Court File and Parties

Court File No.: CR-23-101712-CJ
Date: 2025-04-14
Ontario Superior Court of Justice

Between:
His Majesty the King
Applicant
Counsel: B. Schnell and D. Silvestro

-and-

Christopher Burnette
Respondent
Counsel: M. Kruse

Heard: January 29, 2025

Reasons for Judgment
These reasons were delivered orally on March 5, 2025.

Justice: S. Antoniani

Overview

[1] Christopher Burnette (the “Respondent”), a Correctional Officer at Grand Valley Institution for Women in Kitchener, is charged with sexual assault for engaging in a sexual activity with inmate C.D. (the “complainant”) contrary to s. 271 of the Criminal Code, RSC 1985, c C-46. The Respondent is also charged with 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.

This pretrial application is brought to obtain rulings regarding the use at trial of the Respondent’s statements during two compelled interviews on June 22, 2022 and July 26, 2022, during a disciplinary investigation conducted by Correctional Services Canada. Correctional Services Canada convened a Board of Investigation (“BOI”) to conduct the investigation. The Respondent provided statements to the BOI under statutory compulsion. Neither party suggests that either statement has any different position in law. The analysis below applies equally to the two compelled statements, and to the related email communications between the Respondent and the BOI.

[2] The Applicant seeks to use only the non-incriminating portions of the statements to test the Respondent’s credibility in light of the Supreme Court’s decision in R. v. Nedelcu, 2012 SCC 59.

[3] The Respondent brings a cross motion, seeking an order that both statements were statutorily compelled and the use of them for any purpose at trial would violate the principle against self-incrimination under s. 7 of the Canadian Charter of Rights and Freedoms, and should therefore be automatically excluded for any use at his trial pursuant to s. 24(1) of the Charter.

[4] Alternatively, the Respondent seeks an order that his statements and subsequent emails to the BOI should be excluded at trial under the court’s common law power to exclude evidence that renders a trial unfair.

[5] The parties agree that the Respondent’s statements to the BOI were compelled, and that voluntariness is not at issue. The Applicant does not seek to adduce the statement in its case against the Respondent but argues that it should be entitled to use the statement in cross-examination, strictly for the purpose of challenging the Respondent’s credibility, should he choose to testify.

Factual Background

[6] On May 2, 2022, the BOI was convened to investigate the circumstances surrounding allegations of an inappropriate sexual relationship between the Respondent and the complainant, as well as allegations that the Respondent introduced contraband into the institution.

[7] On June 22, 2022, the Respondent attended an interview for the disciplinary investigation. His lawyer and a union representative were present at the interview. At the beginning of the interview, he was provided an opportunity to review a document entitled “Appendix B: Employee Rights, Privileges and Cautions”, which he signed. The Appendix B stated that “the purpose of the interview is not a criminal investigation but a disciplinary investigation” and “any information I provide may be included in the investigation report and used by management in a disciplinary process.” The document also indicated that he was obliged to cooperate, and that access to the file would be subject to privacy legislation. Over the course of the interview, the Respondent denied having a sexual relationship with the complainant and denied bringing any contraband into the institution.

[8] The second BOI interview took place via Microsoft Teams on July 26, 2022. The Respondent’s union representative was present via telephone at the interview. At the beginning of the interview, the Respondent was once again provided with Appendix B. At this second interview, the BOI asked follow-up questions that arose from the June 22 interview.

Issues

[9] Are the compelled Board of Investigation statements available for the Crown’s use during cross-examination of the Applicant on issues strictly related to credibility, or are the statements excluded from use for any purpose?

Decision

[10] For the reasons below, the statements made during the BOI investigation are excluded from use for any purpose during the criminal prosecution.

Analysis

There is no issue that the interview and the Respondent’s cooperation in participating was statutorily compelled: see the Commissioner’s Directive 041: Incident Investigations, the Commissioner's Directive 060: Code of Discipline, and the Inquiries Act, RSC 1985, c I-11.

[11] The parties also agree that the statements do not appear to be incriminating, though the time to fully assess their impact would be at the time they were intended to be used in these criminal proceedings.

[12] The Respondent’s statements clearly do not fall under the s. 13 Charter regime, but require instead a consideration of whether they impact the Respondent’s s. 7 right to be protected against self-incrimination.

[13] As s. 7 of the Charter states, everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[14] It is agreed that within s. 7 exists as a residual category which allows courts to examine factual circumstances to assess individual rights in fact-specific situations, which may fall outside the specifically enumerated rights. As such, what constitutes the principles of fundamental justice must be considered contextually with each situation: see R. v. Jones, 2017 SCC 60, para 30 citing R. v. White, para 45.

[15] It is also agreed that s. 7 of the Charter affords a residual protection against self-incrimination. The principle against self-incrimination is an organizing principle of criminal law which is guarded far beyond s. 7, including through ss. 11(c) and 11(d), 13, and 24(2) of the Charter, and s. 5(2) of the Canada Evidence Act, RSC 1985, c C-5.

[16] The leading cases to consider in relation to the use of the two BOI statements are the decisions of the Supreme Court of Canada in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), R. v. White, and R. v. Nedelcu, 2012 SCC 59.

[17] In Thomson Newspapers, the officers of a corporation were compelled to give testimony under s. 17 of the Combines Investigation Act, R.S.C. 1970, c. C-23, now s. 19 of the Competition Act, RSC 1985, c C-34. The court found that the compulsion to provide testimony did not contravene the Charter rights of the officers. The court found that the s. 17 proceedings were not adversarial, but inquisitorial processes, where no final determination of criminal liability is reached.

[18] In discussing compelled non-testimonial evidence, such as document production compelled by statute, L’Heureux-Dubé J. in Thomson Newspapers, at p. 596 commented that “it would be surprising indeed, if not paradoxical, if a witness not covered by s. 13 of the Charter could enjoy a wider protection under the residual protection of s. 7 of the Charter than is available to a ‘witness who testifies in any proceedings’ under s. 13 of the Charter.”

[19] The Crown relies on those comments here, arguing that to exclude the statements for any purpose would be to give the Respondent a wider protection than that which he would have pursuant to s. 13 of the Charter. I disagree. The statement of L’Heureux-Dubé J. is specifically in reference to the compelled production of documents, and not to self-incriminating testimony. It has no application to the facts before me.

[20] The Supreme Court in Nedelcu considered the application of s. 13 of the Charter. Mr. Nedelcu first gave testimony in a civil proceeding and the court grappled with whether the answers given in the proceeding could be used in any way in a subsequent criminal trial. In a split decision, the court held that the testimony from the civil proceeding could be used, only during cross-examination, and only to challenge credibility. At paras. 6-7, Moldaver J. discussed the protection from self-incrimination afforded by s. 13, referencing the court’s previous decision in R. v. Henry, 2005 SCC 76, which described the right as involving a quid pro quo:

[T]he “quid” that forms the critical first branch of the historical rationale, refers to “incriminating evidence” the witness has given at a prior proceeding in which the witness could not refuse to answer. The section does not refer to all manner of evidence the witness has given at the prior proceeding. It refers to “incriminating evidence” the witness has given under compulsion.

The “quo” refers to the state's side of the bargain. In return for having compelled the witness to testify, to the extent the witness has provided “incriminating evidence”, the state undertakes that it will not use that evidence to incriminate the witness in any other proceeding, except in a prosecution for perjury or for the giving of contradictory evidence.

[21] The court in Nedelcu and in Thomson Newspapers addressed issues with sworn testimony, which carries an assumption and a legal obligation of truthfulness. The Crown also referred me to the decisions of Perell J. in Ontario Psychological Association v. Mardonet, 2015 ONSC 1286 and Code J. in R. v. Seecharran, 2016 ONSC 7642. Again, these are decisions which are squarely covered by s. 13 of the Charter, and with the giving of sworn testimony in a prior proceeding.

[22] The Crown also relies on cases involving unsworn compelled statements. In R. v. Fitzpatrick, daily statutorily compelled fishing logs were used in a prosecution under the Fisheries Act, RSC 1985, c F-14. The fishing logs were prepared ongoing, and not pursuant to any complaint. They were produced in the ordinary course of participation in regulated fishing, and not after the commencement of adversarial proceedings.

[23] Applying the same reasoning in Police Complaints Commissioner v. Kerr, in finding that the introduction of notes made by a police officer, as a required part of his policing duties, did not violate s. 7 of the Charter, the Ontario Court of Appeal considered that the notes had been prepared before a complaint had ever been made against these officers, reducing the risk of unreliable confessions. Additionally, the proceeding in which the officer’s statement would be used was not a criminal proceeding.

[24] In each of Fitzpatrick and Kerr, the notes were not made at a time when the individuals were under the duress of an adversarial proceeding. They were regular notes, compelled to be made as part of participation in an activity or in employment.

[25] In R. v. White, the Supreme Court considered the application of s. 7 of the Charter and the right against self-incrimination in the context of compelled statements which were not under oath, and were made to authorities following a car accident. In excluding the use of the statements for any purpose at the subsequent criminal trial, the court noted that the presence of the police could be intimidating and created an adversarial situation, and that there may be incentive to provide a false statement, and that the circumstances might present an increased risk of abusive conduct by the state. Specifically, at para. 48, the court stated:

It is the balancing of principles that occurs under s. 7 of the Charter that lends significance to a given factual context in determining whether the principle against self-incrimination has been violated. In some contexts, the factors that favour the importance of the search for truth will outweigh the factors that favour protecting the individual against undue compulsion by the state. This was the case, for example, in Fitzpatrick, supra, where the Court emphasized the relative absence of true state coercion, and the necessity of acquiring statements in order to maintain the integrity of an entire regulatory regime. In other contexts, a reverse situation will arise, as was the case, for example, in Thomson Newspapers, supra, S. (R.J.) 1995 121 (SCC), and Branch 1995 142 (SCC). In every case, the facts must be closely examined to determine whether the principle against self-incrimination has truly been brought into play by the production or use of the declarant's statement.

[26] The Respondent relied on the decision of Di Luca J. in R. v. Otto, 2019 ONSC 3725. The accused in that case was a doctor regulated by the College of Physicians and Surgeons of Ontario. He was charged with trafficking fentanyl. Before trial, the College required him to participate in a disciplinary hearing in which he was interviewed about his fentanyl prescribing practices. He was not under summons but was under a statutory duty of cooperation. The interview took place in the presence of his counsel. The Crown sought to cross-examine on inconsistencies between Dr. Otto’s disciplinary interview and his testimony at trial pursuant to Nedelcu. Di Luca J. prohibited the use of the interview for any reason, relying on White.

[27] Justice Di Luca noted that the regulatory and criminal investigations were parallel but independent of one another. At the conclusion of the regulatory investigation, the police obtained the regulatory file via a judicial authorization. In considering that White and its progeny are not referred to in Nedelcu, Di Luca J. concluded that “if the Supreme Court in Nedelcu had intended to revamp the scope of use immunity under s. 7 of the Charter, it would have signaled an intention to do so”: see Otto, at para. 71.

[28] Justice Di Luca further noted the following in Otto, at paras. 76-77:

[A] compelled interview to an investigator creates both a fear of prejudice and an incentive to provide a false statement, see White, supra, at para. 62. [I]f compelled statements given to a professional regulator and obtainable by police using a production order were used in criminal proceedings, the risk of state abuse of power is increased, see White, supra, at para. 64.

The same analysis is relevant in the present case.

[29] The substantive difference between all of the cases relied on by the Crown, and the situations in White, and in Otto, is that the statements in the latter two cases were compelled but they were not under oath, and they were taken at a time when an adversarial situation was already in progress. Sworn statements carry a solemnity of situation, which alerts the individual that they are under compulsion of law to speak the truth. In my view, the combination of the statements being unsworn, and being made in the context of an adversarial situation impacts the reliability of those statements. I find that the risk of unreliable statements is particularly concerning in relation to statements regarding collateral facts.

[30] I have considered the admissibility of the present statements in relation to the four factors relied on by the Supreme Court in White: the existence of coercion by the state in obtaining the statements, the existence of an adversarial relationship between the accused and the state at the time the statements were obtained, any increased risk of unreliable confessions as a result of statutory compulsion, and the possibility of increased risk of abuse of power by the state as a result of the statutory compulsion.

[31] The Respondent made the BOI statements after he was notified of the allegations of sexual misconduct, and of the allegations that he breached other institutional rules of his employment. The context in which the statements were made was clearly formal and adversarial. The Respondent was in obvious jeopardy of losing his job, or of serious employment sanctions. He was not under oath. He was not cautioned. The Respondent was specifically told that the compelled interview was in relation to allegations of workplace infractions and that it was not a criminal investigation. I note that the Respondent was using his wife’s computer for the July 26th interview, and that she is another employee at the same institution. It may be reasonable to consider the possibility that the Respondent was motivated out of concern about her becoming aware of his responses.

[32] The Respondent’s statements do not enjoy the same presumption of trustworthiness and reliability as do statements given on oath or affirmation, and I find that in all of the circumstances here, particularly in relation to collateral facts, they are more likely to be untrue or unreliable. As such, there is increased risk in using those responses to challenge the Respondent’s credibility while under oath in a criminal proceeding.

[33] I also note that the BOI interviews are distinguishable from any note or record made by the Respondent in the ordinary course of his employment, prior to the initiation of the adversarial BOI process. The summary of allegations for the prosecution was provided in the Applicant’s materials. It indicates that the Respondent, as part of his employment, was expected to update a ledger of rounds he completed as well as provide notes of any notable information, including inmate movement. I understand that the Crown intends to rely on those and other records which the Respondent created – or failed to create – during the course of his employment. These compelled work-related statements and records made by the Respondent are in line with those considered in Fitzpatrick, Kerr, and the maintenance of patient files in Otto, and there is, appropriately, no motion to suppress them from use here.

[34] Finally, I acknowledge receipt of the recent decision of R. v. Korduner, 2025 ABCA 30, forwarded to me by the Applicant after the hearing of this application. The court there allowed a statement made by a person detained roadside, to form grounds for making a breath demand. In distinguishing White, the Alberta Court of Appeal noted that White did not involve impaired driving, and that the purpose for which the statement would be used in the instant case – to form reasonable grounds for a breath demand – was more limited than the use proposed in White. I am not persuaded that the Korduner decision changes the analysis in the facts before me.

Order

[35] The statements made by the Respondent during the compelled BOI interviews on June 22, 2022 and July 26, 2022, and the subsequent email communications are excluded for all purposes.

S. Antoniani

Released: April 14, 2025