Ontario Superior Court of Justice

Court File No.: CJ101712
Date: 2025-04-14

Between

His Majesty the King
Applicant
B. Schnell and D. Silvestro, Counsel for the Applicant

-and-

Christopher Burnette
Respondent
M. Kruse, Counsel for the Respondent

Heard: January 29, 2025

Reasons for Decision – Pretrial Motion

Bad Character Evidence of the Complainant

S. Antoniani

These reasons were delivered orally on March 13, 2025.

Background

[1] Christopher Burnette (the “Applicant”) is a Correctional Officer at Grand Valley Institution for Women. He is charged with sexual assault for engaging in sexual activity with inmate C.D. (the “complainant”). At the time the allegations arose, the complainant was an inmate at the federal prison institution where the Applicant was employed as a prison guard.

[2] The Applicant seeks to introduce bad character evidence through the testimony of Brittany Crozier, who would testify that the complainant was involved in ongoing and extensive drug use during the time of the events which give rise to the allegations, and during the time the complainant disclosed the allegations. The Applicant argues that Ms. Crozier’s evidence on these issues is relevant to the trial, in that it is probative in relation to the jury’s ability to assess the reliability and the credibility of the complainant’s evidence.

[3] The Crown argues that the evidence is entirely as to collateral issues and should not be admitted. To admit it would confuse and distract the jury and create two trials within this trial: one between Ms. Crozier and the complainant, and another between Ms. Crozier and Mr. McKenzie.

[4] On January 22, 2025, Ms. Crozier was denied parole. Thereafter, she received a letter from the Applicant’s counsel, apparently authored on January 31, 2025 and received by Ms. Crozier on February 7, 2025. On March 4, 2025, I presided over a motion involving the proposed evidence of Ms. Crozier in relation to a note that she wrote to the complainant while they were both housed in the minimum security portion of the institution. The affidavit in support of that motion did not include the information provided in the affidavit of March 6, 2025, sworn in support of this motion.

Issues

[5] The collateral fact rule does not impact the scope of cross-examination of the complainant on any of the issues raised. It is agreed that the proposed evidence is collateral. Therefore, the issue on this motion is the following:

a. Is the proposed evidence of such significant probative value to the credibility or reliability of the complainant’s evidence that it should be permitted to be introduced at trial notwithstanding the rule against the calling of evidence to disprove collateral issues?

The Proposed Evidence

[6] The following is a summary of the alleged drug use and drug trafficking evidence provided by Ms. Crozier viva voce on this motion. I have separated it into two time periods: first, the consumption that is alleged to have taken place while Ms. Crozier and the complainant were both inmates in the minimum-security unit of the Grand Valley Institution, during which time Ms. Crozier indicates that they spent almost all day every day together. It was during this period that the alleged assaults occurred, and that the complainant is alleged to have made disclosure of the assaults to other inmates. The second period relates to the alleged consumption of drugs and alcohol that is alleged to have taken place when Ms. Crozier and the complainant were housed in the medium security portion of the institution, where, according to Ms. Crozier, they saw one another less frequently. It was during this period that the complainant first made disclosure of the alleged assaults to persons in authority.

Minimum Security

[7] First, in relation to the period of August 2021–December 3, 2021, it is the proposed evidence of Ms. Crozier that the complainant consumed the following quantities of alcohol, which Ms. Crozier would testify were obtained by David McKenzie during his visits to the complainant:

• One bottle of vodka, which she shared with Ms. Crozier
• One bottle of rum, some of which was shared with Ms. Crozier
• An unspecified number of cans of beer on one occasion outside in the forested area, shared with Ms. Crozier, and at least one beer, obtained at the same time but taken into the institution for consumption at a later time.

[8] During this same period of August 2021 – December 3, 2021, Ms. Crozier alleges that the complainant consumed the following quantities of drugs, all, she would say, obtained from David McKenzie during institutional visits:

• Methamphetamine, in unspecified amounts, consumed on three unspecified occasions.
• Cannabis, consumed by smoking on one occasion with Ms. Crozier out in the forested area.
• A cannabis gummy bear, consumed on one occasion, with Ms. Crozier also consuming one cannabis gummy bear on the same occasion.
• Cannabis, consumed by smoking on December 3, 2021, with Ms. Crozier and another inmate, when they were all caught and moved to medium security (note: it is unclear to me whether this and the first cannabis consumption are the same occasion).
• Cocaine, 2-3 grams, delivered once weekly over an unspecified number of weeks, snorted, and shared with Ms. Crozier.

[9] Other than December 3, 2021, where Ms. Crozier refers to smoking cannabis, which is a known date because the women were found out and they were moved to medium security on that date, Ms. Crozier did not provide any specific dates when drug or alcohol consumption occurred, other than indicating that it was while both inmates were in the minimum-security unit.

[10] Ms. Crozier testified that generally, she and the complainant did not consume drugs from the second week of each month until about the 22nd day of the month, because they had come to understand that during the second and third weeks of each month, there might be random urinalysis of the inmates. They limited their drug consumption to the period starting about the 22nd of the month and before the second week of the following month, when they believed there to be lower risk of random urinalysis.

[11] Ms. Crozier also testified that she and the complainant did not consume drugs prior to visits from their families and their children, and that they did not visit the “front desk” at the minimum security building of the institution, where they otherwise had daily conversations with the guards, when they were under the influence of drugs or alcohol.

Medium Security

[12] During the period from December 3, 2021 – April 2022 – when the two were in medium security and when they only saw one another occasionally, Ms. Crozier testified to the following consumption by the complainant:

• Suboxone on two occasions, where the suboxone was provided to the complainant by Ms. Crozier. Ms. Crozier did not testify as to the dates of either of these two events.
• The consumption of hand sanitizer as an alcohol substitute on one occasion when Ms. Crozier “sniffed” the contents of the complainant’s water bottle and smelled that it was hand sanitizer. Ms. Crozier testified that she believed that the complainant was drinking hand sanitizer on numerous other occasions. Ms. Crozier gave hearsay evidence about the fact that other inmates told her that they were consuming hand sanitizer with the complainant, and that they invited Ms. Crozier to join them. She declined. Ms. Crozier also testified that she was aware that the complainant was paying $60-$80 for each container of the sanitizer but this evidence was not detailed in any other way.

Trafficking

[13] In addition to the consumption of the substances as noted above, Ms. Crozier testified that on one occasion, she observed the complainant sell cannabis to another inmate. On the first occasion when the two smoked cannabis together, the complainant had obtained that cannabis from her boyfriend, Mr. McKenzie, who tossed it over the fence in the grassed area outside the minimum-security part of the institution. Ms. Crozier testified that she was present when the complainant gave the bag of cannabis to Ms. Singleton, another inmate, along with a handful of cigarettes, and that Ms. Singleton and the complainant agreed that a third party would e-transfer $500 to Mr. McKenzie as payment for the cannabis. Again, it is not clear to me whether this was on December 3rd, which is the day when the three women were caught and moved to medium security.

The Law on Collateral Issues

[14] As already stated, the parties agree that the proposed evidence is in relation to collateral issues, as the issue at trial is whether or not the Applicant sexually assaulted the complainant and whether he committed a breach of the duties of his office.

[15] The collateral fact rule was described in the Ontario Court of Appeal decision in R. v. B. (A.R.), aff'd 2000 SCC 30, at para. 13:

[T]he general rule is that one cannot impugn a witness's credibility by contradicting the witness on matters which are collateral even in a case where the "core" issue is credibility. As stated in Phipson, supra, at para. 12-33:

A party may not, in general, impeach the credit of his opponent's witness by calling witnesses to contradict him as to matters of credit or other collateral matters, and his answers thereon will be conclusive. This rule is not absolute. The test whether a matter is collateral or not is this: "if the answer of a witness is a matter which you would be allowed on your own to prove in evidence — if it had such a connection with the issues, that you would be allowed to give it in evidence — then it is a matter on which you may contradict him".

[16] The latter quote is taken from Attorney-General v Hitchcock (1847) 1 Ex.01, 154 E.R. 38, often cited as an initial articulation of the collateral facts rule.

[17] The Crown relies also on R. v. B. (S.), 2016 NLCA 20, where the court overturned a trial court’s decision to allow the complainant in a sexual assault case where the allegations were against her spouse, to be cross-examined as to whether she had an affair during her marriage. The complainant had told police that she had always been faithful to her husband and that she had never cheated, and the accused argued that text messages showing that she did in fact have an affair were relevant to her credibility. In finding that the evidence was collateral and that it should not have been allowed, the court stated the following, at para. 11, referencing passages from The Law of Evidence in Canada: Sopinka, Lederman and Bryant, (3d ed.) at pp. 1170-71:

There is a general rule that answers given by a witness to questions put to him or her on cross-examination concerning collateral facts are treated as final, and cannot be contradicted by extrinsic evidence. Without such a rule, there is the danger that litigation will otherwise be prolonged and become sidetracked and involved in numerous subsidiary issues. The rule does permit the use of extrinsic evidence to contradict a witness who has made a statement in cross-examination which is relevant to the substantive issue. However, with respect to questions which are directed solely to impeaching a witness' credibility, the answers must, save for certain common law and statutory exceptions, be accepted as final. McIntyre J., in Krause v. R., described collateral matters as being "non determinative of an issue arising in the pleadings or indictment or not relevant to matters which must be proved for the determination of the case."

[18] The court continued its collateral fact analysis at para. 12, where it stated:

I note the references in the foregoing quote to "substantive issue" and "an issue arising in the pleadings or indictment". In the criminal context, this means relevant to an element of the offence, e.g. identity. It does not refer to credibility, which in many cases must be assessed in deciding a "substantive issue" or "an issue arising in ... the indictment". Credibility is not a "substantive issue", nor is it "an issue arising in ... the indictment".

[19] The Applicant seeks to use the proposed evidence here to challenge the reliability and credibility of a sexual assault complainant. I have given particular consideration to this fact, in reviewing the comments of the court in R. v. J.J., 2022 SCC 28, at para. 1:

More often than not, [complainants in sexual assault cases] could expect to have the minutiae of their lives and character unjustifiably scrutinized in an attempt to intimidate and embarrass them, and call their credibility into question — all of which jeopardized the truth-seeking function of the trial. It also undermined the dignity, equality, and privacy of those who had the courage to lay a complaint and undergo the rigours of a public trial.

[20] The Supreme Court also notes in J.J., at para. 129 that “many exclusionary rules exist in Canadian criminal law to prevent the Crown or defence from distorting the truth-seeking function of the trial process, which is an integral component of trial fairness”.

[21] In R. v. Samaniego, 2022 SCC 9, at para. 134, the Supreme Court (in dissent, though not on this issue) described the purpose of the collateral fact rule as follows:

[134] [The collateral fact] rule is designed to promote judicial efficiency: D. M. Paciocco, P. Paciocco and L. Stuesser, The Law of Evidence (8th ed. 2020), at p. 4. In most cases, collateral facts are relevant and material, but not very probative of the ultimate issues at trial. Courts thus prevent parties from pursuing collateral facts because the benefit of pursuing the collateral facts to the trial’s truth-seeking function is outweighed by the negative effects to the trial process. But when the benefits of the collateral facts outweigh the negative impact on the trial process, exceptions to this general exclusionary rule apply. The established exceptions to the collateral facts rule — such as proof of bias — recognize that when the probative value of a collateral fact outweighs its prejudicial effects to trial efficiency, parties should be allowed to pursue the issue: p. 604.

[22] I note that the court in Samaniego also references a residual discretion in the courts to exclude evidence that is otherwise technically admissible, at para. 135, where the Supreme Court states:

[135] More generally, trial judges have a residual discretion to exclude technically admissible evidence when the evidence’s probative value is outweighed by its prejudicial effects. Evidence is prejudicial when, among other concerns, it would unduly undermine the efficiency of the trial by consuming “an inordinate amount of time which is not commensurate with its value”: R. v. Mohan, at p. 21; see also R. v. Handy, 2002 SCC 56, at paras. 37 and 83; R. v. Candir, 2009 ONCA 915, at paras. 60-61; R. v. Hall, 2018 ONCA 185, at para. 59; R. v. Podolski, 2018 BCCA 96, at paras. 382-89.

[23] The Applicant relies on R. v. R.(D.), at paras. 41-45, as a case where the court allowed evidence which was intended to impeach the credibility of the Crown’s child witnesses, by permitting cross-examination of the child therapist relating to the interview techniques which were employed, and which the accused alleged coached and manipulated the witnesses’ evidence. In that case, the court applied the test in Hitchcock, supra, and found that the evidence was not collateral, and admitted it.

[24] The Applicant also relies on 2012 ONSC 882, para. 15 where the court identified certain exceptions to the collateral fact rule, including:

• proof of bias, interest or corruption denied by the witness;
• proof of a prior inconsistent statement not admitted by the witness;
• proof of a prior conviction not admitted by the witness;
• disproof of a denial of a reputation for lying or untruthfulness; and
• disproof of a denial of a physical or mental defect relating to the capacity or likelihood of the witness telling the truth.

[25] The Applicant admits that the proposed evidence here does not fall within any of the stated exceptions, but rather argues that they suggest that the probative value of the evidence is such that it escapes the reach of the collateral fact rule.

[26] In R. v. C.F., 2017 ONCA 480, at paras. 58-66, the court allowed collateral evidence which related to a prior complaint by the same complainant against the same accused person. The court found that the probative value of the evidence outweighed its prejudicial effect, and noted that the proposed evidence was limited, specific to one event between one of the complainants and the same accused, that it did not unduly lengthen or complicate the proceedings, nor did it “introduce a slideshow of ancillary issues that had to be resolved”.

[27] Finally, the Applicant relies on R. v. Horan, 2008 ONCA 589, at para. 50 for the proposition that it ought to be open to the Applicant to use evidence of drug use and trafficking to challenge the complainant’s credibility. In Horan, the evidence at issue was related to the complainant’s alleged drug use on the day that the attack took place (in the context of a robbery) and so it was entirely intertwined with the allegations, and therefore with the elements of the events.

Analysis

Ms. Crozier and the Probative Value of the Evidence

[28] The Crown argues that there are many reasons to consider the admission of Ms. Crozier’s evidence with caution. It argues that the evidence of Ms. Crozier is so replete with issues that it ought not be put before the jury. The Crown suggested that in the circumstances here, Ms. Crozier’s evidence might be considered in light of the same factors that would be relevant to a Crown witness whose testimony would attract a Vetrovec warning.

[29] I have noted the following concerning issues exist with the proposed evidence of Brittany Crozier, with a view to assessing the probative value and to assessing how the calling of the evidence might impact the trial, and what issues it would introduce into the proceeding:

• The evidence has come to light for the first time, three years after the alleged events, and at a time after the two women have become estranged.
• Ms. Crozier has previously declined to cooperate with the Board of Investigation’s inquiry and with the police investigation.

[30] There is nothing before me which suggests that any of the new evidence of Brittany Crozier is corroborated– save for limited aspects of it, which the jury will have in any event, and which I discuss in some detail later in these reasons. Rather, the proposed evidence appears to contradict some other statements Ms. Crozier previously made in relation to the same issues.

[31] Much of the evidence of Ms. Crozier is vague and unspecific, as detailed below.

• I found Ms. Crozier’s evidence to be internally inconsistent. The affidavit in support of this motion was sworn on March 6, 2025, less than one week before her in court testimony. In the affidavit, Ms. Crozier swore that “During our time together, I personally observed C.D. consuming an extensive amount of drugs and intoxicants, including methamphetamine, cocaine, alcohol, suboxone, marihuana, weed gummies and cigarettes”, and that “C.D. was under the influence of drugs on a near-daily basis while housed in the minimum-security unit.” At the hearing Ms. Crozier stated in chief that she made these observations “daily”, but then she testified as to the totality of the drug use stated above. There was no explanation provided as to how, for example, the three occasions of alcohol consumption constituted “an extensive amount of alcohol”, or what drug use she observed on a “near daily basis”.
• In the March 6 affidavit, Ms. Crozier swore that she “personally observed C.D. drunk on hand sanitizer on many occasions”, and, in relation to drugs, that C.D. “continued extensive illegal substance use while in the medium security unit”. During the motion, Ms. Crozier’s evidence did not suggest that she ever noted that C.D. was drunk. She testified that on one occasion C.D. told her that she had hand sanitizer in her water bottle, and that Ms. Crozier sniffed the contents of the bottle and confirmed it was true. Ms. Crozier gave hearsay evidence that other inmates invited her to consume hand sanitizer with them and C.D. – and that she declined. And she testified to seeing C.D. carrying her water bottle frequently.
• As for the drug use, whereas the affidavit differed from Ms Crozier’s evidence on this motion. I find that the March 6 affidavit grossly exaggerated in relation to the actual evidence on these issues and as such, was inconsistent with her in court testimony.
• Ms. Crozier testified at the motion that she lied to her friend on intercepted calls, when she told him that a guard was warning her when she was up for urinalysis. She testified that she lied to him “for clout” because she knew he had also been in custody.
• Ms. Crozier testified that she lied to the BOI when she told them that the Applicant provided her and the complainant with weed gummy bears. She explained that she lied because she felt vulnerable and was trying to protect herself. She gave no explanation as to how disclosing that a correctional officer was providing her with contraband would reduce her vulnerability at the institution.
• Ms. Crozier testified that she consumed drugs many times at the institution, and that she has trafficked in drugs at the institution. She testified that she supplied suboxone to the complainant, who had come to her because she knew that Ms. Crozier was able to get drugs for people.
• Ms. Crozier admitted to being transferred to maximum security, and to having been the subject of a number of institutional charges.
• Ms. Crozier testified that she consumed drugs and alcohol alongside the complainant on most occasions, with the exception of the three times that Ms. Crozier alleges that the complainant consumed methamphetamine.

[32] I have considered also that there will be considerable bad character evidence that the jury will hear in relation to the complainant, via the complainant herself, including:

• the fact that she is an inmate in a federal institution and serving a 7 year sentence for trafficking in fentanyl.
• There will be evidence that the complainant failed a urinalysis screen that showed suboxone in her system while she was in medium security.
• There will be evidence that the complainant consumed cannabis with Ms. Crozier and another inmate and was moved to medium security.
• It is expected that the complainant will admit that she consumed cocaine on at least one occasion while at the institution; There is evidence that, on 22 January 2025, the complainant stated to Detective Burnham, that she had never smoked marijuana while at the medium security unit [at GVIW], but she did use cocaine. This contradicts her previous statements about being drug free at GVIW, and also contradicts a prior statement that she had smoked marijuana with other inmates.
• It is expected that in giving her evidence about the allegations, the complainant will disclose that she participated in the commission of numerous institutional infractions including possession of contraband including food and cigarettes.

[33] It has already been established in prior pretrial motions that the complainant may be cross-examined in relation to the particulars of her conviction for trafficking, even if she admits the conviction, and that she may be cross-examined in relation to allegations that she was involved in the drug subculture at the institution, including drug trafficking.

Probative Value of the Evidence

[34] Ms. Crozier testified to spending almost all day, every day with the complainant, and purports therefore to provide a complete picture of the complainant’s consumption of drugs and alcohol during the time she was in minimum security. In totality, the complainant is alleged to have consumed about a half bottle of vodka, a half bottle of rum, and some cans of beer, over a four month period. Accepting that the evidence of Ms. Crozier could be accepted by the jury, I reject the argument that I am able to conclude that this quantity of alcohol impacted the reliability of the disclosure she made to other inmates, or her ability to recall the events.

[35] Similarly, the consumption of methamphetamine on three unspecified dates, plus cannabis on up to three occasions, do not allow me to conclude that the consumption could reasonably be argued to have impacted the reliability of her evidence.

[36] The cocaine consumption is said to have occurred with the greatest frequency, but the evidence suffers from similar deficiencies: there is no timeline as to over how many weeks or approximately how many times in total the cocaine is said to have been delivered. The evidence was that the cocaine was delivered at least once per week, and that 2-3 grams were delivered each time. Ms. Crozier also noted that this amount was shared between herself and the complainant. There was no expert evidence as to the impact of the consumption of 1–1.5 grams of cocaine over the course of one week on an individual. Without other evidence, I can only conclude that the quantities alleged are low, and I am unable to conclude that it would be reasonable to suggest that this would have impacted the reliability of the complainant’s evidence.

[37] I note that if Ms. Crozier and the complainant consumed the drugs and alcohol as alleged, they appeared to retain discipline over that consumption, in their conscious decision not to consume between the second week of the month and the 22nd of each month, and not to consume prior to visits from family, and not to attend at the front desk when they were under the influence. Ms. Crozier testified that she also refrained from consumption during the times that she worked in the institution’s library. This ability to consume by conscious choice at specified times, suggests that the consumption, if it occurred, was not the extravagant and extensive use as suggested by the proposed evidence of Ms. Crozier’s.

[38] I note again that there was no specific evidence as to dates of consumption of any of the alcohol, methamphetamine, cannabis or cocaine such that it could not be determined whether the allegations of consumption coincided with the dates of the alleged sexual assaults or with the dates of disclosure of those alleged assaults, although I note that the Crown indicates that three of the four assaults are alleged to have occurred at the end of the month, when, on Ms. Crozier’s evidence, they would have been using drugs.

[39] With regard to the value of the evidence in assessing the complainant’s reliability, I have considered the two time periods individually. I have concluded that the allegations of drugs and alcohol alleged to have been consumed while in minimum security do not represent the type of “continuous and pervasive” drug and alcohol use that is suggested in the Applicant’s materials. There was no expert evidence called on this issue. As such, I find the probative value of this proposed evidence is low.

[40] Ms. Crozier’s evidence of the complainant’s consumption while in medium security amounts to using suboxone on two occasions, and there is only direct evidence of consumption of hand sanitizer on one occasion.

[41] As with the minimum security evidence, there is no specificity as to dates or quantity.

[42] I conclude that the probative value of the evidence in relation to the time in medium security is also low.

Conclusion

[43] The proposed evidence is clearly in relation to collateral issues and is subject to the general exclusionary rule: the credibility of non-accused witnesses, in relation to matters which do not go to the offence charged, is a collateral issue. Evidence may not be called to disprove witnesses on collateral issues, for the sole purpose of impeaching their evidence.

[44] I exclude the evidence on the basis that it is clearly collateral, and that it is not subject to any exclusionary rule.

[45] I note however, that in any event, I find that proposed evidence has minimal probative value, even on the issue of impeaching the complainant’s credibility, while at the same time it presents a clear risk of confusing and distracting the jury.

[46] In relation to Ms. Crozier’s evidence as a whole, given that it is new, given that it is entirely uncorroborated, and given the numerous issues which arose from her evidence at the motion, I conclude that the calling of Ms. Crozier’s evidence would serve to distract and confuse the jury, and would indeed create an entirely separate set of credibility issues for the jurors to resolve. It would lengthen the trial.

[47] I find that the evidence would do little other than to be an excessive and unwarranted attack on the complainant, without furthering the trial goals sufficiently to warrant such intrusion.

[48] I note that even if adopting the approach taken by authors David M. Paciocco (as he then was) and Lee Stuesser in The Law of Evidence, 3rd ed. (Toronto: Irwin Law, 2002) this evidence could not pass the test, which is stated as follows: is the evidence offered of sufficient value and of sufficient importance to the issues before the court that it ought to be heard having regard to the necessary court time required, potential confusion of issues, and any unfairness and prejudice to the witness?

[49] As I have already ruled in previous pretrial motions that the Applicant is permitted to cross-examine the complainant on similar areas that are at issue in this application such as drug use and drug trafficking, and I have already reviewed some of the bad character evidence that is available to the Applicant, I find that any additional probative value this evidence could offer in the jury’s assessment of the complainant’s credibility or reliability would be minimal, and that this would not therefore be a circumstance in which the exceptional calling of collateral evidence is warranted.

[50] In particular, the evidence would certainly distract and possibly confuse the jury. The calling of the evidence would put the credibility of Ms. Crozier and that of the complainant directly in issue on matters that are unrelated to the guilt or innocence of the Applicant and, to borrow from the words of Watt J, “the sideshow would almost certainly take over the circus.”

S. Antoniani

Released: April 14, 2025