Ontario Superior Court of Justice

Court File No.: CR-23-00000107-0000
Date: 2025-03-31

BETWEEN:
His Majesty the King
– and –
Gregory Anthony Beasley, Defendant

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

Heard: March 26, 2025
Justice: Laurie Lacelle

Reasons for Ruling – Defence Motion to Admit Hearsay

Statement of the Deceased Carl Delphin

[1] The accused, Mr. Beasley, is charged with two counts of first-degree murder. The deceased were shot in the head at a parking lot in Kingston on October 16, 2021. The Crown theory is that this was an execution ordered from jail.

[2] The deceased were involved in the drug trade. The defence brings a motion to admit hearsay utterances of the deceased, Nico Soubliere and Carl Delphin, to James Brooks, to the effect that the deceased were looking to rob another drug dealer for their Percocets. The defence relies primarily on the principled exception to the hearsay rule, and alternatively, on the state of mind or present intention exception to that rule.

[3] The Crown opposes the admissibility of these utterances. The Crown says that the statement is not admissible under either hearsay rule. Moreover, the Crown says the evidence is not relevant, and that it should be excluded having regard to its prejudicial effect.

[4] During the trial, I provided a ruling that the statements by the deceased to Mr. Brooks were admissible for the purpose advanced by the defence. I am satisfied that the statements are admissible under the principled exception to the hearsay rule, and accordingly do not consider the alternative route to admissibility advanced by the defence.

[5] These are my reasons for so ruling.

The Relevance and Probity of the Evidence

[6] The central issue in this case is the identity of the shooter who killed the victims. In its factum, the defence asserts that “the background of the deceased parties’ dealings with dangerous third parties and their dangerous lifestyles in the weeks leading up to the homicide is clearly relevant to whether the Crown can prove the identity of the murderer”.

[7] The defence maintains it is not advancing a third-party suspect defence (or an unknown third-party suspect defence). However, it argues that it is entitled to point to the dangerous lifestyle of the deceased in aide of a submission that the Crown’s case does not prove beyond a reasonable doubt that Mr. Beasley was the killer.

[8] The defence relies on R. v. Millard, 2017 ONSC 5701, where Code J. decided that the dangerous lifestyle of the deceased, who had been involved in sex work, was not an “alternate suspect” defence, and that it was relevant and probative to issues at trial. Justice Code reasoned as follows at para. 36:

The Crown’s main argument in relation to Ms. Babcock’s statement about “sleeping” with her clients is that Smich is somehow raising an “alternate suspect” defence. Ms. Cameron submits that evidence about prostitution is tendered by the defence to infer the danger involved in the sex trade and to give rise to a further possible inference that Ms. Babcock may have disappeared as a result of some other cause unrelated to the two accused, for example, due to a desire to escape a dangerous lifestyle or due to a violent client. I do not agree that this process of reasoning means that Smich is raising an “alternate suspect” defence. There is no known alternate suspect that the defence can point to. See R. v. Grant, 2015 SCC 9. In my view, the defence is simply testing the cogency of the circumstantial inferences that the Crown relies on to infer that Ms. Babcock disappeared and was killed while with the two accused on July 3 and 4, 2012. The defence is entitled to point to alternative reasonable possibilities in order to explain Ms. Babcock’s disappearance. Whether the jury agrees that these alternative theories are reasonable possibilities, as opposed to mere speculation, will depend on an assessment of all the circumstantial evidence. See: R. v. Villaroman, 2016 SCC 33; R. v. Morris, Brissett and Benjamin, 2017 ONSC 835 at paras. 103-106. [emphasis added]

[9] I find that reasoning applies here, despite the different factual circumstances in this case. I find that the dangerous lifestyle led by the deceased in this case is relevant to the identity of the shooter. This is because it may properly be relied upon by the defence in “testing the cogency of the circumstantial inferences that the Crown relies on” to prove the identity of the shooter.

[10] The Crown does not disagree with this assessment. Nor is there any debate from the Crown that the deceased were engaged in a dangerous lifestyle. While the Crown agrees that the defence can point the jury to that lifestyle in a general way as a basis to conclude that the Crown has not proved its case beyond a reasonable doubt, it says that there is already ample evidence before the jury from which they can conclude that the deceased were involved in a dangerous lifestyle. For instance, the jury has heard that the deceased were dealing drugs, including fentanyl. They have heard evidence that each of them carried a gun at some point, and that Mr. Delphin was carrying a gun at the time he was shot. The Crown says that to introduce the hearsay statements would be to allow the defence to effectively advance an unknown third-party suspect defence and a theory of a robbery gone wrong which finds no foundation in the evidence.

[11] The defence says that the jury should know of the very risky intentions expressed by the deceased in the days before they met their death because it is probative of the dangerous lifestyle they led and allows for the possibility that they had developed other adversaries on the day of their death. The defence points to gaps in the evidence, and the 24 minutes when the deceased were in the area of the K and P trail and argues that “there is so much we don’t know about the actions of the deceased that day that it is impossible to conclude there could not have been a drug deal gone wrong”. The defence says that depriving the jury of the hearsay statements will deprive the jury of the “full picture” and leave the impression that the deceased were only in danger because of their relationship with accused. The defence says the jury should know not only that the deceased were drug dealers, but that in the days before their death they had expressed the intentions to engage in the dangerous behaviour of robbing other drug dealers.

[12] I agree with the defence. While the fact that both deceased had carried guns during drug transactions provides some insight into the risks they faced, the evidence that they also had the intention to engage in the robbery of other drug dealers at a time proximate to their death may amplify the jury’s understanding of the nature of the danger to which the deceased were exposed. The probative value of the evidence has some force.

[13] As for the concern that admitting this evidence will invite speculation by the jury, again here, I agree with Code J’s reasoning in Millard: “Whether the jury agrees that these alternative theories are reasonable possibilities, as opposed to mere speculation, will depend on an assessment of all the circumstantial evidence”. It is open to the Crown to argue to the jury that the defence theory is mere speculation having regard to other evidence in the case. This does not preclude the admissibility of the evidence, however.

The Statement at Issue

[14] James Brooks was a client of the deceased. He was 38 years old at the time of these events. He gave a statement to police in the aftermath of the murders, and testified at the preliminary hearing. In those statements, he provided the evidence that follows.

[15] He had “three, maybe four” dealings with the deceased, who he knew as S.K. (Mr. Soubliere) and A.K. (Mr. Delphin). He said S.K. was trying to break into the Kingston drug scene.

[16] Mr. Brooks met the deceased sometime in October. The first time he met them at his friend Rob’s house, they were selling fentanyl. Mr. Brooks purchased some. The deceased also visited Mr. Brooks’ house. They showed him they had fentanyl and crack cocaine.

[17] The defence concedes that it is not clear when the utterances at issue were made. The deceased visited Mr. Brooks the day they died, as well as on October 7, 2021, which was 9 days before they died.

[18] On the day of the murder, the deceased visited Mr. Brooks at his home for about 25 minutes. Mr. Delphin showed him his gun. He says the deceased told him, “we got protection”.

[19] At some point, the deceased told him they wanted to set up a meeting with a drug dealer who sold Percocets in order to rob the drug dealer. Mr. Brooks described them as “pushing” him to set it up. They wanted him to set up a meeting place. It was “the black kid” who said they were going to rob the drug dealer. Mr. Brooks said he pretended to text the dealer to set it up, but he never did.

[20] During the preliminary hearing, Mr. Brooks said, “they wanted me to try and set them up with somebody, and I wouldn’t do it, and he showed me had had protection”. He had described “A.K.” (Mr. Delphin) as having what looked like a brand new 9mm firearm, which he was carrying in a Gucci bag.

[21] Mr. Brooks was also asked what gave him the impression the deceased were looking to set someone up and he said, “I’m not sure”. He agreed they had asked him to go through his contacts and find someone that would have Percocets and set them up with that person. He said they wanted “take their percs”, but also that he was not sure if they wanted to buy them or take them.

The Legal Principles

The Admissibility of Hearsay

[22] Hearsay is an out-of-court statement tendered for the truth of its contents. It is presumptively inadmissible. This is because allowing a trier of fact to consider hearsay may compromise trial fairness and the truth-seeking process. As noted by the Supreme Court of Canada in R. v. Bradshaw, 2017 SCC 35 at para. 20, hearsay “may be inaccurately recorded, and the trier of fact cannot easily investigate the declarant’s perception, memory, narration, or sincerity.” Generally, a hearsay statement is not taken under oath, the trier-of-fact cannot observe the declarant’s demeanor as they make the statement, and the hearsay statement cannot be tested through cross-examination.

[23] However, as re-iterated in Bradshaw at para. 22, “some hearsay evidence ‘presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding’” [emphasis in original]. Accordingly, exceptions to the hearsay rule have developed over time.

[24] Under our law, hearsay may be admitted under one of the traditional exceptions to the hearsay rule at common law, or under the principled exception to the rule, which has been developed by the Supreme Court of Canada in its jurisprudence.

[25] I have concluded that the statement at issue in this application is admissible under the principled exception. Accordingly, I review only that body of law.

The Principled Exception to the Hearsay Rule

[26] Where a party seeks to have hearsay admitted under the principled exception to the hearsay rule, that party must prove, on a balance of probabilities, the criteria of necessity and reliability: R. v. Youvarajah, 2013 SCC 41 at para. 21. Necessity is made out in this case because the declarant is deceased. Consequently, I review the law only as it pertains to reliability.

[27] The issue for a judge ruling on admissibility is the threshold reliability of the statements and not its ultimate reliability. Threshold reliability will be established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficulty in its testing. The dangers relate to assessing the declarant’s perception, memory, narration, or sincerity: Bradshaw at para. 26.

[28] These dangers may be overcome where “(1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability)”: Bradshaw at para 27; see also Khelawon at paras. 61-63. A useful summary of this law was provided in R. v. Srun, 2019 ONCA 453 by Watt J.A. as follows at paras. 124-127:

The reliability requirement may be established in either or both of two ways.

Procedural reliability is established when there are adequate safeguards for testing the evidence despite the fact that the declarant has not given the evidence in court, under oath or its equivalent and under the scrutiny of contemporaneous cross-examination: R. v. Khelawon, 2006 SCC 57 at para. 63. These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement: Khelawon, at para. 76; Hawkins, at para. 75. Among the substitutes for traditional safeguards are video recording the statement, administration of an oath and warning the declarant about the consequences of lying: B. (K.G.), pp. 795-96. However, some form of cross-examination, as for example of a recanting witness at trial, is usually required: Bradshaw, at para. 28; R. v. Couture, 2007 SCC 28, at paras. 92-95.

Substantive reliability is established where 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.

Procedural and substantive reliability are not mutually exclusive. They may work in tandem in that elements of both can combine to overcome the specific hearsay dangers a statement might present even where each, on its own, would be insufficient to establish reliability: Fredericks v. R., 2018 NBCA 56, at para. 77; Bradshaw, at para. 32.

Substantive Reliability

[29] The standard for substantive reliability is high, but it does not require that reliability be established with absolute certainty. The trial judge must, however, “be satisfied that the statement is ‘so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process’”: Bradshaw at para. 31, citing Khelawon at para. 49.

[30] Corroborative evidence may be considered in assessing the substantive reliability of hearsay. Bradshaw directs how this should be done, and why courts must limit what evidence is used as corroborative evidence for the purposes of admitting hearsay.

[31] There has been some commentary in the jurisprudence and in legal commentary to the effect that Bradshaw “prescribes what is arguably a more exacting analysis of reliability” than was set out in Khelawon: Nurse at para. 98. It is important to note, however, that while it does provide further guidance on how to analyze any extrinsic evidence tending to confirm or conflict with the material issue in the hearsay utterance, Bradshaw does not modify the overall structure of the analysis to be performed when analyzing substantive reliability under the principled exception: R. v. McGenn, 2018 BCSC 753 at para. 24; R. v. Larue, 2018 YKCA 9 at para. 98, aff’d 2019 SCC 25. Accordingly, where, on a balance of probabilities, a court determines that there are sufficient guarantees of a statement’s inherent trustworthiness, a statement may be admitted because it meets the test for threshold reliability.

[32] Regardless of whether extrinsic evidence is relied upon, substantive reliability is established when the statement is found to be so reliable that it is unlikely to change under cross-examination: R. v. Smith, [1992] 2 SCR 915 at p. 933; Khelawon at para. 72; R. v. M.G.T., 2017 ONCA 736 at para. 139; Bradshaw at para. 31.

[33] As for the circumstances in which a statement is made, there may be a number which are relevant to the assessment of substantive reliability, including:

i. the timing of the statement in relation to the event reported;
ii. the presence or absence of a motive to lie on the part of the declarant, or any other reason to doubt the truthfulness of the statement;
iii. the presence or absence of leading questions or other forms of prompting;
iv. the nature of the event reported;
v. the likelihood of the declarant’s knowledge of the event, apart from its occurrence;
vi. whether there would be any difficulties with respect to the declarant’s capacity to perceive or remember events;
vii. the condition of the declarant at the time the statement was made;
viii. the amount of detail in the statement; and,
ix. the demeanour of the declarant at the time the statement was made.

See R. v. J.M., 2010 ONCA 117 at para. 54. See also R. v. McGenn, 2018 BCSC 753 at para. 22, citing R. v. Hindessa at para. 14.

The Standard of Proof

[34] With respect to the standard of proof, the Court in Bradshaw cautioned at para. 49:

While the declarant’s truthfulness or accuracy must be more likely than any of the alternative explanations, this is not sufficient. Rather, the fact that the threshold reliability analysis takes place on a balance of probabilities means that, based on the circumstances and any evidence led on voir dire, the trial judge must be able to rule out any plausible alternative explanations on a balance of probabilities.

The Residual Discretion to Exclude Evidence

[35] Trial judges retain a residual discretion to exclude otherwise admissible evidence “where its impact on the trial process (cost) exceeds its value to the correct disposal of the litigation at hand (benefit)”: R. v. Candir, 2009 ONCA 915 at para. 59 per Watt J.A. This will be the case where the prejudicial effect of the evidence exceeds its probative value.

Analysis

[36] There are no markers of procedural reliability here. Accordingly, the statements are only admissible if the defence proves their substantive reliability on a balance of probabilities. I am satisfied that it has.

The Circumstances in Which the Statement Was Made

[37] Here, the material aspect of the statement is that the deceased intended to rob another drug dealer of their Percocets. The only possible hearsay danger relates to the difficulty in assessing the declarants’ sincerity – that is, it relates to the possibility that the deceased were being deceitful when they made it. The only alternative explanation for making the hearsay statement at issue is that the declarants were boasting or joking.

[38] For the reasons I outline below, the circumstances in which the statement was made persuade me of their substantive reliability given the nature of the hearsay danger in this case, and the only possible alternative explanation for it.

[39] This is so, notwithstanding that there is uncertainty in the evidence of Mr. Brooks about when the statement was made. With respect to the timing of the statement, I am satisfied that it was made on at least one of the occasions that the deceased were at Mr. Brooks’ residence, and that at most, it was nine days from the date of the murders. The issue of the timing of the statement is an issue for the jury, in my view. On any of the accounts provided by Mr. Brooks, the statement is sufficiently proximate to be relevant for the reasons I have outlined.

[40] There is also a lack of clarity as to what each deceased said. Even so, Mr. Brooks has attributed at least certain comments to Mr. Delphin, and has globally referred to the intention of the deceased to rob a Percocet dealer. In my view, there is sufficient evidence on the voir dire to conclude that at least one of the deceased made a statement, in the presence of the other, to the effect that they wanted to rob another drug dealer of their Percocets.

[41] As for the circumstances in which the statement was made, it expresses an intention to commit a significant criminal offence. It is against the interest of the deceased. On the evidence, it is a statement that is proffered by the deceased without any prodding by its recipient – the deceased raise the prospect of robbing a drug dealer and keep pushing about that in the face of resistance from Mr. Brooks.

[42] There is also no reason to be suspicious that the deceased had a reason to lie to Mr. Brooks about this statement.

[43] The alternative explanation for the statement is that it was made in jest, that it was a joke. I do not find this theory persuasive in all the circumstances. It seems that the interest in robbing another drug dealer was focused on Percocets specifically. This is an oddly specific joke, if in fact it was one.

[44] Further, Mr. Brooks’ statements do not give the impression that this was a comment made as a joke. Mr. Brooks appears to have taken the request seriously. He was concerned that if he acted on their request, things would become difficult for him since he lived in Kingston, and so he refused. There is no sense at all on his evidence that he perceived this to be a joke.

[45] Then too, there is some evidence to suggest that during this conversation the deceased relied on their possession of a firearm to suggest they had “protection”. Again, this is not a circumstance that appears to reflect a conversation that was had in jest.

[46] The hearsay danger here relates to the declarants’ sincerity. There is no issue in the circumstances of the statement as to their memory, perception, or narration in making it. The statement is not a re-telling of an event, but an expression of intention. There are no dangers associated with mis-remembering or mis-perceiving their own intentions. I agree with the defence that “it defeats common sense that the declarants unintentionally expressed they were planning on robbing a drug dealer”.

Conclusion

[47] I am satisfied that the statement is so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process: Bradshaw at para. 31, citing Khelawon at para. 49. I am also satisfied, on a balance of probabilities, that given the circumstances, there is no plausible alternative explanation for the statement other than the truthfulness of the declarant.

[48] I also note that in R. v. Sunjka, the Court of Appeal confirmed that a judge should consider her residual discretion “to relax the strict rule, when it is the defence seeking to tender these out-of-court statements for their truth and where the evidence has some reliability”. This further supports my conclusion that the statements should be admitted.

[49] Of course, the credibility and reliability of the hearsay recipient is not an issue that factors into the analysis of admissibility of the statement, except in certain circumstances, none of which arise here. Accordingly, whether the statement was made at all is an issue for the jury to consider.

The Probative Value of the Evidence Exceeds Its Prejudicial Effect

[50] As noted by the defence, courts are cautious about restricting the power of the accused to call evidence in his or her defence. Accordingly, defence evidence will only be excluded if its potential prejudice substantially outweighs its probative value: R. v. Seaboyer, para. 43.

[51] In this instance, I find the potential prejudice of the evidence is low. The jury already has substantial evidence about the deceased which might be considered disreputable conduct. This additional evidence is unlikely to prejudice the jury.

[52] As for the impact on the trial this evidence might have, I see very little in the way of evidence that will distract the jury. The introduction of this evidence will not require significant time, and its use and purpose may be made clear for the jury.

[53] Further, the defence confirmed in its submissions on this voir dire that it is open to vetting its comments about this evidence in its closing to the jury with the Crown and with the court. This addresses the Crown’s concern that counsel might somehow use it to advance a third-party suspect defence in its closing submissions. This further addresses any potential prejudice to the Crown.

[54] Ultimately, I am satisfied that the probative value of the evidence outweighs its prejudicial effect.

Honourable Madam Justice Laurie Lacelle
Ruling made orally: March 31, 2025
Reasons Released in writing: June 25, 2025