Ontario Superior Court of Justice

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

BETWEEN:
His Majesty the King
Respondent

• and -
  Christopher Burnette
  Accused/Applicant

B. Schnell, for the Crown
D. Silvestro, for the Crown
M. Kruse, for the Accused

Heard: January 29, 2025
Reasons delivered orally on March 4, 2025
Released: April 14, 2025

The Honourable Justice S. Antoniani

Overview

[1] These are reasons in relation to two related pretrial motions:

1. An application from the Crown to be permitted to introduce prior consistent statements of the complainant, and
2. The admission of statements from each of the complainant and Mr. Burnette, as res gestae, and, in the case of Mr. Burnette only, as after-the-fact conduct.

Prior Consistent Statements

[2] This is a Crown application to admit two pieces of evidence, as exceptions to the rule against the admission of prior consistent statements.

[3] Prior consistent statements of a witness are not typically admissible at a criminal trial. Prior consistent statements are a combination of two legal elements: the hearsay element (the truth and contents of the statement), and the declaration element (which refers to the fact that the statement was made). R. v. C. (M.), 2014 ONCA 611 at para. 59.

[4] The hearsay element of prior consistent statements is never admissible to bolster the witness’ credibility. The rationale is that a consistent statement may still be false no matter how many times it is repeated.

[5] In this case, the issue of admissibility of the prior consistent statements and the probative value relies upon the declaration element. That is, the Crown argues that the probative value of the statements is the fact that they were made, at a particular time and in particular circumstances.

[6] In R. v. Dinardo, 2008 SCC 24, para. 38, the Supreme Court found that the way in which the complaint comes forth can add or detract from the logical cogency of the evidence and act as a useful tool in the assessment of truthfulness. This narrative may also help explain any delay in reporting and how the victim’s experience influenced her course of action. Narrative can help create a logical framework for the evidence and help us understand a witness’ story. Narrative is merely an aid in understanding the case. As a whole, the narrative exception is a convenient label for instances where a prior consistent statement has some probative value and falls outside the traditional exceptions of admissibility. Where narrative is admitted as circumstantial evidence to assess credibility and reliability, care must be taken to ensure that the contents of the prior consistent statement are not being used to corroborate the evidence, but rather it is the surrounding circumstances which are used to evaluate the credibility and reliability of the witness's in-court testimony.

[7] In R. v. Curto, 2008 ONCA 161, para. 34, the Ontario Court of Appeal commented that although it is not always necessary to know how the case came to the attention of the police, the fact that a statement was made and the context in which it was made can help assess a witness’s credibility. It may also explain why little was done by a complainant to terminate abuse or bring an accused person to justice.

[8] The parties here both agree that, in the event that Mr. Burnette alleges recent fabrication and/or a date-specific motive to fabricate, then evidence of prior consistent statements made by the complainant would become admissible in evidence on the declaration element exception.

The Crozier Intercepts

[9] The first item for consideration is the evidence of Investigator Kotsos, in relation to what she heard during intercepted calls between inmate Crozier and people Crozier spoke to, primarily her relatives, during a period where Crozier’s outgoing calls from the institution were being intercepted pursuant to an unrelated criminal investigation.

[10] To summarize, Kotsos was tasked to review the intercepted calls between Crozier and others. In reviewing those intercepts, Kotsos observed a series of conversations between Crozier and others which lead her to be concerned that there may be a sexual relationship between an employee of the institution and an inmate. Examples of the observations Kotsos made include the following:

• Crozier stated that her friend “had a guard wrapped around her finger”, there was a guard who would inform her about the contents of other inmates’ reports, that she had “somebody telling us if we’re good for urinalysis” and that someone was fucking a guard and got away with it.
• On one intercept, Crozier’s boyfriend asked her if “Chris-y” boy was still “banging” C.D (the complainant); a minute later, ‘Chris’ was identified as a correctional worker.
• In another conversation that took place a few days later, Crozier’s mother said: “I really wanted fucking C.D. to end up pregnant and see what they would do. I’m just curious what they would do”.

[11] The intercepted communications are hearsay. They are primarily Crozier reporting to others about Crozier’s purported knowledge of details of a sexual relationship between the Respondent and the complainant. Importantly, during the calls, Crozier does not attribute her knowledge to any source, and specifically does not attribute the information as having been disclosed to her by the complainant. As such, in my view, the intercepts of inmate Crozier’s calls cannot be considered to be prior consistent statements of the complainant.

[12] The parties agree that if Mr. Burnette raises a defence of recent fabrication, and if Ms. Crozier were to be called to testify that the complainant did disclose specific things to her, that evidence of the prior consistent statement would be admissible.

[13] The Crown also argues that Kotsos’ observations of the calls form an important part of the narrative which explains how the complaint came to the attention of the authorities, and how and in what circumstances the complainant came to make her disclosure to the authorities.

[14] In the facts of this case, given the complicated way in which the complaint did come to the attention of the authorities, and how and when the complainant made her disclosure to them, I agree that an understanding of the narrative will be important to the jury’s ability to fairly assess the evidence, and in particular to assess the reliability and the credibility of the complainant.

[15] Although I am mindful that it is not always necessary to know how and when a complaint came to the police, in the facts before me, I find that, without that narrative, there would be a significant gap. The jury would likely be left with a false impression that the investigation began with the complainant’s disclosure, and, even absent a defence of recent fabrication, it could unfairly impact on the jury’s assessment of the complainant’s evidence.

[16] The details of the intercepted communications are prejudicial, and do not on their own have any hallmark of reliability that would allow them to be admissible.

[17] As the stated aim of the narrative is strictly to explain the chronology of events which lead to the complaint’s disclosure, Ms. Kotsos will be permitted to testify that she was tasked to review the intercepts, and that those intercepts were between Ms. Crozier and third parties. She may explain that in reviewing the intercepted conversations she heard information which led her to believe that there might be an issue of an employee of the institution involved in a sexual relationship with an inmate. Upon so concluding, she reported her concerns and an investigation was commenced.

[18] My overview of the narrative is not intended to be a script for Ms. Kotsos, but rather an outline of the type of information may be presented as probative and necessary to ensuring the jury’s appreciation of the true chronology and narrative. I direct the Crown, if they wish to introduce some evidence of this narrative either via Ms. Kotsos, or in some other fashion, to prepare an outline of proposed narrative evidence.

[19] The outline should be forwarded to defence counsel and discussed. If the Crown and Defence are not able to agree to a narrative based on this ruling, then the Crown may provide me with the proposed narrative at the outset of the trial for further and final consideration and direction.

[20] I am mindful that if the information is introduced through Ms. Kostos, it is not reasonable to require her to testify according to a strict scripting in this area. The Crown will make its best efforts to prepare her according to this ruling.

After-the-Fact and Excited Utterances

[21] There are two items of after-the-fact and excited utterances which the Crown wishes to adduce at trial. Only one, that is the audio and contents of a telephone call between the complainant and her boyfriend Mr. McKenzie, on April 14, 2022, remained in issue at the hearing of the motions.

[22] Some background is necessary to assess the admissibility of the proposed evidence:

[23] On April 6, 2022, the complainant became involved in a physical altercation with inmate Baksh. The nature of the altercation is irrelevant. The next day, Security Intelligence Officer Kotsos interviewed Baksh, who informed her that the complainant had a sexual relationship with Mr. Burnette. SIO Kotsos then spoke to the complainant. The complainant admitted to a sexual relationship that started about October 2021 and ended when she was transferred out of the minimum security unit of the institution, in December 2021.

[24] As a result of the complainant’s disclosure, a 30-day intercept for the complainant’s telephone communications was obtained on April 7, 2022, with some expectation that the intercepts might provide additional evidence as to the veracity of the allegations.

[25] The investigation proceeded, and, on April 14, 2022, Assistant Warden of Operations David Tissawak advised Mr. Burnette that there were “allegations made of inappropriate sexual conduct” and that Mr. Burnette was being suspended with pay until the situation could be investigated. Mr. Burnette requested more information. He was advised that this was all that was known at that time. Mr. Burnette became emotionally elevated and upset and kept asking for more information. Attempts were made to calm Mr. Burnette down. During the exchange, Mr. Burnette commented, “I’m going to be known as the next Ricardo”. Mr. Burnette also asked whether the complainant was a “kite” (referring to mail from the outside) or an inmate. Mr. Burnette was told that this information was not known.

[26] During the same April 14th meeting, Mr. Burnette was provided with an opportunity to use the phone in private. Mr. Burnette called the complainant. The parties agree that the call occurred, and that the fact of the call is admissible. They agree that the complainant’s evidence as to the particulars of the conversation is also admissible, as after-the-fact conduct.

[27] It is also documented that within minutes of receiving the call from Mr. Burnette, the complainant called her boyfriend, Mr. McKenzie. That call was intercepted pursuant to the 30-day authorization, and both a recording and a transcript of the call are available.

[28] The Applicant seeks a ruling on the admissibility of the audio-recording of the complainant’s disclosure of the allegations against Mr. Burnette to her boyfriend on April 14, 2022. The Applicant argues that it should be permitted to put the audiotape of the call into evidence, and that there should be no restrictions on the ability of the complainant and Mr. McKenzie to testify in relation to it. The Applicant acknowledges that the audio recording is a prior consistent statement of the complainant, but argues that it should be admissible as a tool with which the jury can better assess the credibility of the complainant’s testimony regarding her call with Mr. Burnette.

[29] The complainant placed this call to Mr. McKenzie within minutes of being informed by the Respondent that the authorities were aware of their relationship and that he was being suspended. Although the call to Mr. McKenzie was captured via the intercept authorization, the authorization did not capture incoming calls. As such, there is no recording of the call between the complainant and Mr. Burnette. If the complainant’s version of that call is accepted, it is after-the-fact conduct from which the jury can draw an inference of the Respondent’s guilt.

[30] Finally, Mr. McKenzie’s cell phone records confirmed and documented Mr. McKenzie’s evidence that, shortly after the intercepted call between the complainant and Mr. McKenzie, later on the same date, Mr. Burnette called Mr. McKenzie.

The April 14, 2022 Phone Call from Burnette to the Complainant

[31] The first item was a phone call made by Mr. Burnette to the complainant, on April 14, 2022, the date that he was advised of his suspension and the investigation. Mr. Burnette concedes the fact that, within minutes of being advised that allegations of he made that call and he concedes that it is after-the-fact conduct which may be put to the jury. The Crown will rely on the complainant’s version of the conversation during the call. If her evidence is accepted, it may be considered by the jury to amount to evidence of Mr. Burnette’s guilty mind at the time.

[32] Mr. Burnette will challenge the complainant’s version of the telephone conversation. In addition, he anticipates that if he chooses to testify, he will provide the jury with an alternate version of what was said during that call, which would contradict the complainant’s evidence, and which, if believed, does not amount to evidence of consciousness of guilt.

[33] The parties agree that all testimony in relation to this call may go into evidence.

The Complainant’s Call with McKenzie, on April 14, 2022

[34] The Crown seeks an order allowing it to play the audio of an intercepted telephone call from the complainant to her boyfriend Mr. McKenzie, on April 14, 2022. It is proposed that the call is a prior consistent statement of the complainant, that it is res gestae, or an excited utterance of the complainant, akin to a 911 call, and that the statement is relevant to provide a basis upon which to assess the complainant’s version of the conversation with Mr. Burnette.

[35] The criteria for admissibility of res gestae are: (1) the statement is contemporaneous (or close to contemporaneous) to an unusual, overwhelming event, and; (2) the event left the declarant under pressure or emotional intensity preventing the opportunity to concoct or mislead the recipient. Clearly, the speaker’s state of mind must be considered and the statement must be made in a natural manner and not under circumstances of suspicion.

[36] The Respondent submits that the complainant’s intercepted phone call to Mr. McKenzie is a prior consistent statement and is inadmissible. The defence challenges the admissibility of the audio intercept on the grounds that it does not meet the criteria for: (1) the res gestae exception, (2) the principled approach to admissibility or (3) narrative as requested by the Crown.

[37] The parties agree that, in the event that Respondent raises a defence of recent fabrication and/or motive, the details of the call may become relevant. However, the Respondent argues that the audio recording of the call should not be produced at trial, as even if the contents are relevant, the call itself would be a prior consistent statement, and oath helping.

[38] Having considered the submissions of counsel and the evidence available, I do not agree that the call meets the criteria for the res gestae exception. Although the call was made on the heels of the complainant receiving a call from Mr. Burnette, during which call the complainant states Mr. Burnette was agitated and made suggestions that he would put a gun to his head, the particulars of the call from the complainant to Mr. McKenzie lack some of the specific features of 911 calls or other res gestae, which make them reliable and admissible exceptions.

[39] I make this finding having heard the call and reviewed the transcript, and observed the following: The call from Mr. Burnette came 7 days after the complainant made her disclosure to the authorities. The complainant would have likely expected that the institution would act on the information that she had disclosed. As per the complainant’s evidence, Mr. Burnette had previously suggested to her that any disclosure of their relationship could lead him to self harm, another factor which must have been understood by her upon making the disclosure.

[40] Although it is also likely that the receipt of the actual call from Mr. Burnette on April 14th, agitated or excited the complainant, I make the following observations of her subsequent call with Mr. McKenzie: The call was 17 minutes long. The complainant did not initiate the call and then immediately make agitated or excited utterances about the call from Mr. Burnette. Instead, she appeared to provide the information to Mr. McKenzie in a measured way, conscious that there were people around her, and intentional or even reluctant about her disclosures. The complainant was also confined by her physical circumstances when speaking on the phone; she was at GVI where people were around her. She seemingly did not want these people to hear her conversation and therefore had to consider what she was sharing with Mr. McKenzie. During the phone call, it is clear that the complainant had turned her mind to this; she suggested to Mr. McKenzie that she was not in a place where she could speak freely.

[41] It is certainly true that the conversation is a prior consistent statement of the complainant, in relation to the fact of having had a sexual relationship with Mr. Burnette, and it also appears to corroborate some aspects of her account of the immediately prior telephone conversation with him.

[42] However, the complainant’s evidence will not remain in a silo. It will impact other evidence the jury will hear. The admissibility of the intercepted call must be considered in relation to how any permitted testimony, or lack of testimony, will impact on the credibility of the anticipated evidence of other witnesses, and, in this instance, the evidence of Mr. McKenzie.

[43] It is anticipated that Mr. McKenzie will testify that Mr. Burnette called him on April 14, 2022, shortly after the call between Mr. Burnette and the complainant, and after the subsequent call between the complainant and Mr. McKenzie.

[44] It is anticipated that Mr. McKenzie will testify that during the conversation, Mr. Burnette apologized for the situation with the complainant, and made admissions that there was a sexual relationship between himself and the complainant.

[45] Mr. Burnette concedes that fact that he called Mr. McKenzie, but he intends to challenge Mr. McKenzie in cross-examination as to his version of what was said during the call.

[46] The jury will be required to assess the credibility of Mr. McKenzie’s evidence, and, if Mr. Burnette testifies, to assess the competing versions. If Mr. McKenzie is required to testify without making any reference to the call from the complainant, the gap would certainly impact the jury’s assessment of his credibility.

[47] I agree that the Crown has shown the need to introduce fact of the call, as well as a brief narrative as to what occurred during the call, in order for the jury to make sense of and assess the evidence of each of the complainant and Mr. McKenzie, and any competing testimony.

[48] The complainant and Mr. McKenzie are permitted to give a narrative evidence of the fact of the call between them.

The Complainant

[49] The complainant’s evidence may include the fact of the call to Mr. McKenzie, the fact that she disclosed that she’d had a sexual relationship with Mr. Burnette, the fact that she had just spoken to Mr. Burnette, and the fact that she provided Mr. Burnette with Mr. McKenzie’s phone number.

Mr. McKenzie

[50] Assuming that the defence has not raised recent fabrication or motive through cross-examination of the complainant, then Mr. McKenzie may testify to the fact of having received the complainant’s call, that the complainant disclosed a sexual relationship with Mr. Burnette, and that he knew Mr. Burnette had his number and may contact him.

[51] I have also considered the difficult issue of how and whether the evidence of either the complainant or Mr. McKenzie might be limited during cross-examination. These are civilian witnesses, and I am concerned that attempting to place specific limitations on their responses during cross-examination may well result in their evidence appearing to lack credibility. Of course, I put no restrictions whatsoever on Mr. Burnette’s right of cross-examination on the issue of either phone call. In circumstances where neither recent fabrication nor motive are alleged, during cross-examination, the complainant and Mr. McKenzie may provide further detail about the conversation between them, provided that the detail is reasonably responsive to the questions asked.

[52] If recent fabrication is alleged, it is conceded that the testimony in relation to the call from the complainant to Mr. McKenzie is not restricted in relation to either witness.

[53] I have considered the submissions of counsel regarding playing the conversation for the jury and given my determination on the evidentiary issues above, I have determined that its probative value is limited. The two witnesses will testify, and the audiotape remains a presumptively inadmissible prior consistent statement. The audiotape of the conversation shall not be put into evidence.

The Ricardo Utterance

[54] The second utterance in issue was made on April 14, 2022, when, upon learning that allegations of inappropriate sexual conduct had been made, Mr. Burnette stated, during the meeting with Tissawak, “I’m going to be known as the next Ricardo”.

[55] The Applicant states that this statement constitutes res gestae. The Crown argues that the statement “I’m going to be known as the next Ricardo”, considered together with the call to the complainant minutes later, constitutes after-the-fact conduct which is consistent with Mr. Burnette’s guilty mind.

[56] The defence submits that Mr. Burnette’s alleged comment does not reflect consciousness of guilt. It is argued that this evidence should not go before the jury as evidence of a guilty mind. Mr. Burnette argues that this statement should only be adduced by the Crown as narrative to set the stage or establish the context for Mr. Burnette’s subsequent call to the complainant.

[57] During motions I was advised that Mr. Burnette intends to rely on the statement as part of his own narrative to explain the context for Mr. Burnette’s subsequent call to the complainant. He argues that the statement shows his agitated state, and the fact that he was aware of “rumours” and that he turned his mind immediately to calling the complainant, as the only person he knew could clear him of the allegations.

[58] After-the-fact conduct is presumptively admissible circumstantial evidence of what the accused said and did after an alleged offence. A fact finder is permitted to draw particular inferences based on a person’s words or actions, and the evidence is not subject to any special rule of admissibility. Most after-the-fact conduct is unremarkable narrative evidence requiring no special instruction.

[59] After-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person. R. v. Calnen, 2019 SCC 6.

[60] The Court has a residual discretion to exclude after-the-fact conduct evidence where its prejudicial effect outweighs its probative value.

[61] Mr. Burnette argues that the statements do not represent consciousness of guilt, arguing that it is completely understandable that a prison guard who has been advised he has been suspended and is under investigation for allegations of inappropriate sexual conduct, is going to think that he will become known as the next Ricardo. Ricardo was well known to the Respondent and his coworkers, as a former prison guard accused of a sexually inappropriate relationship with an inmate.

[62] Given that the conduct is presumptively admissible, and that Mr. Burnette has made it clear during argument on the motion that he intends to rely on the statement himself, there is no longer any issue as to whether the statement should be admitted.

[63] The Crown may adduce the statement through Mr. Tissawak, who can report the making of the statement. It was not suggested that anyone would attempt to elicit from Mr. Tissawak an opinion as to the relevance or meaning of the statement, and I will emphasize that Mr. Tissawak’s opinion is irrelevant and therefore not admissible evidence.

[64] As admissibility is not contested, the argument is limited to what uses will the jury be told that they can make of the statement. There are clearly competing inferences which may be drawn by a jury.

[65] What use the jury will be invited to make of the statement, and what limiting instructions, if any, may be appropriate, will largely depend upon the totality of the evidence at trial. Unless and until Mr. Burnette testifies, only the fact of the statement will be before the jury.

[66] The particulars of the jury instruction is, in my view, better left to trial, after the evidence is heard.

Revisiting the Rulings Herein

[67] As with my other rulings regarding admissibility of bad character evidence, I am conscious of the fact that I have made these rulings upon representations of the anticipated evidence available to the parties. If the evidence as adduced at trial varies such that either party believes the considerations here must be revisited, they are free to raise the relevant issues again during the trial.

Released: April 14, 2025

Justice S. Antoniani