J.A. in R. v. Figliola, 2018 ONCA 578.

[17] I find that Ms. Murray is an important Crown witness with material evidence on a number of issues. While it did not implicate the accused as fully as her prior statements, Ms. Murray’s trial evidence nevertheless included important evidence for the Crown. She gave context to conversations with the accused captured by wiretaps, which included after the fact conduct evidence relied upon by the Crown. She described a conversation with the accused proximate to the murders where he was upset to learn that one of the victims had survived the shooting. By itself, this evidence suggested the accused was involved in the killing. Ms. Murray also gave evidence about contact that she had with the accused when he was using the Rucker phone on the day of the murder, and about messages she received from other devices associated with the accused on the day of the murders. The latter messages were evidence relied upon by the Crown to argue that the murders were planned and deliberate.

[18] There can be no doubt that Ms. Murray had material evidence to give even if she resiled from her account of what the accused told her about his participation in the murders. The Crown had legitimate reasons to call Ms. Murray as a witness to support important features of its theory of the case. I find that there was no unfairness in the Crown calling Ms. Murray as a witness, and, if she resiled from certain parts of her prior recorded statements, seeking to cross-examine on them.

[19] Soobrian and its progeny do not foreclose the cross-examination of Ms. Murray, and to hold otherwise would be contrary to the interests of justice, regardless of whether the witness is likely to adopt the statement. On this point, I note that cross-examination under s. 9 of the CEA is a step to be taken by the Crown in anticipation of a KGB application, which application the Crown intends to pursue in the event Ms. Murray does not adopt her earlier statements.

The Cross-Examination Is Not Precluded by Schneider

[20] Further, I am not satisfied that any of what Ms. Murray reports the accused said to her is so devoid of context that the statements’ meaning are speculative. I find that there is ample context for Ms. Murray’s account of the accused’s statements in her recorded statements. Their meaning is clear. They are not incomplete or partial statements, as discussed in Merritt. While Ms. Murray may not have been certain of the exact language used by the accused when he told her about his involvement in the murders, she was clear about the gist of what he told her. I find that the Crown is not seeking to cross-examine on statements whose meaning is speculative or incomplete. The cross-examination should not be barred for that reason.

The Residual Discretion to Exclude Evidence and to Rule That Cross-Examination Ought Not to Be Permitted

[21] The defence argues that Ms. Murray’s police statements were given in circumstances that undermine their reliability. However, as set out in Taylor at para. 51, the reliability of the prior statements is “not an essential component of a prior statement under s. 9(2), at least not in the same sense reliability is used in connection with prior statements admissible as substantive evidence under the principled exception to the hearsay rule: R. v. Tran, 2010 ONCA 471, 257 C.C.C. (3d) 18, at para. 328”.

[22] Further, I am not persuaded that Ms. Murray’s police statements were not voluntarily given, or that their reliability is undermined by leading questions by police, for the reasons advanced by the Crown in its oral argument on the voir dire.

[23] I find that Ms. Murray’s prior inconsistent statements are highly probative on the central issue in this case, which is the identity of the killer. I am not satisfied that cross-examination will result in moral or reasoning prejudice to the accused, particularly since the Crown has confirmed its intention to bring KGB application if Ms. Murray does not adopt her statements. If Ms. Murray adopts any part of her earlier statements, the jury can be instructed on the use of what she has and has not adopted.

It Is in the Interests of Justice to Permit Cross-Examination

[24] Ms. Murray is an important witness who has given prior recorded statements which are highly probative about the central issue in this case, which is the identity of the killer. She now claims to have no memory of the accused’s admissions to her about his involvement in the killings. I find that it is in the interests of justice that the Crown be permitted to cross-examine Ms. Murray pursuant to s. 9(2) of the CEA.

Honourable Madam Justice Laurie Lacelle
Ruling made orally: April 2, 2025
Reasons released in writing: June 19, 2025