Court File and Parties

Court File No.: CR-23-00000107-0000
Date: 2025-04-07
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 3 and 4, 2025
Judge: Laurie Lacelle

Reasons for Ruling on Crown’s KGB Application

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 16th, 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 and other issues.

[3] The Crown brings an application to have the prior video recorded out-of-court statements by Ms. Murray admitted for the truth of their contents. Ms. Murray has given evidence that is inconsistent with those statements during her evidence at trial. She did not adopt material aspects of her prior recorded statements during cross-examination under s. 9(2) of the Canada Evidence Act. The defence opposes the application to admit her prior videotaped statements for their truth.

[4] During the trial, I ruled that the statements would be admitted for their truth, along with Ms. Murray’s testimony at the preliminary hearing. These are my reasons for so ruling.

The Positions of the Parties

The Crown

[5] The Crown submits that the evidence implicating Mr. Beasley as the shooter is unavailable to the jury given that Ms. Murray did not adopt any of her prior statements to that effect. Therefore, the necessity criterion has been met.

[6] The Crown argues that Ms. Murray’s videorecorded statements meet the standard of threshold reliability because there is an overwhelming record that the markers of procedural reliability are present for each statement.

[7] The Crown emphasizes the jurisprudence which holds that the most important marker of procedural reliability is the ability to cross-examine the declarant. Further, there are other markers of procedural reliability, since the statements are recorded. One statement was sworn, while there are substitutes for the oath with the other. The Crown submits the procedural reliability markers here support the admission of the statements for their truth.

[8] The Crown also submits there are other circumstantial guarantees of trustworthiness which function with corroborative evidence to demonstrate the statement’s substantive reliability.

[9] The Crown argues that, as required by Khelawon, the trier of fact will be in a position to rationally evaluate the truthfulness of Ms. Murray’s evidence and her prior statements. Accordingly, the prior inconsistent statements should be admitted.

The Defence

[10] The defence argues that the Crown has not established necessity. The defence says that Ms. Murray has not recanted her evidence, she has simply explained that she was never certain about what she reported to police. The defence relies on R. v. Fitzpatrick, 2022 ONSC 1880 and argues that the Crown has not shown a “pivot” in the witness’s testimony, because the witness has simply explained why her statements, born out of suspicious circumstances, have evolved. Further, the evidence is not “unavailable” because the Crown has been able to cross-examine Ms. Murray on her prior statements. Moreover, the defence says that when her preliminary hearing evidence is considered alongside her videotaped statements, it is clear that the witness has not disavowed her evidence but has offered a different version. The defence relies on R. v. Vader, [2016] A.J. No. 479 and R. v. C.R., [2005] O.J. No. 3256, in urging the court to find that there has been no recantation in this case.

[11] Nor, the defence submits, has the Crown demonstrated the threshold reliability of the statements. It argues that there are very significant issues with the procedural reliability of the August 25, 2022, statement in particular. The defence says it was not voluntary. Further, it was not made under oath or following a warning about the importance of telling the truth.

[12] With respect to substantive reliability, the defence says that the Crown’s identification of corroborating evidence is misguided, since all the evidence it cites is equally consistent with the scenario that the accused simply received a phone call about his friends being murdered and was upset about that.

[13] Most importantly, the defence forcefully submits that this is a case where the statements ought not to be adduced because their probative value is vastly outweighed by their prejudicial effect. Counsel submits that if the court finds that the admissibility of the evidence is “close to the line” having regard to the weight of the evidence going to necessity and reliability, then the court should exercise its gatekeeper function and use its residual discretion to exclude the statement.

[14] The defence argues that the statements are tainted by information provided to the witness by the police, and that she was coerced into providing the statements. The defence submits that the evidence has no probative value because the witness has second guessed herself throughout and no weight can be accorded to this type of evidence. To admit the evidence will also create “a sideshow” and will place undue focus upon this witness and her evidence given the time she has already been testifying before the jury. The defence suggests the court should take the approach taken in R. v. M.A.A., [2004] B.C.J. No 2990 (a decision of the British Columbia Youth Court), where the court concluded that given the inconsistencies between the witness’s police statements and preliminary inquiry evidence, none of the statements should be admitted.

The Statements at Issue

Police Interview of August 25, 2022

[15] This interview was done at the Kingston Police station after Ms. Murray was arrested for obstructing justice in Toronto and transported to Kingston. At first, she told police she did not know who Anthony Beasley was. She denied knowing anything about the phone numbers police showed her which were linked to the accused. Throughout this portion of the interview, police played recordings of intercepted phone calls between Ms. Murray and Mr. Beasley in the weeks leading up to her arrest. Sometimes Ms. Murray was left alone in the interview room as they played.

[16] At one point, Ms. Murray asked if the person police believed had done the murder was in jail, and Sgt. Parslow confirmed he was. After that, Ms. Murray told police that she was finished lying to them and she just wanted this to be over. She said she didn’t know what to do, and she apologized for being rude to police. She also asked what was going to happen to her, and whether she would be going to jail.

[17] Ms. Murray told the police she didn’t remember the timeline of events. And she said she did not know if talking to police was going to get her killed.

[18] She said that Mr. Beasley told her by accident. They were in a hotel, the Admiral, when they had a conversation. She said Mr. Beasley was crying, that he left the hotel to walk, and he was crying. She said she pried it out of him the next few days after that.

[19] When asked to tell the police about that conversation, she said she did not remember the exact wording, but he told her he killed two people. She said she remembered hearing that and being sick, and Mr. Beasley crying and crying. A few minutes later, she told police that he did not tell her he killed two people, just that he said he killed people, or someone, she didn’t remember the exact wording. She said she did not know at the time that it was two people.

[20] She said that at first, she had gone to follow him when he left the hotel room and he screamed at the top of his lungs. She said she did not get any details at all, that she got it out of him quick, and he took it back kind of thing. She said he told her it was a mistake for him to tell her.

[21] Police asked Ms. Murray about when the conversation at the Admiral happened. She said it was at least a week before a Halloween Party she attended with Mr. Beasley.

[22] Ms. Murray was asked about texts she received from a phone associated with Mr. Beasley on the day of the murders. She said she was confused to receive a text saying, “hey momma”, and that afterwards she found out it was someone using his phone. She never knew who, but it was one of his friends. He told her after the fact that he needed his phone to be somewhere else. She denied he ever told her he was in Kingston.

[23] Ms. Murray was asked about conversations she appeared to have with Mr. Beasley over the time the intercepts were in place. She said she did not remember and that she was a pothead.

[24] During the interview, she addressed Mr. Beasley directly and told him she was sorry, and that she loved him. She told Sgt. Parslow that she cared about Mr. Beasley and that she hated that this was happening. She also told Sgt. Parslow that she missed him so much.

[25] At the end of the interview, Ms. Murray told police she just wanted to go home.

Police Interview of September 16, 2022

[26] At the beginning of this interview, Ms. Murray was asked if she was there voluntarily and if her statement was freely given. She said it was. She confirmed she understood it was a criminal offence to wilfully obstruct police, and Det. Fisher commented that she knew that better than most. Ms. Murray agreed she had reviewed a transcript of the second half of her interview with police on August 25th. She said she had no new information to provide to it. She was then asked by a commissioner of oaths to solemnly affirm that her evidence in the investigation would be the truth, and she did.

[27] After that, Ms. Murray was asked if anything she had said in that second half of her interview in August was untrue, and she said no.

[28] In this interview, Ms. Murray said she remembered Mr. Beasley saying he was going to go away, but she did not know why. She said she remembered him saying he was going to leave his phone and someone else would text her. She did not ask questions. She said in this interview that when she got a text from his phone that said “hey mamma” that day, she knew it was not him.

[29] In this interview, Ms. Murray said she remembered the day Mr. Beasley broke down. She remembered him screaming outside and said he did not tell her anything outside. She said he was crying and kept saying he could not tell her. Then he went back into the hotel, and he was on the floor, knees on the floor, on the bed, crying. She said it took her however long, and she didn’t remember the exact wording, but whatever he said, she knew he had just killed someone.

[30] Ms. Murray said the reason that Mr. Beasley had screamed outside was because he got a phone call, and the person told him that one of them was still alive. That’s why he was so upset. He did not tell her who called. She then said she had no idea who the person was who was telling him to do these things, but he had someone telling him to do it. She said he was supposed to get paid, which she knew because he told her. She said he told her someone told him to do it to get paid big money. She said she never saw the money. She said she was pretty sure the person who told him to do it was from inside jail. She said Mr. Beasley told her someone in jail had problems with whoever was killed, and that’s why he was told to do it.

Preliminary Inquiry Evidence on December 7, 2023

[31] Ms. Murray testified at the preliminary inquiry for this case on December 7, 2023. She affirmed that her evidence would be the truth.

[32] In her evidence, she was asked by the Crown about her police interview on August 25th of 2022. She said she got tired, and she knew she was caught because police had recordings of her.

[33] Ms. Murray was asked by the Crown what she recalled about a visit she and Mr. Beasley had at the Admiral Inn in October of 2021. She said Mr. Beasley broke down and let her know something. When asked what he told her, she said she was kind of guessing a lot of it. She said she went outside to look for him when he went for a walk, and he yelled at his cell phone. She continually asked what was wrong. She said she was told essentially that something went really wrong in a murder, and he was stressed about it. When asked what went wrong, she said that somebody was still alive. She said Mr. Beasley found that out because someone called him. When she was speaking to him, she said he was crying.

[34] Ms. Murray said she remembered the part where they were outside mostly because it was so vivid. She said what occurred in the room was a big blur, and she did not remember exactly what was said in the room. She did remember that in the room that she was sitting on the right side of the bed, and he was standing nearby. She said she did not remember the conversations she described in the August video, but obviously they happened because she “said them”. She said she did not remember anything inside the hotel room other than stress and feeling nauseous. She said she did not remember how Mr. Beasley said it, but she guessed that he told her he killed two people. She agreed she was left with the impression that a murder had happened, and Mr. Beasley told her this.

[35] Ms. Murray testified that she was told Mr. Beasley would not have his phone on him and that she would be getting a message from somebody else. She was asked when Mr. Beasley told her this, and said it was before the conversation at the hotel. She said he had left the phone with someone else before he had gone to Kingston.

[36] Ms. Murray was asked about her understanding from speaking with Mr. Beasley why he had done what he did. She said she had “an idea in her head” that it was because he was told to do it by someone else and said that “idea in her head” came from Mr. Beasley. From her understanding, there was someone from jail giving orders. He was going to be compensated with money, but she did not know the amount. She was asked what she could say about why the person in jail wanted it done, and she replied that the person in jail had problems with the person that was murdered. She said she found that out from Mr. Beasley. She said she had a recollection of learning that from him.

[37] Ms. Murray was asked by the Crown whether there was a time when Mr. Beasley was less stressed or worried than after he received the phone call. Ms. Murray said she remembered there being a sense of release once there was confirmation that both people were dead.

[38] Ms. Murray told the Crown that she felt bad about having to be there and she did not want to be there. She said she was being forced to speak.

[39] In cross-examination, Ms. Murray agreed she had been forced to participate with the police throughout the entire process. She was asked about her drug use, and said she smoked weed. She agreed she did not remember a lot of the events and said that over the last year or so her memories of the last few years had been pretty much wiped. She explained that she had been through a lot of trauma and had just been diagnosed with PTSD. She had been through a lot, and she said it had wiped her brain. She agreed her memory was not what she would like it to be.

[40] Ms. Murray was asked if she looked into the murders further when she learned that Mr. Beasley was the target of the police investigation. She said she definitely did not look up any news source about the murders. She said the first she learned that Mr. Beasley was tied to the murders was when the police came to speak with her for the first time.

[41] Ms. Murray was asked about her arrest and being charged with obstruct justice. She said police arrested her at the Yorkdale Mall in Toronto and brought her to a little room where they slammed her on the wall. She said it felt like they almost broke her arm. She was then taken to Kingston. She agreed that during the ride her fear was rising. She was also horrified to have been charged with a criminal offence. Ms. Murray was asked if she remembered being threatened that if she did not answer questions, she would be going to a police cell. She said she did not remember the exact words, but she was threatened a few times with things like that. She said she felt under pressure to answer the questions police were asking her. She agreed she felt she could talk her way out of the charge, and that if she told police sufficient information that perhaps the charge wouldn’t stick. During the interview she was also cold, and agreed she was likely hungry since it had been a long day.

[42] Ms. Murray said that during the police interview after her arrest, she knew police wanted her to give them information about Mr. Beasley about the murders. She agreed she felt that if she gave them information, they’d probably let her go. She said she felt like she was trying to bring up more information than was “actually there”, not to get out of it, but because she felt stuck. She felt like she needed to say something because she was listening to her phone being tapped for months and police had her on the recording, so she felt like she had to say something. Ms. Murray said that at the time of the preliminary inquiry, she did not have an independent recollection of that conversation, and all that she had was in the transcripts. She also said there were bits and parts that came through, that she remembered more of what happened outside, but for the most part it was a blur.

[43] Ms. Murray agreed it was a fair suggestion that her conversation with Mr. Beasley did not happen in the way she told police. However, she said she did not recall Mr. Beasley talking to her about two of his friends being murdered in Kingston. She was asked if it was possible that she had a conversation with Mr. Beasley when he said two of his friends were shot in Kingston, and she replied that she did not remember, and that he did not tell her that two of his friends were shot in Kingston. When asked if that was possible, she said she honestly did not think so.

[44] Ms. Murray was asked about her police statement of September 16th, 2022, in cross-examination as well. She agreed that the suggestion to her at the beginning of that interview by Det. Fisher that she knew better than most about the fact that it was a criminal offence to lie to police had a threatening undertone. She said everything police said had that undertone. Ms. Murray agreed that she was being required to stay in line during that interview. She agreed that at the time, she had no independent recollection of the things she was telling police about Mr. Beasley. She agreed that if she did not remember the events correctly in August, it did not help her to reread an inaccurate statement. It was suggested to Ms. Murray, and she agreed, that the things she recounted to police about her conversations with Mr. Beasley were only said because she felt under pressure to give information to the police. She agreed it was possible she had not recounted that conversation accurately.

[45] Ms. Murray testified that the charge against her had been dropped a few weeks before she testified at the preliminary inquiry. She said the charge had not been a huge stress, but she was relieved the charge was dropped because the court appearances were taking a long time, and it was tedious and annoying.

[46] At the conclusion of her evidence by zoom, after she was told by the judge that she was free to go, Ms. Murray said “good luck Gregory, I love you”.

Ms. Murray’s Trial Testimony

[47] Ms. Murray’s evidence at trial was to the effect that she recalled a conversation with the accused at the Admiral Inn where the accused told her there was a murder and one person was still alive. Mr. Beasley was upset during the conversation. She said he was stressed that a person was still alive.

[48] As for the details of that conversation which she had provided to police in her recorded statements, for the most part, Ms. Murray said she no longer had any recollection of them. She said her memory of what the accused told her was a blur and she remembered only certain parts, as well as her feeling of being ill, and not wanting to know more. She agreed with defence counsel during cross-examination that during her first police statement after her arrest in August, 2022, she gave information to the police in order to get out of her own charge. She agreed that she had reconstructed a memory that she did not actually have, and it was possible the accused had received a call saying a friend was shot, and another had passed away, and this was why he was upset.

The Legal Principles

[49] Hearsay evidence is presumptively inadmissible. Under the principled exception to the hearsay rule, hearsay evidence may be admitted where it is shown to be both necessary and reliable on a balance of probabilities. Even so, proposed hearsay evidence which meets these criteria may be excluded because its probative value is outweighed by its prejudicial effect.

[50] The necessity and reliability factors are “refined and adapted” where, as here, the issue is the admissibility of a witness’s prior inconsistent statement: R. v. K.G.B. at p. 783.

Reliability

[51] In respect of “reliability”, in the context of an application to admit a prior inconsistent statement of a witness, Lamer J. said this at pp. 786-87:

The reliability of prior inconsistent statements is clearly a key concern for law reformers and courts which have reformed the orthodox rule, and, as I have outlined, this concern is centred on the hearsay dangers: the absence of an oath, presence, and contemporaneous cross-examination. The reliability concern is sharpened in the case of prior inconsistent statements because the trier of fact is asked to choose between two statements from the same witness, as opposed to other forms of hearsay in which only one account from the declarant is tendered. …

In my opinion, … only the first two of these dangers present real concerns in this context, and if these two dangers are addressed, a sufficient degree of reliability has been established to allow the trier of fact to weigh the statement against evidence tendered at the trial by the same witness. [emphasis added]

[52] The first hearsay danger, the absence of an oath, may be overcome by other circumstances which serve to “impress upon the witness the importance of telling the truth”: K.G.B. at p. 792.

[53] As for the dangers relating to “presence”, when a witness’s statement is videotaped, “the trier can assess the relationship between the interviewer and the witness to observe the extent to which the testimony of the witness is the product of the investigator’s questioning”: K.G.B. at p. 792. In noting that the police might not resort to videotaping all witness statements, the court at p. 793 observed that “crucial” and “unstable” witnesses might be taken to police facilities where it was possible to videotape their statements, or, “where the statements have already been made, to repeat them in a form which may be substantively admissible should the witness recant”. The court in K.G.B. was thus very much alive to the issues presented by “unstable” witnesses who might be more likely to recant for various reasons and approved of the subsequent repetition of a statement on videotape to support its admissibility.

[54] Ultimately, Lamer J. concluded at pp. 795-96 that the reliability requirement would be satisfied where (i) the statement was made under oath or solemn affirmation following a warning as to the existence of sanctions and the significance of the oath or affirmation, (ii) the statement is videotaped in its entirety, and (iii) the opposing party has a full opportunity to cross-examine the statement. Alternatively, Lamer J. held that “other circumstances” could provide adequate assurances of reliability in place of those which the hearsay rule traditionally requires.

[55] This will occur when substantive reliability is established because the hearsay statement is inherently trustworthy. To determine whether the statement is inherently trustworthy, a trial judge considers the circumstances in which the statement was made and any evidence that corroborates or conflicts with the statement: Bradshaw, at para. 30. The standard for substantive reliability is high: the judge must be satisfied that the statement is so reliable that contemporaneous cross-examination on it would add little if anything to the process: Khelawon, at paras. 49, 62, 107; Bradshaw, at para. 31.

[56] However, as explained by Charon J. in Khelawon at para. 76, where reliability is said to rest on procedural reliability in a case with a recanting witness,

[t]he most important contextual factor in B.(K.G.) is the availability of the declarant. Unlike the situation in Khan or Smith, the trier of fact is in a much better position to assess the reliability of the evidence because the declarant is available to be cross-examined on his or her prior inconsistent statement. The admissibility inquiry into threshold reliability, therefore, is not so focussed on the question whether there is reason to believe the statement is true, as it is on the question whether the trier of fact will be in a position to rationally evaluate the evidence. The search is for adequate substitutes for the process that would have been available had the evidence been presented in the usual way, namely through the witness, under oath or affirmation, and subject to the scrutiny of contemporaneous cross-examination. [emphasis added]

[57] Notably, procedural and substantive reliability are not mutually exclusive. They may work in tandem: Bradshaw, at para. 32.

Necessity

[58] As for the necessity criterion, it “must be given a flexible definition, capable of encompassing diverse situations”: K.G.B. at p. 796.

[59] In R. v. Rowe, 2021 ONCA 684, Fairburn J.A. distilled the essence of this criterion when she wrote that “necessity is measured by availability”. She continued to explain the criterion as follows at para. 42:

Sometimes a hearsay statement becomes unavailable because a witness goes missing, dies, or is otherwise unavailable to testify. And sometimes a statement becomes unavailable because a witness is present and available to testify, but refuses to do so or, as in this case, recants the earlier statement. In the case of a recantation, the “recanting witness hold the prior statement, and thus the relevant evidence, “hostage”: R. v. B.(K.G.), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, at p. 799 S.C.R. In these circumstances, necessity arises from the unavailability of the testimony that would otherwise reflect the content of the prior relevant statement: Khelawon, at para. 78.

The Residual Discretion

[60] The court in K.G.B. allowed for the possibility that even where a statement had sufficient substitutes for the court process, a trial judge might exercise her residual discretion to refuse to allow the jury to make substantive use of the statements. It explained the reason for this discretion this way at p. 801:

Prior statements share many characteristics with confessions, especially where police investigators are involved. Proponents of the orthodox rule voice the concern that malign influences on the witness by police may precede the making of the statement and shape its content, in the same way that confessions may be suspect if coerced by police investigators. That is, it still may be the case that the oath and videotape, and the acknowledgement of the warning, were made under circumstances that make them suspect. For this reason, the test developed by this Court for the admission of confessions is well-suited to making a threshold determination of whether the circumstances under which the statement was made undermine the veracity of the indicia of reliability.

[61] Accordingly, on the voir dire into admissibility, the trial judge must satisfy herself that the statement was not the product of coercion in any form, including threats, promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigative misconduct: K.G.B. at p. 802. It must be made voluntarily if to a person in authority, and there must not be other factors which would tend to bring the administration of justice into disrepute if the statement was admitted as substantive evidence: K.G.B. at p. 803.

Analysis

[62] I begin with an assessment of the issues of necessity and reliability, before turning to the analysis relating to my residual discretion to exclude the proposed evidence.

Necessity

[63] I find that the Crown has proved the issue of necessity. I reject the argument of the defence that necessity is not made out because the witness has not recanted her prior statements. However one characterizes the difference between Ms. Murray’s trial testimony and her prior recorded statements, the result is that the contents of her prior statements regarding the admissions made by the accused are not “available” for the jury to consider for their truth.

[64] My finding that the criterion of necessity has been proved by the Crown requires consideration of the law relating to what it means to “adopt” a prior statement. In order for a witness to adopt a prior statement, they must agree “based upon present memory, that the statement is true”. Further, “[o]nly where that prior statement is adopted, does it become part of the witness’ evidence at trial, available to the trier of fact for the truth of its contents”: R. v. Medford, 2021 ONCA 27 at para. 23.

[65] The Crown argues that there can be no argument that Ms. Murray adopted any material parts of her statements to police. While she has adopted peripheral points, she was not adopted critical points and now says she has no present memory of the events. I agree. Ms. Murray did not adopt material aspects of her videotaped statements during her evidence, including that: the accused told her he killed people, or someone; that the killing was ordered from jail; and that he was supposed to be paid for the killing.

[66] At the close of cross-examination of the witness on her statements, the Crown is not in a position to say to the jury that the accused told Ms. Murray he had killed someone (and why he did so) and to rely on that evidence for its truth. All that the Crown can say based on Ms. Murray’s evidence is that she had a conversation with Mr. Beasley about a murder, which she no longer fully recalls. The difference between these two scenarios is clear. The effect of Ms. Murray’s claim that she no longer has a memory of what the accused told her is that she is holding the relevant evidence “hostage”. The accused’s admissions that he was the killer are not available to the jury for its consideration. Nor can the Crown advance to the jury that Ms. Murray adopted other important parts of her statements to police.

[67] In these circumstances, it is clear that several material aspects of Ms. Murray’s statements are “unavailable” to the jury to be considered for their truth. I find the Crown has proved the criterion of necessity.

Procedural Reliability

[68] I am satisfied that the Crown has proved the reliability of each of Ms. Murray’s videotaped statements based on the markers of procedural reliability that are present in this case.

Opportunity to Cross-Examine

[69] The importance of the opportunity to cross-examine the declarant as a means of overcoming the dangers of admitting hearsay has been emphasized consistently in the jurisprudence as the most important factor in assessing procedural reliability: see Rowe at para. 53, citing R. v. Couture, 2007 SCC 28. In Rowe, for instance, the court noted at para. 53 that Bradshaw held at para. 28 that “Some safeguards imposed at trial, such as cross-examination of a recanting witness before the trier of fact, may provide a satisfactory basis for testing the evidence” (emphasis added).

[70] In this case, the witness is available for cross-examination. Further, I am satisfied that she can be meaningfully and effectively cross-examined. I arrive at this conclusion because the witness was fully and effectively cross-examined on her videotaped statements and on her evidence as a whole during the preliminary inquiry. During her evidence in that hearing, which will also be before the jury for reasons of fairness (an issue I will address further later in these reasons), Ms. Murray readily agreed with defence suggestions about various issues. She was far from a non-responsive witness who renders effective cross-examination on her evidence impossible. Meaningful cross-examination at trial remains possible for the defence: R. v. Taylor, 2015 ONCA 448 at para. 74; R. v. Zaba, 2016 ONCA 167 at paras. 15-16.

[71] Further, as noted in Rowe, where the defence argued that the witness’s lack of memory rendered cross-examination ineffective, “[the witness] had a memory of that day, it just did not accord with her police statement. The juxtaposition was significant”: at para. 55. Ms. Murray’s evidence at trial is not that she has no memory whatsoever of the things the accused said to her or the circumstances in which he said them – it is to the effect that she has forgotten certain parts. Coincidentally, the parts she has forgotten are those that are the most incriminating to the accused. In all the circumstances, I am not concerned that Ms. Murray is a witness who cannot be effectively cross-examined, and that it would be unfair to the accused to admit her prior statements for that reason.

The Statements Are Recorded

[72] It is well accepted that video recording a statement may serve as an adequate substitute for testing the truth and accuracy of the evidence. Both of the statements at issue in this case were video recorded. There is no doubt that a videotape “adds a dimension that is truly valuable to the triers in their assessment of reliability” (R. v. Trieu at para. 76 per Moldaver J.A. (as he then was)).

[73] I find the video recordings of Ms. Murray’s police statements in this case permit a meaningful assessment of what was said, how the statement was given by the witness, her condition at the time, and the manner of questioning which produced the statements. The fact that each statement is recorded and permits an assessment of the issues I have identified means that there are similar tools for assessing the truth and accuracy of the statement as there are when evidence is given by a witness in a court proceeding.

Oath or Warning About the Consequences of Not Telling the Truth

[74] An important procedural marker of reliability may be whether a statement was given under oath, or after the declarant was warned about the consequences of not telling the truth (such as the potential for criminal charges). Ms. Murray’s statement of September 16, 2022, was given under oath and following a warning about the consequences of not telling the truth. With the August 25, 2022, statement, this did not occur.

[75] In considering whether the August 25, 2022, statement has other features which overcome this deficiency, I also consider that the presence or absence of an oath or warning about the consequences of not telling the truth has been found to be less important than other markers of reliability. For instance, in Trieu, Moldaver J.A. (as he then was) held that where a video statement is made and the witness is available for cross-examination at trial, “the oath has very little burden to shoulder in the threshold reliability assessment”: at para. 78. See also Rowe at paras. 56-59.

[76] More recently, in Taylor, Watt J.A. held:

Under the B. (K.G.) regimen, an oath is not an absolute requirement for a finding of reliability: B. (K.G.), at p. 792. Other circumstances may be sufficient to impress upon the declarant/witness the importance of telling the truth: B. (K.G.), at pp. 792 and 796. Evidence from which it can reasonably be inferred that, when the statement was made, the declarant appreciated the solemnity of the occasion and the importance of telling the truth may serve as a proxy for an oath: R. v. Trieu; and R. v. Adjei, 2013 ONCA 512, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 74, at para. 39.

[77] In this case, I find that the absence of an oath prior to the statement being given is of minimal impact on the procedural reliability of the statement. Other circumstances existed which satisfy me that the complainant would have understood the importance of telling the truth. For instance, Ms. Murray was under arrest for obstructing justice, having been arrested just hours before her videotaped statement was taken. She had also expressed serious concerns about the implications of lying to police during her conversations with the accused captured by the police intercepts.

[78] In all the circumstances, I have no doubt that Ms. Murray well understood the importance of the occasion and of telling the truth. The absence of an oath or caution about the implications of lying to police are not of much significance to the procedural reliability of the recorded statement: Rowe at para. 57.

[79] In any event, any deficiencies on this front during the August statement were overcome by the September statement. This is because Ms. Murray was sworn prior to giving that statement, and she adopted the contents of the second half of her August statement when she started giving the police information about the accused. This is precisely what was envisioned in K.G.B. when the court suggested that “crucial” and “unstable” witnesses, a characterization which unquestionably applies to Ms. Murray, might be asked to repeat statements already made “in a form which may be substantively admissible should the witness recant”: p. 793.

[80] In respect of the September statement, then, I am satisfied that it was under oath and following a warning to the witness of the consequences of not telling the truth. In respect of the August statement, I am satisfied it was given in circumstances that demonstrate the witness understood the importance of telling the truth and the consequences for not doing so. That this statement was subsequently repeated under oath and following a further warning about the consequences of not telling the truth further enhances this marker of reliability.

Conclusion on Procedural Reliability

[81] In the result, I find that these substitutes function effectively to replace the usual measures used in court room proceedings to promote the truth-finding process. The video recorded statements by Ms. Murray meet the standard of threshold reliability given the overwhelming markers of procedural reliability.

Substantive Reliability

[82] Given my conclusion that the Crown has met its burden of demonstrating the procedural reliability of the hearsay statements, I need not consider whether the statement is also substantively reliable since either route may establish the threshold reliability of a hearsay statement. Because it is not necessary to do so, I decline to engage in the analysis of substantive reliability.

Probative v. Prejudicial Analysis

[83] Notwithstanding the able argument of Mr. McDonald, I conclude that the statements are highly probative of the issues at trial and that their probative value far exceeds any prejudicial effect they may have.

[84] While I have considered the arguments of the defence in support of its position that I should use my residual discretion and exclude the statements, I reject those arguments.

[85] With respect to the voluntariness of Ms. Murray’s August post-arrest statement to police, I am satisfied it was voluntarily given. This is important because, as first held in K.G.B., and discussed in R. v. Mullings, 2014 ONCA 895 at paras. 35-37, if a trial judge has a real concern that a witness’s statement was the product of police coercion and the witness simply told the police “what the police wanted to hear”, this could undermine the “veracity of the indicia of reliability” and render the proposed statement inadmissible. In Mullings, the court held that K.G.B did not lay down a “hard and fast rule” that the statement must be rejected, however.

[86] In response to the argument by the defence, the Crown submits that the police did nothing to taint Ms. Murray’s evidence. It says that any pressure Ms. Murray was feeling was not applied by police - it was the result of Ms. Murray’s circumstances and her clear reluctance (demonstrated during wiretapped conversations to the accused preceding her arrest) to lie to the police. I agree that the record of the statements refutes any defence argument that the statements were tainted by police. I find that the pressures upon Ms. Murray at the time of the statement were the product of her circumstances, not the inappropriate conduct of police.

[87] To the extent that the officer in the August statement told Ms. Murray about aspects of the crime (e.g. that the accused had shot two men in the head), she did not parrot those statements back to police. Ms. Murray is clear throughout the statement that she was not given any details about the shooting. She does not merely repeat things said by police. She also provides details about what the accused told her that were not suggested to her.

[88] The voluntariness of Ms. Murray’s August statement is also enhanced by the fact that she spoke with counsel prior to the statement and other aspects of the statement. Ms. Murray acknowledged speaking with counsel and that she was satisfied with the advice she received. She confirmed she understood the police caution to the effect that nothing any police officer had done should influence her in making any statement. She was reminded that when police first approached her, they cautioned her about lying to the police, and she replied “well, I’ve never lied, so I’m good” (p. 4 of the transcript). She showed during the statement that she clearly understood the legal advice she had been given by counsel since she repeatedly told police she had “nothing to say”. She told police, “I’m not saying anything, that’s what I’m going to say, this whole night”, and suggested police could blame the lawyer she spoke to.

[89] As for the September statement, Ms. Murray acknowledged it was voluntarily given by her at its outset. During the statement she appears relaxed and alert. I have no reason to reject her assertion given at the time of the statement that she was giving it voluntarily.

[90] I am fully satisfied on a balance of probabilities that both of Ms. Murray’s police statements were voluntary. Given the totality of the evidence, I have no doubt that on each occasion she provided a statement, Ms. Murray understood that she was giving the statement to a police officer who could use it to her detriment in court in respect of the charge she faced. I also have no doubt that she understood the statements she made could be used against Mr. Beasley in a murder prosecution. She had an operating mind. I have no doubt that in giving each statement, Ms. Murray’s will was not overborne by police tactics, oppressive circumstances created by the police, or any threats or inducements.

[91] In any event, to the extent that the defence argues that the statements were tainted by the conduct of the police in providing her with details about the case, this argument may be made by the jury who will assess the ultimate reliability of her evidence. The jury may yet give effect to this argument should they be persuaded by it.

[92] I also see no reason to apply any higher burden of proof than on a balance of probabilities in respect of the finding that Ms. Murray’s statements were voluntary. The admissions by the accused reported in Ms. Murray’s videotaped statements were not made to a person in authority – there is no debate that Ms. Murray did not occupy such a position when she was speaking with the accused: see K.G.B. at p. 800; R. v. Chan, [2004] O.J. No. 1495 (CA) at paras. 5-7.

[93] I should also be clear that I am satisfied that the statements made by the accused to Ms. Murray are admissible (as per R. v. Evans at paras. 24 and 32). Ms. Murray’s statements contain statements made by the accused which are admissions against interest and, consequently, their admission is not barred by the hearsay rule. Given Ms. Murray’s account of what the accused told her, it is also plain that the Crown has established on a balance of probabilities that the statements are those of the accused. There is no ambiguity on this front. In short, Ms. Murray’s account of her discussions with the accused in her videotaped statements would have been admissible if she had given them in her testimony: K.G.B. at p. 785.

[94] I am also satisfied that the statements Ms. Murray describes the accused making to her are far more than a fragment. These are not utterances without context whose meaning cannot reasonably be ascertained. The statements in this case, and their circumstances, bear no similarity to the circumstances in R. v. Ferris or R. v. Shneider, [2022] SCC 34. I reject the defence argument that allowing the statements in makes the evidence “a dog’s breakfast” and unduly confusing.

[95] Nor do I agree with the suggestion that Ms. Murray’s evidence in her recorded statements is inflammatory. While Ms. Murray’s videotaped statements are not favorable to the accused’s position, they are in no way inflammatory. Ms. Murray does not denigrate the accused in any way, she does not raise other issues about his character, and she is careful to delineate what she can and cannot remember about what he told her.

[96] As for the probative value of the videotaped statements, it is at highest end of the scale in this case, where the central issue at trial is the identity of the killer. Ms. Murray’s videotaped statements provide an account of the accused saying he was the killer, and why he committed the offences. It is difficult to conceive of more probative evidence.

[97] On the other hand, there is no prejudice in admitting the evidence within the meaning of this term in Canadian law. It is trite law that prejudice is caused by evidence that operates unfairly, not unfavourably to the accused. In this instance, the admission of the statements might be unfortunate for the accused, but it is not unfair.

[98] As for the time that will be devoted to the evidence of Ms. Murray and the suggestion by the defence that this will unfairly distort the trial process in a way that prejudices the accused, I do not agree. While the Crown has been thorough in its examination of the witness to this point, and other interruptions to the schedule (including for argument and voir dires relating to the cross-examination of the witness under s. 9(2) of the CEA, and the argument related to this application) have meant that the witness will have testified over a number of days, the time spent on the witness’s evidence is not so disproportionate to the contested issues in the trial that it has impacted trial fairness. This is not a basis to exclude otherwise admissible evidence.

[99] As for the argument that admitting the statements will be confusing in any way having regard to the instructions to the jury that will be required, as noted by Fairburn J.A. in Rowe, “[w]hile there is a significant legal difference between the instruction that the jury received, arising from the s. 9(2) cross-examination, and the instruction that the jury would have had to have received if the statement had gone the final distance and been admitted for the truth of its contents, there is little difference in the degree of complexity between those instructions. Both are well within the grasp of 12 intelligent members of the community to understand”. In other words, admitting the statements does not give rise to additional confusion on this front.

[100] In the end, I am satisfied that the jury will be in a position to fully evaluate the statements alongside all other evidence in the case. I have full confidence that counsel will make fulsome and effective submissions about the ultimate reliability of the evidence, and that the jury will be in a position to rationally evaluate Ms. Murray’s evidence at trial and her prior recorded statements. On the other hand, to exclude the proposed evidence would impair the trial’s truth-seeking function.

Conclusion

[101] For these reasons, the videotaped statements given by Ms. Murray are admissible in evidence for their truth. The ultimate reliability of the statement remains to be assessed by the jury.

[102] At the request of the defence, I also admit the preliminary inquiry evidence given by Ms. Murray. This is a matter of fairness. The admission of Ms. Murray’s preliminary hearing evidence is not opposed by the Crown. Providing the jury with Ms. Murray’s preliminary inquiry evidence, in addition to her videotaped statements, will ensure that the jury has all the information possible available to it in evaluating the evidence of this witness, including statements she made under oath which are favourable to the accused.

[103] For these reasons, Ms. Murray’s videotaped statements of August 25, 2022, and September 16, 2022, are admitted for their truth, as is her preliminary hearing evidence of December 7, 2023.

Laurie Lacelle

Ruling given orally: April 7, 2025
Reasons released in writing: June 19, 2025