Reasons for Decision – Crown Application under s. 9(2) of the Canada Evidence Act – Re-examination of Justina Murray

Court File No.: CR-23-0000000107-00
Date of Ruling (Oral): April 9, 2025
Reasons Released in Writing: June 19, 2025
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 8, 2025
Justice: Laurie Lacelle

Introduction

[1] The Crown brings a second application under s. 9(2) of the Canada Evidence Act to cross-examine its witness, Justina Murray, in re-examination. A prior s. 9(2) application by the Crown was granted during the witness’s evidence in-chief.

[2] The Crown submits that Ms. Murray has given prior recorded statements which contain two material contradictions to her evidence during cross-examination by defence counsel.

[3] The defence opposes the application. It says this is not a time for the Crown to be expanding a s. 9(2) application. The defence also argues that the proposed questioning does not fall under the umbrella of proper re-examination, since the Crown could have anticipated the issues upon which it now seeks to re-examine and should have explored them in its exam-in-chief. The defence says that while the court’s main concern should be that this is not proper re-examination, it should also be concerned that there is no reported case where the breadth of a s. 9(2) application has been expanded in re-examination.

[4] 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 during its re-examination. These are my reasons for that ruling.

The Legal Principles

Section 9(2) of the Canada Evidence Act

[5] As I reviewed in my earlier s. 9(2) ruling for this case, 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.

[6] There is no restriction on when a s. 9(2) application may be brought. It may be brought in re-examination: R. v. Moore at para. 105; R. v. J.(J.) at paras. 42-44; R. v. Grizzle, 2016 ONCA 190 at para. 10.

[7] Nor is there any bar to multiple s. 9(2) applications during the evidence of the same witness: J.(J.) at paras. 42-44.

Re-examination

[8] The law relating to the right to re-examine was set out in Moore at para. 102, where the court held that this right “exists only where there has been cross-examination, and must be confined to matters arising in cross-examination. New facts cannot be introduced in re-examination. The judge may, however, in his discretion grant leave to introduce new matters in re-examination and the opposite party may then cross-examine on the new facts”. In other words, the general rule is that re-examination is permissible only where cross-examination raises a new issue.

[9] The law on this issue was also explained in R. v. Roche-Garcia, [2024] B.C.J. No. 1567 (C.A.) at para. 169. As that case makes clear, permitting the Crown to elicit evidence about new issues in re-examination may have the effect of allowing the Crown to present its case in a piecemeal fashion. This can significantly and unfairly prejudice the defence and may result in a new trial: see paras. 172-174.

Analysis

There are inconsistencies between Ms. Murray’s trial evidence and her prior recorded statements

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

[11] I find that Ms. Murray’s evidence during cross-examination is inconsistent with her prior recorded statements in the two ways argued by the Crown.

[12] First, Ms. Murray agreed with the suggestion made by defence counsel that the phone call received by the accused at the Admiral Inn could have been to the effect that his friend had been shot and this would explain why he was upset. She agreed that at some point the accused told her he was worried because people were going to think he murdered the men. This is inconsistent with her evidence during the preliminary hearing that the accused did not tell her that two of his friends were shot in Kingston, and she honestly did not think it was possible he had told her that. Her evidence during cross-examination to the effect that the accused might have been upset because his friend was shot is also inconsistent with prior statements made during her recorded police interviews where she said the accused was upset that one of the men had lived.

[13] Secondly, Ms. Murray agreed with a line of questioning from defence counsel to the effect that during her post-arrest videotaped interview on August 25, 2022, Ms. Murray said the things she did about her discussions with the accused because she was telling the police what they wanted to hear. The Crown submits that the contents of the interview at the point at which Ms. Murray starts giving information to police provides an alternative narrative of why she started talking to police (pp. 26-27 of the transcript of the interview). In this portion of the interview, Ms. Murray tells police that she is done lying to the police, that she “just wants this to be over”, that she didn’t know what to do, and she was scared. I agree that Ms. Murray’s comments to this effect in her prior recorded statement are inconsistent with her evidence during cross-examination that she was just telling the police what they wanted to hear.

The Crown is entitled to re-examine the witness on these issues

[14] I also find that permitting the Crown to address these issues in re-examination is within the scope of proper re-examination.

[15] With respect to the first inconsistency outlined above, I agree with the Crown that there is a logical flaw in suggesting that the Crown should have anticipated that Ms. Murray might agree with defence counsel about something she had rejected under oath at the preliminary hearing, and that it should have put that issue to her. The defence in its submissions effectively acknowledges being surprised by the witness’s answer, since she had said something different at the preliminary hearing. Counsel candidly acknowledged that the defence asked the question of Ms. Murray despite her prior answer in order to comply with its obligations under Browne v. Dunn. In these circumstances, the Crown cannot be faulted for failing to address this issue in its examination in-chief.

[16] Ms. Murray’s answer to the question about whether it was possible the accused was upset after the phone call because he had learned a friend had died and about whether he told her his friends had died was a surprise to both parties. The Crown was under no obligation to ask Ms. Murray about this issue in its case in-chief. I find that the issue only arose because of the defence cross-examination and the Crown is entitled to question the witness further about her answer in cross-examination.

[17] As for the suggestion that the Crown is now improperly seeking to expand its original s. 9(2) application, there was no inconsistency on this point in the witness’s evidence at the time of the initial application. This is a new application. While it may be unusual to have multiple s. 9(2) applications during the evidence of the same witness, the law does not foreclose a new application in re-examination.

[18] Similarly, Ms. Murray’s agreement with defence counsel that she was telling the police what they wanted to hear during her videotaped statement of August 25, 2022, raises a new point of inconsistency. This issue had not crystallized at the time of the initial s. 9(2) application. Permitting the Crown to cross-examine Ms. Murray in its re-examination on her statements to police relating to her decision to start giving them information is not unfair.

[19] Nor do I accept that the Crown was required to pursue themes explored by the defence in a prior proceeding during its examination in-chief at trial. The issues raised by the defence in a prior hearing may or may not be re-visited with a witness. There is no law to support the defence position that the Crown should be foreclosed from re-examination on an issue at trial because it was raised with a witness at a preliminary hearing.

[20] I find that the Crown is entitled to re-examine Ms. Murray on the two issues I have outlined. Given the inconsistencies in Ms. Murray’s prior recorded statements, the Crown may also cross-examine her on her prior statements. As confirmed in Taylor at para. 49, “examining counsel is entitled to know whether the witness’s departure in their trial testimony from a previous out-of-court statement was to protect the accused”. Accordingly, the scope of a s. 9(2) cross-examination includes “questions that attempt to unearth why the witness has changed his evidence at trial from what he had said in a previous, more contemporaneous out-of-court statement” (citing R. v. Dayes, 2013 ONCA 614). The Crown is entitled to make suggestions to Ms. Murray about why she has changed her evidence.

It is in the Interests of Justice to Permit Cross-examination

[21] Finally, as required by Taylor, I confirm that I have considered whether it is in the interests of justice to permit the proposed cross-examinations in re-examination. Ms. Murray is an important witness who has given prior recorded statements which are highly probative to the central issue in this case, which is the identity of the killer. Her evidence about what the accused said to her about the deaths, and why she told police the accused said certain things, are important to this trial and likely to be central to the fact-finding of the jury. The issues about which she has been inconsistent are properly addressed in re-examination.

[22] Further, I find that there is no prejudice to the accused from the proposed cross-examination or re-examination. Unlike in Roche-Garcia, the proposed questioning does not permit the Crown to split its case and thereby deprive the defence of an opportunity to explore an issue not previously raised. This case is also not like J.(J.), since the statements upon which Ms. Murray will be cross-examined have been admitted for their truth pursuant to a KGB application, and are properly before the jury for substantive purposes. There is no risk that the jury will improperly use the parts of the statements referred to by counsel during cross-examination.

[23] Finally, while it was not extensively argued during submissions on this voir dire, I have considered that Ms. Murray’s prior recorded statements have been admitted for their truth and much of what Crown counsel seeks to accomplish with its re-examination could arguably be achieved in closing arguments. Upon reflection on the issue, I agree that the Crown may properly seek to rehabilitate the witness by putting its theory to her about why she has changed her evidence on the issues I have outlined. While other tactics might have been available to the Crown, this does not preclude it from seeking to engage rules of evidence that allow it to ask questions about these particular inconsistencies.

[24] For these reasons, 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 during its re-examination.

Laurie Lacelle
Ruling given orally: April 9, 2025
Reasons released in writing: June 19, 2025