Ontario Superior Court of Justice

Court File No.: CR-23-00000107-0000
Date: 2025-04-23

BETWEEN:
His Majesty the King
and
Gregory Anthony Beasley

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

Heard: April 22, 2025
Laurie Lacelle

Reasons for Ruling – Other Discreditable Conduct

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] The central issue in this case is the identity of the killer.

[3] During the trial, the Crown applied to admit evidence of Mr. Beasley’s other discreditable conduct. That application was dismissed during the trial. These are the reasons for my ruling.

The Proposed Evidence

[4] The Crown seeks rulings admitting evidence relating to two bodies of evidence:

1. statements made by the accused in recorded intercepts; and
2. statements made by the accused in text messages sent roughly 5 weeks after the murders.

[5] The evidence in the intercepts is said to be relevant because it shows the accused using the name Sofia (and then ceasing to do so), which was how a person corresponding with Mr. Soubliere identified themselves to him in the days leading up to the murders. These intercepts also show that the accused used more than one phone. The intercepts also contain reference to the accused’s possession of a firearm. The conversations in the intercepts otherwise have no probative value to the case – they are generally conversations between the accused and people to whom he sold drugs.

[6] The text messages in the second body of evidence were found on a phone used by the accused. They contain threats to an unknown person which the Crown says show that the accused had a propensity to act as a contract killer.

The Legal Principles

[7] The general rule is that evidence of the accused’s discreditable conduct is inadmissible unless it is the subject-matter of the charge: R. v. Tsigirlash, 2019 ONCA 650 at para. 23; R. v. Johnson, 2010 ONCA 646, paras. 83-84. This rule will not apply where the evidence of discreditable conduct meets the test for similar fact evidence: Tsigirlash at para. 24.

[8] The test for the admissibility of similar fact evidence is set out in R. v. Handy, 2002 SCC 56. Handy provides a framework for analyzing admissibility having regard to various factors. Ultimately, to admit evidence of similar facts or other discreditable conduct on the part of the accused, the Crown bears the onus of satisfying the trial judge on a balance of probabilities that the probative value of the evidence outweighs its prejudicial effect.

[9] Handy also recognizes that the required degree of similarity of the proposed evidence will be context specific. The court held at para. 78 that depending on the issue to which the evidence is said to relate, “the drivers of cogency in relation to the desired inferences will” not necessarily be the same. The court further discussed the difference between general propensity evidence, which is always inadmissible, and evidence of a specific propensity, which may be admissible. It held at para. 87 that “cogency increases as the fact situation moves further to the specific end of the spectrum”.

[10] Handy also confirmed, at para. 77, that “evidence of propensity on the issue of identification is not admissible ‘unless the propensity is so highly distinctive or unique as to constitute a signature’” [citing R. v. Arp, para. 50]. Indeed, in Arp, the court outlined the following suggestions for a trial judge in deciding whether to admit the proposed evidence:

(1) Generally where similar fact evidence is adduced to prove identity a high degree of similarity between the acts is required in order to ensure that the similar fact evidence has the requisite probative value of outweighing its prejudicial effect to be admissible. The similarity between the acts may consist of a unique trademark or signature on a series of significant similarities.

(2) In assessing the similarity of the acts, the trial judge should only consider the manner in which the acts were committed and not the evidence as to the accused’s involvement in each act.

(3) There may well be exceptions but as a general rule if there is such a degree of similarity between the acts that it is likely that they were committed by the same person then the similar fact evidence will ordinarily have sufficient probative force to outweigh its prejudicial effect and may be admitted.

(4) The jury will then be able to consider all the evidence related to the alleged similar acts in determining the accused’s guilt for any one act. [emphasis added]

[11] Ultimately, where there is an insufficient nexus between the accused’s prior discreditable conduct and the issues in the trial, the evidence ought not to be admitted: see R. v. Smith, paras. 51 and 53.

[12] Further caution is warranted when the proposed evidence said to establish the accused’s disposition is based on a single event. The following comments by Doherty J.A. in R. v. Batte, para. 98 are on point given the evidence in this case:

Despite its relevance, evidence that depends on propensity reasoning for its admissibility is usually excluded because its potential prejudicial effect outweighs its probative value: R. v. Arp, supra, at p. 361 S.C.R., p. 339 C.C.C. Often the evidence has little probative value because either or both of the necessary inferences needed to give the evidence probative force are tenuous. For example, the inference that an accused has a certain disposition based on evidence of a single discreditable act could be so tenuous as to have virtually no probative value. Similarly, where discreditable evidence is probative of a disposition, the inference that an accused acted in accordance with that disposition on the occasion in question will often be a very weak one. For example, evidence that an accused repeatedly abused “A” would not, standing alone, support the inference that he was disposed to abuse “B” on the occasion alleged in the indictment.

[13] Batte also provides a cogent explanation for why courts must be cautious about admitting propensity evidence. As Doherty J.A. wrote at para. 100,

It is a fundamental tenet of our criminal justice system that persons are charged and tried based on specific allegations of misconduct. If an accused is to be convicted, it must be because the Crown has proved that allegation beyond a reasonable doubt and not because of the way the accused has lived the rest of his or her life. An accused must be tried for what he or she did and not for who he or she is. The criminal law’s reluctance to permit inferences based on propensity reasoning reflect its commitment to this fundamental tenet … [citations omitted]

Analysis

The Admissibility of the Intercepts

[14] The contents of the accused’s statements in the intercepts have probative value. His statements are probative to discreet factual issues, such as the fact that he used the name Sofia (and stopped using it after a media release by police), that he had more than one phone, and he had access to firearms. However, these facts are either made out by other evidence that is admissible in the trial, or they are (or will be) addressed in admissions made by the defence. In other words, none of the intercepts introduces anything new, or fills a gap in the Crown’s case.

[15] In my view, while certain parts of the intercepts may be probative, they ought not to be admitted given the prejudice the intercepts may cause. There is no benefit to admitting the evidence, and it would come with a real cost to doing so for a number of reasons.

[16] First, many of the conversations are confusing. There is no clear context for them, and there are multiple speakers. Aside from brief references to certain factual issues, they offer nothing of value, and I expect would confuse the jury since nothing that is discussed in the conversations relates to anything they have heard at trial.

[17] More importantly, admitting these intercepted conversations would introduce further bad character evidence into a trial which necessarily has considerable amounts, given the context of the killings. Audio recordings of the accused’s dealings with his drug clientele would further emphasize this part of his history and enhance the risk for moral prejudice.

[18] The defence has made a number of significant concessions regarding the factual issues advanced by the intercepts, and there is no further benefit to the jury’s fact-finding process to hear the intercepted conversations proposed by the Crown. This conclusion is supported by Handy, at para. 74, where the court noted that “[i]f the issue [to which the evidence is said to relate] has ceased to be in dispute, as for example when the fact is admitted by the accused, then the evidence is irrelevant and it must be excluded”.

The Admissibility of the Text Messages

[19] The Crown argues the text messages are admissible on two issues: to prove the identity of the killer, and to the credibility of witness Justina Murray, who says the accused told her he was ordered to commit the murders from jail and that he was to be paid for doing so.

[20] I would not admit the evidence on either basis.

[21] As was noted by Watt J.A. in R. v. M.G.T., 2017 ONCA 736 at para. 66, in relation to hearsay statements, context is necessary to “assign [the statements] meaning. In the absence of meaning, they lack relevance”.

[22] This reasoning has some application here. There is little evidence about this set of messages to give it context. Without that context, all that is left is a bald threat to kill someone who is worth “60 bands”.

[23] As for the admissibility of the evidence on the issue of identity, I find there is no compelling similarity to the contents of the text messages and the crimes with which the accused is charged. There is no suggestion in this case that the accused gave notice of his intention to kill the victims because their lives were worth money – the evidence in this case is to the opposite effect. There is no evidence that the accused acted on his threatening text message, or that he in fact killed this unknown person for money, unlike the allegation in this case. As the defence says, the Crown is comparing a murder with a threat. Fairly considered, and taken at its highest, the evidence is that the accused threatened to kill someone else and suggested it was worth money to do so. The evidence is very far removed from the type of evidence that could be said to show a specific propensity to engage in contract killing. Applying the general rule identified in Arp at para. 50, I do not find that there is such a degree of similarity between the acts in the proposed evidence and in the murders of Mr. Soubliere and Mr. Delphin that it is likely that they were committed by the same person.

[24] Assuming that one instance of a threat to kill, communicated to the target ahead of time, could be said to be probative of a disposition to act as a contract killer (as opposed to a disposition to threaten violence), I would exclude the evidence because of its prejudicial effect. To allow the Crown to argue, based on this set of text messages, that the jury could conclude the accused was the killer because he had a specific propensity to engage in contract killing would be, as the defence suggests, “nuclear” in its prejudicial impact. A jury instruction would be insufficient to cure the moral reasoning prejudice that would follow with the admission of this evidence.

[25] I am not satisfied that the Crown has demonstrated that the evidence is of a specific propensity on the part of the accused, as opposed to a general propensity for violence, which is always inadmissible.

[26] If the evidence could be said to be otherwise admissible to support the credibility of a witness, I would nevertheless exclude it given its prejudicial effect.

[27] The Crown has not justified the departure from the general rule that evidence of other discreditable conduct is inadmissible. The application is dismissed.

Laurie Lacelle
Released orally: April 23, 2025
Released in writing for publication: July 18, 2025