Reasons for Decision
Court File No.: CR-23-101712-CJ
Date: 2025-04-14
Ontario Superior Court of Justice
Between:
His Majesty the King
(B. Schnell and D. Silvestro, for the Crown)
Crown/Respondent
- and -
Christopher Burnette
(M. Kruse, for the Accused)
Accused/Applicant
Heard: March 4, 2025
The Honourable Justice S. Antoniani
Overview
[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.
[2] The Applicant is charged with one count of sexual assault, contrary to s. 271 of the Criminal Code of Canada, RSC 1985, c C-46, and one count of breach of trust in connection with the duties of his office contrary to s. 122 of the Criminal Code. This matter is scheduled for a three-week jury trial commencing March 10, 2025.
[3] The court heard both this s. 278 application together with a bad character application and another s. 278 application relating to urinalysis reports due to their factual overlap. On January 31, 2025, I delivered oral reasons relating to bad character and the admission of those urinalysis reports. I reserved my decision on the issue of whether the intercepts of the complainant’s telephone calls are records under s. 278. These are those reasons.
Background
[4] During the course of the institution’s investigation into allegations that there was an inappropriate sexual relationship between the Applicant and the complainant, and that the Applicant was bringing contraband into the institution for the complainant, authorization was obtained to intercept the complainant’s outgoing telephone calls, for the purpose of gathering evidence.
[5] All of the complainant's outgoing calls were intercepted for a 30-day period. There are numerous calls and I advised that the majority of them are to the complainant’s boyfriend, and to her mother.
[6] The intercepted communications are already in the possession of the Applicant, as they were provided to him by the Crown as disclosure. As such, this Application is governed by s. 278.1 of the Criminal Code and, if the communications are found to be “records”, s. 278.92 of the Criminal Code.
[7] The particular communications which are the subject of this application do not involve prior sexual conduct of the complainant. As such, s. 276 of the Criminal Code is not engaged.
[8] The Applicant requests an order permitting cross-examination of the complainant using transcripts from a selection of the intercepted calls.
Issues
[9] There are two issues to be resolved:
a) Do the intercepted communications in question meet the definition of “records” pursuant to s. 278.1 of the Criminal Code?
b) If so, does the evidence satisfy the test for admissibility as set out in stage two of the s. 278 test? Specifically, is the evidence relevant to issues at trial and does it have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice?
Decision
[10] For the reasons that follow, I find that the intercepted communications meet the definition of “records” pursuant to s. 278.1 of the Criminal Code. Further, having considered all of the factors I am directed to, I find that the selected communications/areas of potential cross-examination have significant probative value which is not outweighed by the danger of prejudice to the proper administration of justice, and that some cross-examination, as particularized below, is permitted.
The Legislative Regime
[11] The Application engages a consideration of the following provisions of the Criminal Code:
Definition of Record
278.1 For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence. [Emphasis added.]
Admissibility – Accused in Possession of Records Relating to Complainant
278.92 (1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences: [sexual assault is included in the enumerated sections.]
Requirements for Admissibility
(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,
(a) [excluded as this subsection relates to s. 276 applications]
(b) in any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
[12] Clearly, in order to find evidence to be admissible pursuant to s. 278.92(2), I must find that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
[13] Pursuant to s. 278.92(3), in determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account:
- (a) the interests of justice, including the right of the accused to make a full answer and defence;
- (b) society’s interest in encouraging the reporting of sexual assault offences;
- (c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;
- (d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
- (e) the need to remove from the fact-finding process any discriminatory belief or bias;
- (f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
- (g) the potential prejudice to the complainant’s personal dignity and right of privacy;
- (h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
- (i) any other factor that the judge, provincial court judge or justice considers relevant.
[14] In addition to the above noted provisions of the Criminal Code, which govern my consideration of the application, federal prison institutions are governed in their ability to intercept telephone calls of inmates, pursuant to the Commissioner's Directive 568-10: Interception of inmate communications (“CD 568-10”). The guidelines accompanying this directive, Guidelines 568-10-1: Interception of inmate communications (“GL 568-10-1”), are also relevant to consider. Generally, Commissioner’s directives and the accompanying guidelines are developed pursuant to ss. 97 and 98 of the Corrections and Conditional Release Act, SC 1992, c 20 and the accompanying regulations. Though they are referred to as directives and guidelines throughout these reasons, they have been developed pursuant to and in accordance with federal legislation.
Analysis
Do the records in question meet the definition of “records” pursuant to s. 278.1 of the Criminal Code?
[15] In this case, I understand that the intercepted communications were disclosed to the Applicant by the Crown, as disclosure, without notice to the complainant, and without an application to the court before the Applicant was given possession of them, as would have been required under 278.3 of the Criminal Code.
[16] The Crown has since taken the position that the communications are in fact records as defined in s. 278.1, and, as they are now in the possession of the Applicant, this motion was brought under the s. 278.92 regime, as “documents in possession of the accused”.
[17] The definition of “record” will only capture materials that come within the enumerated categories, or that otherwise contain information of an intimate and highly personal nature that is integral to the complainant’s overall physical, psychological, or emotional well-being: see R. v. J.J., 2022 SCC 28, para 40.
[18] The Crown’s position is that the intercepted communications fall under an enumerated category, specifically as “records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature” because they are records which belong to the institution, who obtained them via an authorization, and the institution is subject to legislation governing the disclosure of the records.
[19] There is room for some debate as to how to interpret the phrase ‘reasonable expectation of privacy” in advance of the enumerated categories, and an assessment of reasonable expectation of privacy is a necessary precondition to finding something to qualify as a record under this section. In addition, there may be room for debate as to whether the last type of record, that of personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, is a type of record intended to be treated as a separate type of enumerated record which does not require a “reasonable expectation of privacy” analysis, even if the others do, since it intentionally described this type of record only as containing “personal” information.
[20] In considering paragraph 39 of J.J., I have concluded that the court intended that all of the records enumerated under s. 278.1 are presumed to involve a reasonable expectation of privacy. As such, I conclude that if the intercepts are records containing “personal information the production or disclosure of which is protected by any other act of parliament or a provincial legislature” then they fall under this regime.
[21] The CD 568-10 and the GL 568-10 govern the obtaining of authorization for the intercept of telephone calls from federal institutions. The Corrections and Conditional Release Regulations, SOR/92-620 (the “CCRR”) inform how the directive and guidelines are applied. Authorized institutional personnel may be granted authorization to intercept calls on satisfying the warden of the following, pursuant to s. 94(1) of the CCRR:
- (a) that the communications contain or will contain evidence of:
- i) an act that would jeopardize the security of the penitentiary or the safety of any person, or
- ii) a criminal offence or a plan to commit a criminal offence; and
- (b) that interception of the communications is the least restrictive measure available in the circumstances.
[22] Even if authorization is given to intercept these communications, the disclosure of these recordings is only permitted in certain circumstances. Further, the CD-568-10 also limits the production and disclosure of the information which is collected, in a number of ways, including:
The information acquired through an interception activity is collected for the purpose of preventing acts that would jeopardize the security of the penitentiary or the safety of any person, pursuant to subparagraph 94(1)(a)(i) of the CCRR.
In the event that other information of a personal nature is intercepted, the person conducting the interception is under an obligation to maintain the confidentiality of the contents of the communication and the information must be used only for the purpose for which it was collected. [Emphasis added.]
[23] There can be little doubt that records of all telephone calls made during a 30-day period, which include conversations with one’s partner, mother, friends, and family, are calls which contain information that would be considered personal.
[24] Counsel for the complainant argues that, further to the CCRR and its directives and guidelines, the institution would be required to comply with the Privacy Act, RSC 1985, c P-21, prior to disclosure of any records it generated.
[25] Although I have concluded that there is no need to conclude whether there was a reasonable expectation of privacy in the records, I note for the purposes of my consideration of the Application as a whole, that the complainant’s intercepted telephone calls were placed from the institution, with the complainant using her identifying PIN number. I am advised that there is an inmate handbook which advised inmates that their calls may be monitored. I am advised also that there is conspicuous signage at the institution, which advises inmates that their calls may be monitored, and that, at the outset of each outgoing call, inmates hear a recorded message warning that the contents of their calls may be monitored.
[26] As such, it is reasonable to expect that all inmates exercised some degree of caution as to what they shared over this medium. Indeed, the intercepted calls from the complainant which I reviewed on this motion obviously involved language which was curtailed and guarded. The manner of the complainant’s communication, in particular in conversations with Ms. Mckenzie, disclose an intentional hesitation which was clearly informed by her knowledge that the communications may not be private.
[27] As per the reasoning in Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872, a substantially reduced level of privacy is available to inmates in the institutional environment. The expectation of privacy in the calls is, at best, an attenuated one.
[28] Notwithstanding the warnings, not all employees of the institution are authorized to monitor calls, and those who are, are required to request a formal authorization. That authorization, and the release of the information acquired is governed by directives developed pursuant to federal legislation: CD 568-10 and GL 568-10-1.
[29] I find that records of all outgoing telephone calls are records that contain personal information. It is clear that the production or disclosure of these records is protected by both provincial and federal legislation. As such, I find that the communications are records, as defined in s. 278.1 of the Criminal Code. These records are in the possession of the Applicant and their use at trial must be considered pursuant to the regime outlined in s. 278.92.
Does the evidence satisfy the test for admissibility as set out in stage two of the s. 278 test? Specifically, is the evidence relevant to issues at trial and does it have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice?
[30] I turn now to a consideration as to whether the Applicant should be permitted to make use of the records in cross-examination of the complainant, and a review of the factors as set out in s. 278.92 of the Criminal Code.
[31] Given the volume of intercepted calls, I asked counsel for Mr. Burnette to select a half dozen of the calls as examples of the communications which would be of potential interest for use in cross-examination. The calls selected in response represent three categories of subject matter: first, calls between the complainant and third parties about money, and the payment, transfer or owing of money. Mr. Burnette suggests these demonstrate that the complainant was either buying or selling drugs or contraband in the institution, and therefore involved in a criminal subculture at the institution. The second category of calls relates to the complainant’s concerns about her parole eligibility. The third category are calls in relation to the complainant’s consideration of retaining counsel for a civil action against either Mr. Burnette or the institution. Mr. Burnette argues these communications may go to a motive to lie.
[32] The Applicant has set out in some detail, the strategy of his defence, and how cross-examination on the limited areas he outlined may impact the credibility of the complainant and may advance his defence regarding her motive to fabricate. Based on all of the information available, I accept that the records are relevant to issues at trial.
[33] The interests of justice, including the right of the accused to make a full answer and defence, favours allowing the cross-examination.
[34] I have taken into account that the court must ensure that “counsel [is] not merely taking a random shot at a reputation imprudently exposed or asking a groundless question to waft an unwarranted innuendo into the jury box”, and that it should not be the complainant’s lifestyle and reputation that are on trial: see R. v. Lyttle, 2004 SCC 5, para 51 and R. v. Osolin, [1993] 4 S.C.R. 595.
[35] In the present case, the fact that the complainant is also an inmate in a federal prison institution, and serving a sentence for a serious offence, requires particular consideration to ensure that the trial does not become a trial of her character, while at the same time ensuring that the Applicant’s right to make full answer and defence is not curtailed.
[36] It has already been determined in other pretrial motions in this case that the Applicant will have the right to cross-examine the complainant in several areas which would fall into the category of “bad character” evidence: her criminal record and the basic facts which lead to her imprisonment, her assault on Sharon Baksh, and, assuming relevance is established, her possession of contraband while at the institution, allegations of her attempts at unauthorized three-way calls from the institution, allegations of involvement in the “drug sub culture” in the institution, and allegations that she had debts to other inmates. I have already ruled on the cross-examination of the complainant in relation to failed urinalysis tests.
[37] In the limited areas of cross-examination as proposed by the Applicant, being the calls about money, calls about parole, and calls about the civil action, I do not find that the impact on society’s interest in encouraging the reporting of sexual assault offences is put at risk in these circumstances.
[38] While there is some risk of discriminatory belief or bias, and some risk that the evidence may arouse sentiments of prejudice, sympathy or hostility in the jury, the risk is low. The risk relating to the potential prejudice to the complainant’s dignity and right of privacy, the right of the complainant and every individual to personal security, and to the full protection and benefit of the law is similarly low.
[39] The information communicated in the selected categories of calls sought to be relied on by the Applicant are not of the sort which is generally guarded by the s. 278 regime. They do not include intimate or personal details going to the complainant’s biographical core, and the disclosure of them would not have a significant impact on her personal dignity. There are no “twin myth reasoning” concerns that exist here as they do for other types of documents and records, in particular those which involve information about prior sexual conduct.
[40] The Applicant has articulated the anticipated probative value of the cross-examination and has undertaken to limit himself to the use of a limited number of the communications, should he resort to them.
[41] Although the Crown argues that the intercepted telephone communications were obtained by the institution via authorization for a specific use and the inmate should not have a reduced expectation of privacy for other uses, the Crown concedes the right of the Applicant to cross-examine on any evidence led by the Crown. It is likely that some of the subject matter in issue with respect to the intercepted communications will be put into evidence by the Crown.
[42] As I understand it, the Crown expects that the complainant’s testimony will address at least one of the three areas of proposed cross-examination in relation to the intercepted communications in chief. That is, it is expected that the complainant will testify that she was concerned about her parole eligibility, and how that concern related to her concern that she was being targeted by the Applicant’s wife, and her request for a transfer out of the institution. The Crown’s only concern in this proposed area of cross-examination is that it should not become unduly lengthy or repetitive.
[43] It is challenging, without the benefit of hearing the complainant’s testimony, to conduct the weighing of the probative value as against each of these considerations. However, in this case we have the benefit of considerable information upon which to base an expectation of what the complainant’s evidence will be, and we have significant disclosure from the Applicant as to the potential direction of his defence, and the potential probative value of the evidence.
[44] Assuming this all plays out at trial as it does in our collective expectation, cross-examination is permitted in the areas outlined by the Applicant, being the calls about money, parole, and the civil action, with the following provisos:
(a) I was not tasked with assessing each individual call, as they were numerous. In my view, because they were phone calls to her partner, her mother, and her friends, the content of the communications no doubt varies significantly in terms of subject matter, with some including more personal disclosure than others, and the outcome of balancing the competing factors may also vary. As such, each call will be treated as an individual record, subject to an assessment of the probative value taking into account all of the enumerated factors.
(b) The Applicant is permitted to cross-examine the complainant in relation to the calls which involve the three subject areas canvassed, provided that the calls selected do not include other personal information, and provided that cross-examination remains relevant, and is not unduly repetitive.
(c) If during trial the Applicant’s position changes, and he wishes to make a use of other intercepted calls, including calls wherein the subject matter is outside the scope of the three areas discussed here, or if the evidence at trial changes the considerations here, either counsel may raise this motion again, for direction, preferably before the commencement of the cross-examination of the complainant, so as to limit interruptions during that cross-examination.
S. Antoniani
Released: April 14, 2025