Court File and Parties

Court File No.: CR-23-00000107-0000
Date: 2025-03-10
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Gregory Anthony Beasley (Respondent)

Appearances:

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

Heard: February 18 and 19, 2025
Judge: Laurie Lacelle

Reasons for Decision

(Voluntariness voir dire)

Introduction

[1] The accused, Gregory Beasley, is charged with two counts of first-degree murder. On October 16, 2021, he is alleged to have shot two men, Nico Soubliere and Carl Delphin, in a secluded parking lot in Kingston. The Crown’s theory is that this was an execution ordered from jail.

[2] There were no witnesses to these events and the investigation took a number of months to unfold. It included wiretap evidence and cell phone analysis. The accused was ultimately arrested in Toronto in August of 2022. He was interviewed by police following that arrest. The Crown seeks a ruling that the statement of the accused is voluntary and admissible at his trial.

[3] Following the hearing to determine the admissibility of the statement, and prior to the commencement of the trial, the parties were advised that I had determined that the Crown had proved the voluntariness of the statement beyond a reasonable doubt. The statement is accordingly admissible at the accused’s trial. These are my reasons for that ruling.

The Legal Principles

[4] The legal principles are well settled, and I have applied the law as it is set out in R. v. Oickle, 2000 SCC 38, R. v. Singh, 2007 SCC 48 and other cases.

[5] It is worth emphasizing certain principles in the context of this ruling, and in particular that:

a. The voluntariness of a statement made to a person in authority must be proved by the Crown beyond a reasonable doubt;

b. The voluntariness rule has twin goals of protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes. In applying these rules, courts (and others involved in the administration of justice) must never lose sight of either of these objectives: Oickle at para. 33;

c. The court must consider various issues, including but not limited to whether there were any threats or inducements made, whether the statement was given in an atmosphere of oppression, whether the accused had an operating mind, and whether there has been any police trickery;

d. While threats or promises, oppression and the operating mind doctrine are to be considered together and should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule, the use of “police trickery” to obtain a confession is a distinct inquiry given its more specific objective in maintaining the integrity of the criminal justice system: Oickle at paras. 63 and 65; R. v. Spencer, 2007 SCC 11, para 12;

e. Confronting a suspect with adverse evidence – even exaggerating its accuracy and reliability – will not, standing alone, render a confession involuntary: Oickle at para. 100;

f. Inducements become improper only when standing alone or in combination with other factors, they are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne: Oickle at para. 57; Spencer at para. 13. While a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement: Spencer at para. 15;

g. The operating mind doctrine requires the Crown to show that the accused possessed the limited cognitive ability to understand what they were saying and to comprehend that the statement might be used as evidence in criminal proceedings: R. v. Tessier, 2022 SCC 35, para 8; Whittle at para. 37. The Crown must show that the accused was capable of making a meaningful choice to speak to the police and that the choice was not improperly influenced by state action: Tessier at para. 51;

h. The Crown bears the onus of establishing a sufficient record of the interaction between the police and the accused. Where the accused is in custody and recording facilities are readily available, the failure to record interactions with the accused inevitably makes those interactions suspect: R. v. Moore-McFarlane;

i. At the same time, it is not the law that the police must audio and/or video record all of their interactions with detainees: R. v. Williams, 2021 ONSC 5497;

j. The voluntariness test is an objective one. However, it is sensitive to the individual particularities of the individual suspect and its application will by necessity be contextual: Oickle at paras. 42 and 47; Spencer at para. 13; Singh at para. 36;

k. The focus of a voluntariness inquiry is “on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will”: Tessier at para. 11, citing Singh at para. 36.

Overview of the Evidence on the Voir Dire

[6] Three officers testified on the voir dire about their dealings with the accused – Constable MacNeish and Detective Smith about the accused’s arrest, transport and booking, and Detective Fisher about the accused’s arrest and the statement taken by audio and video. The accused did not testify.

[7] The officers testified that the accused was arrested on August 17, 2022, at about 6:15 a.m. in an apartment in Toronto. Upon arrest by Detective Fisher, the accused was told he was under arrest for two counts of first-degree murder. He was given his rights to counsel and cautioned.

[8] The accused’s girlfriend (sometimes referred to as his wife), was also present at the time of the arrest, as was her mother. The officers’ testimony was consistent that the accused was responsive to their directions. At the apartment, the accused asked questions about his girlfriend and her arrest and potential charges. He took responsibility for a handgun and drugs located in the apartment that might otherwise have been attributed to his girlfriend.

[9] Officers MacNeish and Smith were consistent in their evidence that during their dealings with the accused at the scene of his arrest, there was no indication that the accused was under the influence of any substance, though they acknowledged that they were not keenly observing the accused for symptoms of impairment. Detective Fisher observed his speech to be normal and consistent with previous dealings with him. He noted that the accused had no problem getting dressed, even while handcuffed, and his balance and coordination seemed normal. While they were in close quarters in the apartment, the accused leaned into the recording device the officer was wearing to say the gun in the apartment was his. Detective Fisher observed no smell of alcohol on his breath.

[10] The accused was transported to Kingston by Constable MacNeish, while the accused’s girlfriend was transported in a separate vehicle by Detective Smith. Constable MacNeish gave the accused the secondary caution while in the cruiser. The accused acknowledged he understood. The officers coordinated a stop in Port Hope so that the accused’s handcuffs could be adjusted to make him more comfortable. During the drive, Constable MacNeish did not notice any odour of substance consumption. He refrained from any conversation with the accused.

[11] Once at the detachment in Kingston at 9:02 a.m., the accused went through the booking procedure. This was videotaped. During the booking procedure, the accused was cautioned again, and given an opportunity to speak with his counsel, Mr. Willshick. He did so between 9:20 a.m. and 9:29 a.m.

[12] Detective Smith was present during the booking process, as was Constable MacNeish. Detective Smith testified that she observed no indicia of impairment by the accused. She had listened to him on wiretaps as part of the investigation and found nothing remarkable about his speech while he was in booking. She had also heard him on the wiretaps after he had used drugs (marijuana and occasionally cocaine) and had been able to observe changes in his demeanour when he was on drugs. During her interactions with him on this date, she said he did not appear intoxicated. He seemed to walk normally, though he has a bit of a limp. She observed no odour of alcohol. He responded appropriately to questions and to direction from police. Unlike in the apartment, at the police station, Detective Smith was keenly observing the accused given that he was in custody and in booking. She testified there was nothing out of the ordinary in his demeanour on arrest or during the booking process.

[13] Constable McNeish gave similar evidence. He testified that the accused’s speech was slow and tired, but it was similar to how he sounded on the wires. Constable MacNeish described the accused during the booking process as coherent and noted that he was articulate about his concerns for his girlfriend’s jeopardy. He observed no issues with the accused’s gait.

[14] During the booking process, the booking sergeant asked the accused about his consumption of substances the night before. The accused said he had consumed a bottle and a half of Hennessy, and the bottle size was 750 ml. The accused also said he had consumed two grams of cocaine. He confirmed that this was a normal amount of cocaine for him. He was asked if he was “sick right now with anything”. The accused answered that he had PTSD from being arrested but described no other issues with his current health.

[15] After the booking process, the accused was placed in a cell. At some point during the day, he was taken to the hospital. The medical records from that visit indicate that the accused presented as well nourished, alert, oriented, and in no obvious distress or discomfort. The accused was asked about his drug use, and he indicated he had consumed multiple substances in the past 48 hours. The accused reportedly denied chronic drug use and medical staff concluded it was less likely that he was in acute withdrawal. He was advised how substance abuse might have contributed to his abdominal symptoms. He was given acetaminophen and ibuprofen at about 3:20 p.m. and discharged later that afternoon.

[16] The accused was provided with two meals, both without pork as he had requested, while he was lodged in cells. There is no evidence about whether or not these meals were consumed by the accused, apart from his subsequent statements to Det. Fisher to the effect that he had not eaten in two days.

The Audio Recording Preceding the Videotaped Statement

[17] At 7:45 p.m., Detective Fisher escorted the accused to an interview room. This interaction is captured on an audio recorder. Detective Fisher reviewed the charges against the accused and his girlfriend. The accused was told he could speak with counsel again but did not request to do so. He said he knew what his lawyer would tell him.

[18] The accused told Detective Fisher as they made their way to the interview room that while Detective Fisher could tell him his theory of the case, the accused had nothing to say about it.

[19] Detective Fisher testified that throughout his dealings with the accused, he observed no indicia of impairment. Like Detective Smith, he was familiar with the accused’s speech given previous interactions with him and because he had listened to the wiretaps.

The Interview Room – Audio and Videotaped Statement

[20] In error, the video recording in the interview room did not start immediately upon the accused and Det. Fisher entering. The videotape starts at 8:01 p.m., and ends just over two hours later at 10:10 p.m. All the interaction between Det. Fisher and the accused in the interview room is captured by audio recording, however.

[21] During the interaction not captured on video, it appears that the accused notices there is a can of beer on the table. Detective Fisher says, “we don’t always do this, you can imagine”. The accused expresses surprise and makes reference to it being some kind of last supper. Detective Fisher tells the accused he has about “three of those, we’ve got more”, that he doesn’t have to drink it, and he can get him water if he wants. The accused says he doesn’t know the next time he will get a beer, and Detective Fisher says: “that’s what I’m saying. You’re here for a double murder, this is kind of different rules, this isn’t the shit, where we sit in a room, and nothing happens, I’m human, and I know a guy likes his beer”. He tells the accused he is not trying to get him drunk to get him to talk, and that it is one beer. Detective Fisher suggests to the accused that one beer probably “doesn’t do much to a guy like you”, and the accused agrees. Detective Fisher tells him he might as well enjoy it.

[22] As the interview begins, Detective Fisher outlined how police had been listening to the accused on intercepted phone calls. Detective Fisher asked him about the last time he saw Nico, the accused responded: “Joel can you go ahead and … I told you this is not a conversation; this is me listening to you”.

[23] Thereafter Detective Fisher told the accused about a number of aspects of the investigation and the evidence obtained. At times, the accused seeks information from Detective Fisher. He questions how Nico died. At times, he tells the officer to speak to his lawyer rather than answer a question. The accused denies the officer’s suggestion that he was the actual owner of the “Rucker phone” and that he used the alias “Sophi”. He challenged the officer about the fact that video of a car leaving the scene of the crime did not reveal the car’s license plate. It is after this part of the interview that the accused finishes his first beer and crushes the can. This is at about 8:33 p.m.

[24] The interview goes on. The accused is confronted with the fact that his DNA is on the victims’ car. He again seeks information about the manner of death. He discusses a prior investigation when Detective Fisher had interviewed him. He asks about his wife and he and the officer discuss what she knew about the gun found on his arrest. At one point, when discussing the trauma caused to his children who witnessed a prior arrest, Mr. Beasley becomes emotional. He is standing up by this point. He hits a wall, and then apologizes for doing that. He reiterates that he is not supposed to answer any questions when Det. Fisher asks him again about when he touched the victims’ car. Later, the accused debates the significance of the DNA evidence with Det. Fisher. The accused continues to stand and pace in the small interview room.

[25] At about this point, the accused is offered pizza, which he declines. He tells Detective Fisher that he has not been able to eat for two days. A bit later, Detective Fisher offers him another beer, and says he will have one with the accused. The accused says “sure”. At about 9:13 p.m., a second beer is provided to the accused. Detective Fisher also has a beer and opens the can. The accused opens his beer at 9:17 p.m.

[26] The interview continues from there in much the same way as before. At one point, the accused tells Detective Fisher about an altercation that he observed while he was with the victims on the day of the murder. He said he had bumped into the victims while he was in Kingston. He said they had an altercation with some other people, “these guys were all doing weird shit”, and so he left.

[27] At about 9:21 p.m., Det. Fisher is holding a pack of cigarettes in his hand. The accused asks “can I have one of those please”, and Det. Fisher gives him one. The officer takes a cigarette as well. The accused helps Det. Fisher light his cigarette at about 9:23 p.m. During this part of the interview, the accused denies killing Nico. He tells Det. Fisher that he does not know what happened and tells Det. Fisher he was not there when the victims were killed.

[28] At 9:48 p.m., the accused takes his last sips of the second beer and crushes the can. He denies knowing anything about a contract to kill Nico. He presses Detective Fisher as to the police theory, and whether they think he killed the victims or, whether they think he set them up.

[29] Toward the end of the interview, at about 10:06 p.m., the accused lies down on the floor as Detective Fisher is out of the interview room. Upon his return, Detective Fisher shows a photo to the accused, who is still on the floor. The accused denies knowing the person depicted. For the next few minutes of questioning, the accused continues to deny any involvement in the killing or knowing anything about a contract for the killing. The interview ends at 10:10 p.m.

Detective Fisher’s Evidence about the Use of Alcohol and Other Issues

[30] Detective Fisher testified that he decided to offer beer to the accused during the interview to facilitate rapport building. He and the accused had a prior history relating to an investigation that resulted in charges that were withdrawn by the Crown. Detective Fisher testified that based on “all factors” and his history with the accused, and since the accused had been in custody since 6:30 a.m. that morning, he would offer the accused light beer and pizza to overcome the hurdle that the accused might not otherwise be willing to talk to him. He thought the beer would signal that he was not treating the accused as a prisoner but as a human being. He said that the beer was “an extra method to break the ice”. He said he wanted to make the accused “want to sit in the room and have a conversation about this otherwise tough topic”.

[31] Detective Fisher was asked about this tactic given police policy regarding the use of alcohol on duty. He testified that he thought he was acting in the discharge of his duty. He said he was not trying to hide his use of alcohol.

[32] Detective Fisher testified that the beer given to the accused was Bud Light. It had a 4% alcohol concentration. He did not think it would affect the accused much given his size, which he estimated as 6 feet 3 or 4 inches tall, and 260 pounds. Detective Fisher did not believe consuming this beer would affect whether the accused had an operating mind.

[33] Detective Fisher testified that he offered the accused a cigarette for the same reason as he offered him a beer – this was a “rapport building thing”, akin to eating together.

[34] Detective Fisher agreed that generally speaking, alcohol lowers inhibitions. However, he disagreed that he gave the accused alcohol for that purpose. He also denied he was trying to give the accused “liquid courage”. He testified that he did not think that giving the accused one light beer an hour, while offering him food, equated to giving the accused “liquid courage”. He disagreed he was trying to loosen the accused up because in the prior investigation his interview with him had not been successful.

[35] He said that in telling the accused this interview was going to be different and they were not going to sit in a room where nothing happens (this is captured only on audio), he was referring to the fact that he had wiretap evidence this time. He agreed he made clear to the accused that he was not pleased with how the last investigation involving the accused had ended. He agreed that he was aware the accused had some animus towards him as a result of the prior investigation they were both involved in but did not agree that he was the officer the accused would least want to talk to. While another officer might have conducted the interview, as the lead investigator, Detective Fisher felt he was best placed to do it notwithstanding his history with the accused.

[36] At the time of the interview, Detective Fisher was aware that the accused had been involved with drugs and that he used drugs. He agreed it was possible the accused was a drug addict, though he said he didn’t know that he would label him as such. He agreed that he was aware the accused used illegal drugs, and it was possible that one of them was fentanyl. He also agreed that he was aware prior to the interview that the accused had not eaten and had consumed some drugs, but he was not aware of the specifics given to the booking sergeant. However, he later testified that he did not know if the accused had eaten or not, since there are set meal delivery times to people in custody, and he was not aware if the accused had eaten any of the meals provided to him. He disagreed with the suggestion that he might have caused the accused to have a medical emergency by giving him alcohol. Detective Fisher also disagreed that the accused might have been in withdrawal during the interview and said he would not know what that would look like for the accused.

[37] Detective Fisher was also aware that the accused had been taken to the emergency room earlier in the day because he had complained of a medical issue. Detective Fisher testified that he understood that the accused’s concern was not serious, and he was discharged and returned to the police station. Detective Fisher was unaware of any pain described by the accused at the hospital. He agreed that at least at the time he was testifying, he understood there was some possibility that the accused was on medication from the hospital when he interviewed him.

[38] As for the accused’s request for a blanket during the interview, Detective Fisher agreed the accused was not given a blanket during the interview. He disagreed that the room was cold.

[39] Detective Fisher testified that he brought the beer into the police station, but claimed he had no memory of when. He said he could not remember if it was the same day, or not. He said he did not try to hide his use of the beer but did not remember when he would have notified the sergeant. None of his superiors had authorized its use in the interview with the accused. When asked if his superiors were impressed with what he did, he said he did not remember one way or another. He agreed it was not usual practice to provide persons in interrogations with alcohol, and he had never done it before or since. He testified that he thought his tactic with the beer had accomplished the goal of making the accused comfortable to sit in the room with him.

The Positions of the Parties

The Defence

[40] The defence submits that the Crown has not proved the voluntariness of the statement beyond a reasonable doubt. It argues that Detective Fisher’s conduct in giving the accused alcohol was wrong and constitutes an oppressive circumstance that undermines the voluntariness of the statement.

[41] The defence asserts that the officer offered the accused alcohol because he wanted to diminish the accused’s inhibitions, and that in giving the accused alcohol, he created an environment where those inhibitions would be diminished. Giving him alcohol was even more problematic conduct because: 1) police were aware that the accused had not eaten, that he had been awake for a number of hours, and that he had taken drugs and alcohol recently; 2) they were aware he had been taken to hospital and received medication prior to the interview; 3) the accused expressed that he was cold and no effort was made to give him a blanket. In these circumstances, counsel argues giving him alcohol was very dangerous.

[42] In support of its position, counsel notes that the accused went into the interview saying he was going to listen to police, and by the end, he was talking. Counsel also notes that the accused was told this interview would be different than the last one he had done with Detective Fisher and argues that the difference was that the officer intended that the accused would not just sit in the room and say nothing. While the defence concedes that the accused did not show outward signs of impairment, and that the accused had an operating mind, counsel argues that the police conduct in this case in giving the accused alcohol should not be endorsed by the court. Counsel argues that police should not get an unfair advantage by using alcohol in an interrogation. Further, counsel submits that if the court has to analyze if the alcohol had an impact on the accused, “it is too late”.

The Crown

[43] The Crown submits it has proven the voluntariness of the statement beyond a reasonable doubt. It says that while the court may have misgivings about the use of alcohol during the interview, this did not render the interview’s circumstances “oppressive” within the meaning of the law. Nor were there any other circumstances that would suggest that statement was not voluntarily given.

[44] The Crown submits that the accused’s conduct during the interview demonstrates that he freely made a choice in giving his statement. He knew what he was saying, and that he could refuse to talk to police. Instead, he chose to engage with police in order to learn more about what evidence they had against him. He advanced a narrative that distanced himself from incriminating evidence. This was a tactical choice that demonstrates his operating mind.

[45] The Crown submits that the evidence does not support the defence theory that the availability and consumption of alcohol drove the accused to talk to the police. The Crown submits that there is, however, very strong evidence that it was the information provided to the accused by Detective Fisher about the investigation that motivated him to speak further as the interview progressed.

Analysis

[46] This is an unusual case in that neither party was able to find any other reported case where police had used alcohol in the course of an interview in a police station. Nor has the use of alcohol by police during an interrogation been discussed in any of the leading case law.

[47] In any event, my analysis turns on the application of the principles I have outlined above. In particular, it turns on whether the Crown has proved beyond a reasonable doubt that the statement was not compelled by oppressive circumstances created by the police.

[48] Before addressing that issue, I make other preliminary findings. First, I find that the accused was properly cautioned and had the opportunity to speak with counsel before the interview started. The accused was thus well equipped to decide whether to speak to police or not and to understand that anything he said could be used against him.

[49] Second, there were no threats, inducements or promises made to the accused at any time by the police. There was never anything approaching a quid pro quo or an implicit promise in exchange for giving the statement.

[50] Third, there was no police trickery employed in this interview. To the extent that alcohol was offered to the accused, there was no deception involved. A can of Bud Light was provided to him initially, and then again more than an hour later in the interview. Whether or not this was a good idea, certainly it was not a trick. The accused knew exactly what it was when he consumed it. He was also told he could have water if he preferred.

[51] Nor was there any other trickery in the interview. Detective Fisher laid out the police theory and some of the evidence in the investigation. None of it was fabricated. None of its impact was exaggerated.

[52] Fourth, I am satisfied that the Crown has led evidence about all meaningful contact with the accused. I find that nothing occurred off camera that undermined the voluntariness of the statement. I am satisfied that the fact that the video recording of the interview did not start as soon as the accused entered the interview room was the result of an innocent error. In any event, the entire interaction between the officer and the accused was captured by an audio recorder.

[53] There is also no debate that the accused had an operating mind. The defence concedes as much. As I have reviewed, and as recently confirmed in Tessier, all that is required to prove an operating mind is proof that the accused possessed the limited cognitive ability to understand what he was saying and to comprehend that the statement might be used as evidence in criminal proceedings.

[54] The fact that the accused was given alcohol, is, of course, relevant to this inquiry, since a person in a state of extreme intoxication may not meet the requirement of having an operating mind (see R. v. Maracle, 2015 ONSC 600, para 28). Here, there is no suggestion that the accused was so impaired as to lack an operating mind. This is an appropriate concession by the defence, since during the interview the accused shows no signs of impairment or that he was otherwise unable to understand that he was speaking to police who could use the statement to his detriment. To the contrary, the accused tells Det. Fisher he will not address certain topics and to speak to his lawyer, and thus demonstrates that he fully understood the nature of the process in which he was engaged. I am satisfied that the Crown has proved this element of the voluntariness test beyond a reasonable doubt.

Did the Police Create Oppressive Circumstances that Undermined the Voluntariness of the Statement?

[55] The only contentious issue in this analysis is whether the interview was conducted in oppressive circumstances. The defence argues that Detective Fisher’s conduct in providing alcohol to the accused produced oppressive circumstances, and the statement should be found involuntary on that basis.

[56] In defending against this argument, the Crown notes that none of the classic examples of oppressive circumstances set out in the case law are present here. The Crown says that while it is not clear whether the accused did eat, he was twice provided with meals during his time in police custody. He was taken to the hospital for medical attention. His comfort was addressed during the drive between the scene of his arrest in Toronto and the Kingston Police Force detachment when officers stopped in Port Hope to adjust his handcuffs. All of his dealings with police were respectful, as was shown in the booking video, and is reflected in the evidence of officers on the voir dire. The accused’s request for pork free meals was acknowledged by the booking Sergeant and given effect when meals were ordered for him.

The Meaning of “Oppressive Circumstances” in the Jurisprudence

[57] In considering the parties’ arguments, it is helpful to further consider what the cases have said about “oppressive circumstances”. The court in Oickle considered this issue at length in formulating the modern-day confessions rule.

[58] In Oickle, the court cited with approval the decision in R. v. Precourt to the effect that “questioning which is oppressive and calculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible”. In reviewing this rationale for the voluntariness rule, the court also considered academic commentary about circumstances that lead to false confessions. It noted at para. 38 the concern that

stress-compliant confessions occur “when the aversive interpersonal pressures of interrogation become so intolerable that [suspects] comply in order to terminate questioning”. They are elicited by “exceptionally strong use of the aversive stressors typically present in interrogations”, and are “given knowingly in order to escape the punishing experience of interrogation” … Another important factor is confronting the suspect with fabricated evidence in order to convince him that protestations of innocence are futile …

[59] The Oickle court accepted that “oppression clearly has the potential to produce false confessions” (at para. 58). It remarked that “[i]f the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession to escape those conditions. Alternately, oppressive circumstances could overbear the suspect’s will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession”.

[60] Ultimately, the court in Oickle noted at para. 60 that “under inhumane conditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions”, and such a confession is not voluntary [emphasis added]. The court provided the guidance that certain factors can create an atmosphere of oppression. It held that the following non-exhaustive list of factors can create an atmosphere of oppression: depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time.

[61] The Oickle court further held at para. 61 that “a final possible source of oppressive conditions is the police use of non-existent evidence”, since the use of false evidence is often crucial in convincing the suspect that protestations of innocence are futile. While standing alone, confronting a suspect with inadmissible or fabricated evidence is not necessarily grounds for excluding the statement, when combined with other factors, it is a relevant consideration in determining whether a statement is voluntary.

[62] More recently in R. v. Fernandes, 2016 ONCA 704, para 36, the court emphasized that the oppressive conditions must be caused or created by the state. It noted at para. 36 that “the concern underlying this part of the rule is that state agents may abuse their authority over an accused to effectively negate the accused’s ability to make an independent decision to speak to the authorities”.

[63] I conclude from these cases and others that oppressive conditions may be present where there are circumstances involving inhumane treatment of the accused, or where the interrogation is conducted in such a way as to convince the accused that protestations of innocence are futile, such as may occur with the use of non-existent evidence.

Police Conduct that Shocks the Community

[64] The position of the defence is that the accused’s statement should be excluded because the use of alcohol during the interview is so offensive a tactic as to warrant it. While the defence frames its analysis under the “oppressive circumstances” branch of the voluntariness analysis, in some ways, its argument is based on the law that relates to another branch of the analysis, “police trickery”.

[65] In considering whether police trickery has undermined the voluntariness of a statement, the court must consider whether any trickery used would shock the conscience of the community. In Oickle, the court explained that “the confessions rule also extends to protect a broader conception of voluntariness that focuses on the protection of the accused’s rights and fairness in the criminal process. Police trickery that unfairly denies the accused’s right to silence will also, therefore, render a statement inadmissible.” The court held that there may be situations in which police trickery, “though neither violating the right to silence or undermining the voluntariness per se, is so appalling as to shock the community”: at para. 67. Famously, the court gave the examples of a police officer pretending to be a chaplain or legal aid lawyer, or injecting truth serum into a diabetic under the pretense that it was insulin, as examples of what might “shock the community”: at para. 66.

[66] The defence invites me to exclude the accused’s statement in order to sanction the police for their conduct in giving him alcohol. In R. v. O'Leary, 2017 ONCA 71, paras 26-27, the defence also sought to challenge a statement that was found to be voluntary and Charter compliant on the basis that police conduct justified its exclusion. Writing for the court, Doherty J.A. held that “[w]hatever power a court might have to exclude a statement even though it is Charter compliant and voluntary”, there was no factual basis to do so in that case: at paras. 26-27. On the one hand, this statement by Doherty J.A. leaves open the possibility that a court might have such power. On the other hand, he did not situate this analysis in any other existing legal authority – if there was such a power, it seems he was not aware of it. Given this state of the law, I decline to sanction the police for the tactic of giving the accused alcohol during a police interview.

Conclusion Regarding “Oppressive Circumstances”

[67] I agree with the Crown that the interview of the accused did not involve any inhumane conditions. Police were attentive to the accused’s needs throughout their dealings with him, with the exception that the accused was not provided with a blanket when he requested it in the interview.

[68] While reference was made in submissions to safety protocols that might have prevented the accused being provided with a blanket, I have no evidence as to why this request was not met. Detective Fisher testified that it was not cold in the interview room and that is the only evidence I have on this issue apart from what was said in the interview. On this record, I am not persuaded that the failure to provide the accused with a blanket, standing alone or in conjunction with any other circumstance, amounts to an oppressive atmosphere that compelled the accused to speak when he did not otherwise wish to. The accused was clothed during the interview. There is nothing in his conduct during the interview that suggests he was meaningfully impacted by the conditions in the interview room, including the air temperature.

[69] Nor is there anything arising from the interview that causes me to conclude that the accused was under the impact of substances consumed prior to his arrest, or that he was suffering from whatever illness brought him to hospital earlier in the day. The record does not support the conclusion that the police conducted an interview with a person who was in pain, intoxicated, or unfit to understand the process.

[70] While it was a risky and extremely ill-considered tactic from a legal perspective to offer the accused alcohol, in the circumstances of this case, I find that making alcohol available to the accused was not “oppressive” within any current meaning of the case law. This was not inhumane conduct by the police – it was not an affront to the accused’s basic needs and did not deprive him of anything, including, in this instance, an operating mind. At the outset, the accused was told he could have water if he preferred. However, he chose to drink the beer that was made available to him. As he said, he was not sure when he might have one again. That the accused exercised this choice demonstrates that making alcohol available to the accused was not inhumane. Nor does it rise to the level of conduct such as to give rise to the concern described in Fernandes, at para. 36, that state agents have abused their authority over an accused “to effectively negate the accused’s ability to make an independent decision to speak to the authorities”.

[71] My conclusion might be different if there were cogent evidence of alcohol addiction on the part of the accused. This record does not support that conclusion as regards Mr. Beasley. While it appears he was a drug user, and that he had used drugs and alcohol the night before, I have no evidence that his drug or alcohol use rose to the level of an addiction. I do not believe that Mr. Beasley’s ability to make an independent decision to speak to authorities was this undermined by police conduct in presenting him with a substance to which he was addicted.

[72] As for the suggestion that the court should exclude the statement to distance itself from the conduct of police in offering the accused alcohol, this is not a s. 24(2) analysis under the Charter, where the jurisprudence allows for the exclusion of evidence to sanction Charter breaching conduct for that reason. No Charter breach is alleged here. Nor does the conduct at issue here relate to police trickery, the only branch of the voluntariness test that looks to the public’s view of a tactic in considering the admissibility of the evidence.

[73] I am also satisfied that offering the accused beer was not an inducement that led to the accused’s decision about whether to speak, or not, being overborne. The defence has not suggested it is, and again here, I find this is an appropriate concession.

[74] This is not to say that I approve of this tactic. My findings reflect the law as I understand it to be. Were it open to me to exclude the statement on the basis of my disapproval of the police conduct, or my assessment of the credibility of Det. Fisher, I would have reached a different conclusion. For instance, I do not believe Det. Fisher’s evidence that he could not recall how alcohol came to be in the police station. I do not believe his evidence that he has no recollection of the reaction of his superiors upon learning he had given alcohol to an accused in an interview after his arrest for a double homicide. I believe he lied to the court on these points.

[75] This adverse finding of credibility does not cause me to reject his evidence entirely, however. This is so because the recording of the interactions between Detective Fisher and the accused provide support to other features of his evidence. Importantly, I accept that it was not Detective Fisher’s intention to give the accused so much alcohol as to render him impaired. This is because of: 1) the choice the accused was given at the outset of the interview about whether to have the beer on the interview table or water; 2) the time between the beer cans offered to and consumed by the accused and the amount of alcohol they contained; 3) the accused’s very large size and the reasonable conclusion that light beer consumed over an hour would not impact his ability to choose whether to speak with police and what he might say.

[76] A reviewing court may yet take a different view of the circumstances or expand the law to address this kind of circumstance. Detective Fisher should not conclude from the outcome of this application that his tactic has been effective.

Conclusion

[77] The finding that the accused’s statement is voluntary reflects the overwhelming record that the accused voluntarily participated in the police interview to learn what evidence the police had against him, and to distance himself from the offences.

[78] Given the accused’s conduct during the interview, I have no doubt that the accused at all times understood why he was under arrest, and that he was under no obligation to speak to police. He debated the significance of evidence with Detective Fisher, and maintained denials he was tied to other pieces of evidence throughout the interview. I find he advanced a cogent narrative that was responsive to the pieces of evidence the officer told him about. At all times that narrative distanced himself from the murders. I am satisfied that his will was not overborne at any point as he did so, regardless of whatever impact the alcohol had upon him.

[79] Given the accused’s statements to Detective Fisher before and during the interview, I am wholly satisfied that the accused was motivated to enter into the interview process with Detective Fisher because he wanted to know what the evidence was against him. He wanted to know what the police theory was – whether they thought he had killed the victims, or “set them up”. As he learned about the evidence police had obtained and their theory of the case, he advanced an alternative narrative. I have no doubt that this is what motivated the accused to speak to Detective Fisher, and not the light beer provided to him. Whatever the police agenda during the interview, the accused also had his own.

[80] In short, given the totality of the evidence, I have no doubt that the accused understood that he was giving the statement to a police officer who could use it to his detriment in court. He had an operating mind. I also have no doubt that the accused gave the statement voluntarily, and that his will was not overborne by police tactics, oppressive circumstances, or any threats or inducements.

[81] For these reasons, the accused’s statement is admissible at trial.

Laurie Lacelle
Released orally: March 10, 2025
Released in writing for publication: June 25, 2025