Court Information
COURT OF APPEAL FOR ONTARIO DATE: 20210603 DOCKET: C 61987
Feldman, Lauwers and Trotter JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Adrian Daou Appellant
Counsel: Howard L. Krongold, for the appellant Deborah Krick, for the respondent
Heard: February 17, 2021 by video conference
On appeal from the conviction entered by Justice Robert L. Maranger of the Superior Court of Justice, sitting with a jury, on December 16, 2015.
A. Introduction
1The appellant was convicted of first degree murder for killing Jennifer Stewart. He was sentenced to life imprisonment with no parole for 25 years.
2The case against the appellant hinged on statements he gave to the police while he was incarcerated on unrelated charges. The appellant said he killed Ms. Stewart so he would become “a billionaire rap superstar”. He gave his confessions as a means of getting out of custodial segregation and while apparently suffering from schizophrenia.
3At trial the appellant claimed that his confessions were false. He also professed to be not criminally responsible on account of mental disorder (“NCRMD”), in the event the jury accepted he killed Ms. Stewart.
4The lead investigator in the case, Detective John Monette, testified that he believed one of the confessions to be true, and provided detailed reasons for reaching this conclusion. In his final instructions to the jury, the trial judge told the jury that, before they could find the appellant guilty, they had to be satisfied beyond a reasonable doubt that the confession was true.
5The officer’s opinion that the confession was true was inadmissible. It amounted to an opinion that the appellant was guilty. The jury should have been cautioned to completely disregard this dangerous testimony. But there was no caution. Instead, the significance of the confession was underscored in the trial judge’s final instructions, and the officer’s opinion repeated.
6On appeal, the Crown acknowledges that the trial judge erred by failing to provide a limiting instruction, but asks this court to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code.
7I would decline to apply the proviso. Without a proper limiting instruction, the detailed opinion of this senior police officer seriously risked dominating the jury’s consideration of the veracity of the confession and, ultimately, the appellant’s guilt. It cannot be safely concluded that this evidence, and the lack of a warning, had no impact on the verdict. Accordingly, I would allow the appeal and order a new trial.
B. Factual Overview
8Jennifer Stewart was brutally murdered in Ottawa between the evening of August 19, 2010, and the early morning hours of August 20, 2010. She was attacked with a weapon, possibly an axe. She was left to die, lying face down in a parking lot behind an apartment building. Ms. Stewart sustained five “chop” injuries to her head, three of which penetrated her skull. She had similar injuries to her right shoulder, right shin, legs, and perineal area. She suffered defensive wounds to both hands. Her left hand was almost severed from her arm.
9There were no eyewitnesses to the murder, nor any forensic trace evidence that linked the appellant to the murder. There were no obvious suspects. Det. Monette testified that, between 2008 and 2011, a number of young women involved in the sex trade were killed in Ottawa. Ms. Stewart was among them. As discussed below, the appellant also purported to confess to killing another one of these women, but the police quickly dismissed this confession as false.
10The Ottawa Police Service shared some information about their investigation through media releases. Some details were withheld as “hold back information”, being information the police do not release to the public to help the police gauge the value of information they receive through public tips. If the police receive a tip with information that contains any “hold back information”, the police may look at that tip with particular interest. In this case, the hold back information included: (1) the type of weapon used to kill Ms. Stewart; (2) the nature and location of Ms. Stewart’s injuries; (3) the exact location of the attack; and (4) details about Ms. Stewart’s clothing. The trial Crown alleged that, because the appellant disclosed some of these details in his confessions, he was the killer.
11The defence relied on inaccuracies in the appellant’s accounts, including his initial claim that he killed Ms. Stewart with a knife, not an axe. The defence also pointed to a number of timely newspaper articles that contained details about Ms. Stewart’s murder, including: a rough description of where it occurred (i.e., in the gravel parking lot of a low-rise building a few houses away from where the appellant lived); that emergency crews had turned over Ms. Stewart’s body, which was found lying face down; and that Ms. Stewart had stab wounds to her head (including the back of her head), legs or thighs, and deep wounds to both wrists. As discussed below, in the year prior to his confession, the appellant showed interest in media accounts of Ms. Stewart’s murder.
12Over a year after the murder, in October of 2011, with no real leads, the police offered a $50,000 reward for information leading to the arrest and conviction of Ms. Stewart’s killer. Nobody stepped forward to claim the reward. The investigation went stale until February 25, 2013, when the appellant confessed to the murder. The appellant mentioned the reward in one of his police interviews and asked whether he could get someone to “rat him out” and collect the reward money.
13In addition to the evidence concerning the circumstances of Ms. Stewart’s death and the appellant’s confessions, the jury heard a great deal of psychiatric evidence relating to the NCRMD issue. Given the focus of this appeal – on whether the trial Crown proved that the appellant killed Ms. Stewart – it is not necessary to address this evidence in detail.
C. The Appellant’s Statements
(1) Introduction
14The cornerstone of the trial Crown’s case was comprised of the appellant’s numerous statements. On February 25, 2013, the appellant made an audio-recorded statement at the Ottawa Regional Detention Centre (“ORDC”). This led to a lengthier statement at the police station the following day, on February 26. This statement was video recorded and was the main focus of the trial, and this appeal.
(2) The Appellant’s Mental Condition
15At the time he spoke to the police in February 2013, the appellant was displaying symptoms of schizophrenia. He was segregated and on suicide watch. In the weeks leading up to his statements, the appellant saw clinical psychologist, Dr. Ian Shields, at the jail. Dr. Shields met briefly with the appellant on February 15, 2013 because jail staff were concerned about his mental health. The appellant exhibited inappropriate affect and reported biting himself.
16At a longer meeting on February 20, 2013, Dr. Shields thought that the appellant might be experiencing auditory hallucinations. The appellant made illogical and strange comments and claimed that his finger was possessed by a demon. He suggested that cutting off his finger might solve all of his problems. The appellant’s strange behaviour prompted Dr. Shields to ask whether he had ever considered eating his cellmate. The appellant just laughed at the question in a way Dr. Shields thought was peculiar. When he was asked if he had ever tasted human flesh, the appellant pointed to a wound on his right arm, which looked like a bite mark. Dr. Shields saw the appellant on February 28, 2013, after his police confessions, and he presented in the same manner. In March, the appellant appeared to be much “calmer”.
17Dr. Shirley Brathwaite, a forensic psychiatrist, met with the appellant on February 22, 2013. The appellant reported to biting his own arm and spoke of cutting off the tip of his finger in the hope he would be released from custody, even if only to receive medical attention. Dr. Brathwaite thought the appellant was organized in his thoughts, but exhibited odd behaviour, inappropriate to the situation. He seemed preoccupied with hurting himself. Dr. Brathwaite testified that the appellant did not acknowledge experiencing hallucinations, but many people do not admit to experiencing hallucinations. When she met with the appellant again in March 2013, he exhibited poor judgment and inappropriate affect.
(3) The Jail Statement – February 25, 2013
18On February 25, 2013, at about 9:00 a.m., the appellant told a correctional officer that he would like to confess to a murder. The police were contacted. Det. Monette and his partner, Det. Kevin Wilcox, went to the jail that same day to meet with the appellant.
19The detectives met with the appellant in the visitors’ area of the jail and took an audio-recorded statement that lasted roughly 30 minutes. The appellant spent the first few minutes of the interview seeking assurance he could be let out of segregation and transferred to a federal penitentiary that evening if he confessed. He then jumped into his confession, saying: “You remember 20th on Alice Street. … 2010. Jennifer. … Yeah, I did it. … I did the crime.”
20The appellant claimed he met Ms. Stewart on Montford Street just before midnight on the night of the murder. She was wearing a black raincoat and pants. He knew Ms. Stewart from the neighbourhood and had sold her drugs on occasion.
21He explained that he lured Ms. Stewart to a parking lot at Alice Street and St. Ambrose Avenue under the pretense of selling her drugs. He said she was going to pay cash for the drugs and confirmed there was no plan for Ms. Stewart to give the appellant any “sexual favours”.
22When he and Ms. Stewart arrived at the parking lot, he told her to wait there for him while he went to get the drugs. The appellant was living one street over at the time. He then circled back and snuck up on Ms. Stewart, first attacking the “top part”, indicating her upper torso, and then her head. 1 He estimated he hit her on the head between four to seven times. He said Ms. Stewart fell down “pretty quick” and that she did not try to defend herself at all. When Det. Monette asked if he hit her anywhere else – “Arms? Legs? Back? Whatever?” – the appellant said, “Maybe like this part, the top part”. He said he left Ms. Stewart lying face down on the ground, with her head pointing toward Alice Street.
23Initially, he said he “cut” Ms. Stewart with a military knife. When Det. Monette asked if the appellant was sure he used a knife, the appellant responded with: “That’s what the news says”. However, the appellant then said he used an axe he bought from Canadian Tire. The axe had a silver metal blade and a wooden handle that was roughly two-and-a-half feet long. The appellant said he bought the axe from the Canadian Tire on Coventry Road a couple of weeks before he attacked Ms. Stewart, after he found out the Crown was going to seek a six-month sentence for unrelated charges against him. After the murder, he kept the axe in his house until October 2012, when he threw it in the garbage.
24When asked about his motivation for killing Ms. Stewart, the appellant said: “I don’t know. I was at work and I was listening to the radio and I had those like weird ideas coming in my mind, like that day was like really different.” He explained he had been thinking of killing someone ever since he found out the Crown would be seeking the six-month sentence. Although he knew Ms. Stewart from the neighbourhood, he had not targeted her or anyone else. He was just “looking around” that night and Ms. Stewart was “the one that like came up … as the best like possible choice.” When he saw her, he “knew [she] was the one somehow.”
25After speaking with the appellant, the detectives decided to pursue a further interview in a more appropriate setting, away from the noise and clamour of the jail, and where it could be video recorded. They made arrangements to transport the appellant to the police station the following day.
(4) The Confessions – February 26, 2013
26On February 26, 2013, Det. Monette conducted a formal interview at the police station. This interview lasted roughly four-and-a-half hours, and anytime Det. Monette would leave the room, the appellant would rap to himself. The lyrics often centred around violent themes.
27At the outset of the interview, the appellant reiterated that he purchased the axe after he heard the Crown was seeking a six-month sentence. But this was not the first time he turned his mind to murder: he already had the idea that he would become a “really good rapper” if he killed someone. The potential six-month sentence was not his sole motivator, but merely added to his desire to kill someone to become “the perfect rapper.”
28In addition to the axe, the appellant purchased the following gear from Canadian Tire: a pair of clear, plastic goggles; a pack of masks, which he first described as “painter’s” masks but later as “surgical” masks; and a pair of beige and green canvas gardening gloves (though he forgot to use these on the night of the murder). The appellant was consistent that he bought these items in cash from the Canadian Tire on Coventry Road, but was unclear on when exactly he did so. Although he said he was sure it was sometime in August 2010, he guessed it was “a few days or weeks” or eight to nine days before the murder. He did not share his plan with anyone and kept the axe and gear in his bedroom until he used them to kill Ms. Stewart.
29The appellant recounted his actions and thoughts throughout the day of the murder. He did not begin his day planning to kill anyone. However, while he was listening to the radio at work, “weird ideas” came into his head that that was the day to kill someone and do what he had to do to be a “millionaire rapper”. The turning point came while he was on his lunch break: he saw a McDonald’s delivery truck go by with the phrase “Good Start, Bon Repas” along the side of the vehicle. He took those words as a sign and knew at that moment that was the day to kill someone.
30The appellant finished work around 4:00 p.m. and took the bus home. He arrived home at roughly 5:00 p.m. and spent the next four-and-a-half to five hours coming and going from his house, smoking marijuana, biking around the neighbourhood, listening to music, and writing rap lyrics about killing and “street gangster stuff”. Early in the evening, he purchased a 26-ounce bottle of Alizé Liquor, which he drank throughout the night. He told Det. Monette the alcohol made him more willing to commit murder, and that he decided earlier in the day to drink beforehand, explaining: “I seen this big pitcher of beer … like right in the morning and they never do that. And that just like set … set off the idea to drink to accomplish it, right.”
31It was not until approximately 9:30 or 10:00 p.m. that the appellant left his house and started to “really look” around his neighbourhood for a victim. He was not focused on any particular person or gender.
32Shortly after 10:00 p.m., the appellant saw Ms. Stewart walking on Marier Avenue toward Montreal Road. She stood out to him because she was alone, and he thought she was the right match. He said she was wearing a black coat and pants that could have been black pants or jeans. She was not carrying a purse, backpack, or any other kind of personal bag.
33The appellant approached Ms. Stewart from behind. In contrast to his previous statement, he told Det. Monette that he offered Ms. Stewart drugs in exchange for oral sex, not money. Ms. Stewart agreed to the transaction, and they headed off toward the apartment building at 120 Alice Street. They did not speak much along the way – she walked a few feet ahead of him and he was listening to the radio on an MP3 player. The appellant once again believed the radio was giving him signs. He said to Det. Monette: “[E]verything that the radio was saying was like pointing me in the direction of killing that day. And the more I listened, the more I like … I understood it was like time to do it.”
34As the appellant and Ms. Stewart walked along St. Charles Street, he told her he was going to bring her to 120 Alice and to wait there for him. He left her in the parking lot and went home to grab the axe and gear. He then returned to 120 Alice and hid behind the building to put on his gear. When he entered the parking lot, Ms. Stewart was gone.
35Fully geared and holding the axe, the appellant stood against the wall of 120 Alice and called out to her for roughly two minutes. When Ms. Stewart did not respond, he took off his gear, put it in his hoodie pocket, and hid the axe against a shed behind the building. He then headed around to the front of 120 Alice to see if she was on the front steps. She was not. As he started back toward the shed, he saw Ms. Stewart waiting for him in front of a nearby apartment building on St. Charles Street.
36The appellant called Ms. Stewart over to him, saying she came over without any “doubts or suspicions”. He walked her back to the parking lot at 120 Alice, and again told her to wait while he retrieved the drugs. She was standing just around the corner from the shed. He “geared up” once more, grabbed the axe, and headed back into the parking lot.
37The appellant described running at Ms. Stewart from behind, surprising her as he aimed the axe at her chest and head. He hit the top part of her body and head approximately three to four times before Ms. Stewart fell to the ground. Once on the ground, Ms. Stewart rolled onto her stomach so she was face down, and the appellant delivered another five to six blows to her head. He said she kept her arms lying by her side, and never resisted or tried to defend herself.
38After his final hit, the appellant fled the scene to return home. When he left, Ms. Stewart was lying face down with her head pointing toward Alice Street. The appellant took off his gear, wrapped it in his hoodie, and hopped the series of fences between 120 Alice and his house. He arrived home just before midnight and entered through the side door. He wrapped the axe in his father’s old red winter coat and put the gear and his clothes in a garbage bag. He threw out the clothing and gear the next day, but kept the axe, still wrapped in the coat, in a suitcase in his bedroom closet. Contrary to the appellant’s statement the day before, he now said it was his father who threw the axe in the garbage in October 2012, after he found it while preparing to move out of the house. The appellant said he heard around 7:00 a.m. the next morning that someone found Ms. Stewart’s body.
39At the end of his statement, Det. Monette gave the appellant a photographic printout of axe, hatchet, and bowsaw inventory at Canadian Tire. The appellant circled the axe that matched the one he said he used to kill Ms. Stewart.
40The appellant later joined Det. Wilcox and two other detectives on a ride-along to the scene of Ms. Stewart’s murder. He directed the detectives through the route he took the evening of August 19, and pointed out the key landmarks and locations he described during the confession.
41At the end of this interview, the appellant also confessed to two other crimes, an attempted homicide and a break and enter.
42First, he told Det. Monette that on May 4, 2010, he tried to kill another sex worker, named “Harmony”, by hitting her over the head with a rock and kicking her in the head and face. The appellant and Harmony agreed to exchange drugs for oral sex and headed to a secluded parking lot on Boulevard Sacré Coeur, in Gatineau, Quebec. As Harmony was leaving the parking lot after the exchange, the appellant picked up a large rock and hit Harmony on the back of the head as hard as he could, intending to kill her. When she did not die, he pushed her to the ground and started kicking her head and face and then walked away. Shortly after the attack, he started rapping to see if there was any new “technology” in his head.
43Second, the appellant described a break and enter he committed in 2012. He broke into a woman’s house on Sweetland Avenue in Ottawa’s Sandy Hill neighbourhood. The appellant knew the woman, who he had previously met through a mutual friend. The appellant entered the house through an open window and stole two laptops and a martini bottle.
44The trial Crown called both women as witnesses and both confirmed the appellant’s confessions to these unrelated crimes.
D. The Appellant’s Other Statements
45The trial Crown also relied on other statements the appellant made about Ms. Stewart’s murder.
(1) Statements to Cristal Gordon
46Cristal Gordon was the appellant’s former girlfriend. They started dating around November 2011. The last time she saw the appellant was roughly a year later, just before he went into custody in early 2013. Ms. Gordon was a drug user who was on methadone at the time of the trial. She described a number of statements the appellant made.
47First, the appellant told Ms. Gordon that he killed a man who owed him money. She did not ask any follow up questions because she thought he was lying. Within two months of this disclosure, they were at an internet café, where the appellant was looking at an article about Ms. Stewart’s death. The appellant told her that this was the person he had killed, not a man. At the time, the appellant had a smile on his face and seemed quite interested in the article.
48The issue came up again. When the two were sitting in a room together, the appellant was looking at articles about Ms. Stewart online. Ms. Gordon asked the appellant whether he really killed her. With a smile on his face, the appellant answered “yes”. The appellant said that he bought gloves and a mask and that he attacked Ms. Stewart with an axe. He did this because he wanted to be a famous rapper. The appellant said that he saw a sign on a McDonald’s truck that made him decide that this was the day that it had to be done.
49Ms. Gordon also said the appellant told her he had attacked another woman by smashing her head with a rock, though she did not know the woman’s name.
(2) False Confession to Killing Another Woman
50When the appellant was in the ORDC on March 6, 2013, he told institutional staff that he wanted to confess to killing another woman, Leanne Lawson. The police attended to speak to the appellant. However, during the interview, the police concluded that it was a false confession and left. Another person had already been charged with this offence.
(3) Statement While Being Transported to Court
51The appellant made another statement on the eve of his trial. He was taken to court on November 4, 2015 for an administrative appearance. The appellant was agitated about being transported with other prisoners because he was usually transported alone. He was concerned about being beaten up that morning. He said to the special constables who were assigned to transport him: “I killed a hooker”.
(4) Confirmatory Evidence
52Other than the appellant’s statements, there was little else that confirmed his police confession to killing Ms. Stewart. He told Ms. Gordon that he used an axe and wore gloves and a mask. The appellant told the police that he purchased these items, and a pair of goggles, at a specific Canadian Tire store. The police investigated this store and discovered that a transaction had taken placed on June 25, 2010 in which an unidentified person paid cash for this group of items, roughly two months before Ms. Stewart’s murder.
E. The Opinion Evidence
53As already noted, Det. Monette was the lead investigator. At great length, the jury heard about his impressive credentials. At the time of the trial in late 2015, he had been a police officer for 29 years and had spent the last 13 months on secondment with the RCMP, acting as an investigator in the war crimes and extraterritorial response unit. For 16 years before that, he was with the major crime unit, save for one year he spent seconded to the RCMP international police operations branch, working as a peacekeeper in South Sudan. He spoke extensively about his training and experience, often referring to other cases that he investigated.
54The jury also learned that Det. Monette had investigated over 170 homicides. In his examination-in-chief, he was prone to lengthy responses, as well as expressing panoramic views about the investigation of homicides. The jury would no doubt have been impressed with his views on the matter. Other aspects may have further drawn the jury towards investing in his opinion. He described printing 200 copies of the reward poster himself and walking up and down all sides of Montreal Road, “attending each residence and business there”, asking if anyone had any information and if they would put a poster in their front window. At another point, in explaining why the investigation into Ms. Stewart’s murder was not a “cold case”, he commented: “[Det. Wilcox] and I never stopped working on Jen’s case.” He routinely referred to Ms. Stewart as “Jennifer” or “Jen” throughout his testimony.
55I hasten to add that Det. Monette was not solely responsible for creating the special aura that infused his testimony. The evidence of his extensive background, as well as his opinion about the reliability of the appellant’s February 26 confession, was adduced through careful questioning by the trial Crown, with no objection from trial counsel.
56It is necessary to set out the relevant parts of Det. Monette’s evidence in some detail in order to demonstrate the prominence of his evidence, the manner in which he expressed his opinion, and his repeated assertions of expertise as a homicide investigator.
57The problematic part of the testimony related to the appellant’s first statement at the police station on February 26. Det. Monette thought that the appellant said contradictory things about the moments just before he attacked Ms. Stewart. Det. Monette admonished the appellant, saying, “[T]hink good and hard about what it is that you’re telling me”, shortly followed by, “Okay. ‘Cause right now I’m not convinced that you’re telling me the truth.” The following exchange then occurred between the trial Crown and Det. Monette:
Q. Can I ask you why you said that to Mr. Daou at that point in time in the interview? A. I’ve been a police officer for 29 years. I’ve been in homicide for roughly 18. I speak to a lot of people in interviews and interrogations on a fairly regular basis. I’ve had people confess to me for things that they haven’t done. I wanted to ensure that Mr. Daou was responsible for – I wanted to make sure that Mr. Daou was telling me the truth in regard to what he was confessing to. I don’t want to in any way, shape or form put an innocent man in a situation he doesn’t belong to be in. Simply, I was interested in discerning that he was telling me the truth. Q. Okay. I’m going to ask you some more about – some follow-up about this next question, but simply put, was there a point in the interview with Mr. Daou, at any point, where you were convinced he was telling the truth? A. Certainly not at this point. Q. Okay. A. I had questions at this point still, but later on, yes, I did. Q. Okay. A. There were several points that – there are a couple of points that led me to the belief that he was responsible for Ms. Stewart’s death . [Emphasis added.]
58I pause to note that in the opening frame of this exchange, Det. Monette took the opportunity to assert his credentials once again, and to portray himself as a cautious investigator who desperately wanted to avoid implicating an innocent man. This was the foundation for his ultimate assertion that the appellant’s confessions were true, and he was in fact the killer.
59The trial Crown returned to the issue in the following lengthy exchange in which Det. Monette explained his opinion in some detail:
Q. Okay. One of the things that I covered off earlier with you was this – the comment that you made to Mr. Daou at page 43 of the transcript with respect to him telling the truth? A. Yes. Q. And you had indicated that at a couple of points – there were a couple of points that led you to believe that he was responsible for Jennifer Stewart’s death… A. That’s right. Q. …in the interview. Are you able to identify those points in the interview – first of all, let me ask you, are they in this particular interview that we’ve just seen? A. Yes. Q. Can you identify the points in the interview where you came to that conclusion? A. Do you recall earlier we heard from Sergeant Killeen… Q. Yes. A. …with regard to the blood found on the parging of the wall… Q. Yes. A. …close to the south-east corner of the building at 120 Alice Street? Q. Yes. A. When Mr. Daou had drawn the first diagram, that being of the back of the residence and the location where he attacked Ms. Stewart, he drew her in a location that I believe to be very close to where the blood was found on the parging of the wall. That was the first instance. Q. Okay. So you’re – just for the completeness of the record, you're holding up the first diagram that we went through…. Was that the first one or the second one? I think that was the first one. A. This is the first one. Q. Right. The first diagram that we went through indicating the building at 120 Alice, the shed in the back, his path of movement, the axe and Ms. Stewart’s body while standing and while on the ground? A. That’s correct. Q. Okay. A. While someone walking past the crime scene and seeing Ms. Stewart on the ground might reasonably be able to say that they could tell where she was on the ground. I believe that the small amount of blood on the parging of the wall is significant because it shows the location where she was attacked, and I believe that only the person who was there at the time of that attack would reasonably know that information. Q. Were there other points in this particular interview where you came to the conclusion that he was responsible for the death of Jennifer Stewart? A. I did. Again, on the next diagram, the diagram of the, of the person that I asked him to draw, it was clear that Ms. Stewart had suffered trauma to the torso and the area of the shoulders. That was significant to me. And then secondly and more importantly, with respect to the injuries inflicted to the back of her head and also the number of injuries inflicted to the back of her head, I believe, would be significant to only someone who would have been there at the time and party to it . Q. While Mr. Daou was making these diagrams and indicating the area of the injury and the number of blows, did you have holdback information in your mind in terms of the number of injuries, location of injuries? A. Very much so. I’d attended the autopsy, I was aware of the number of blows inflicted by Dr. Milroy’s account, as we’ve heard. I was aware of the type of weapon that was described to have been used as “a significant edged weapon”. I’d attend the crime scene, I’d seen the blood on the parging of the wall as described by Sergeant Killeen. And all of those factors led me to that belief at that point in time. [Emphasis added.]
60In cross-examination, Det. Monette was asked about his approach to questioning the appellant. Trial counsel suggested to him that he was on the lookout for hold back information. I reiterate that it was the defence theory that some of the so-called hold back information was in fact available from other, public sources. Det. Monette disagreed with the suggestion. He said: “I’m not simply looking for words, it’s not just checking off boxes, it’s, it’s more intuitive than that.”
61The trial Crown pursued this theme in re-examination:
Q. That one point in reference to the hold back information, [trial counsel] was suggesting to you that, you know, you’re looking for hold back information to come from Mr. Daou, that’s what you’re observing? A. Yes. Q. And you responded by using this phrase, “It’s not just ticking off boxes, it’s more intuitive than that.” A. Very much so. Q. Can you explain what you meant when you gave that answer? A. Certainly. I’m – I’m not just waiting for a person to regurgitate words that I think are – are, uh, important. It’s – it’s important that it all be explained in a context that’s – that’s believable and that is consistent and that is something that – that will hold water. And in this case, I believe that to be the case. [Emphasis added.]
62As the above excerpts reveal, Det. Monette was given numerous opportunities to express his opinion on the truthfulness of the confession and how he formed that belief, which was based on his training, experience, and intuition.
F. The Trial Judge’s Instructions to the Jury
63The trial judge referred to the appellant’s February 26 confession, along with Det. Monette’s evidence, in several parts of his final instructions to the jury. After discussing the events leading up to the confession, the trial judge commented: “You have a transcript and the DVD of the audio/video recording of the interview in its entirety. It is a piece of evidence that should be very carefully considered during your deliberations.”
64When explaining the elements that the trial Crown must prove on a charge of first degree murder, the trial judge posed the first question: “Did Adrian Daou cause Jennifer Stewart’s unlawful death?” He instructed the jury as follows:
The accused person provided a confession to the Ottawa Regional Police Services whereby he claimed to be responsible for Jennifer Stewart’s unlawful death. There is no direct or forensic evidence that links the accused to Jennifer Stewart’s death. Your focus should be on the reliability of the accused’s confession.
To conclude that Adrian Daou is the person responsible for Jennifer Stewart’s death you must be satisfied beyond a reasonable doubt that the Crown has established that the confession is reliable and that those parts of the confession where Adrian Daou describes his unlawful killing of Jennifer Stewart are in fact true. [Emphasis added.]
65The trial judge provided a thorough review of the evidence. He reminded the jury that Det. Monette was the lead investigator on the case and that he had 29 years of experience as a police officer. In the context of describing the investigative steps Det. Monette took, the trial judge focused again on the February 26 confession:
The Detective was asked what convinced him that this was a real confession. He pointed out the following: the diagram drawn by the accused that showed where the body was situated in relation to a small amount of blood on the parts of the building; the diagram showing the area of the injuries and the number of blows to the back of the head; and the identification of an axe as the weapon. He believed that this was information that could only have been known by someone who was there . [Emphasis added.]
66No objection was taken to any of these instructions.
G. Analysis
(1) Admissibility
67In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, Cromwell J. said, at para. 14: “To the modern general rule that all relevant evidence is admissible there are many qualifications. One of them relates to opinion evidence, which is the subject of a complicated exclusionary rule.” That case concerned the parameters of expert opinion evidence, whereas this case is about the non-expert opinion evidence given by a police officer.
68Det. Monette was not qualified as an expert, nor could he have been. He had no special power, training, or ability to determine if someone is telling the truth. Moreover, had he been offered as an expert, his impartiality and lack of independence would surely have been fatal to being so qualified: see White Burgess, at paras. 46-53. Det. Monette’s opinion about the truthfulness of the appellant’s confession was inadmissible. It was for the jury to answer this question, without undue influence from a high-profile witness who had no business opining on the issue.
69Generally speaking, only properly qualified experts may provide opinion evidence, and only about matters of fact, not about legal issues. In Graat v. The Queen, [1982] 2 S.C.R. 819, the Supreme Court of Canada considered whether lay persons, in that case a police officer, could provide an opinion about whether a person’s ability to drive was impaired by the consumption of alcohol.
70In a searching analysis, Dickson J. (as he then was) concluded that, as a general rule, lay persons cannot give opinion evidence, but noted that the law recognized a number of exceptions, such as the identification of handwriting, a person’s apparent age, the emotional state of a person, and others: at p. 835. However, he drew a bright line between opining on matters of fact on the one hand, and legal standards on the other. Dickson J. said, at p. 839: “A non-expert witness cannot, of course, give opinion evidence on a legal issue as, for example, whether or not a person was negligent.” Similarly, an opinion that an accused person is guilty would be subject to the same prohibition.
71The Supreme Court addressed this issue in R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716. In that case, the victim, Jack Kong, had been stabbed and robbed. He said his former friend Duc Van did it. At trial, Mr. Van claimed that someone else had attacked Mr. Kong. Mr. Van was convicted at trial. On appeal, this court set aside the convictions because one of the Crown’s key witnesses, a police officer, offered his opinion on Mr. Van’s guilt, and left the suggestion that his opinion was based partly on information that was not before the jury. He was also permitted to give evidence that fell into the category of investigative hearsay. Winkler C.J.O., in dissent on this point, would have dismissed the appeal by applying the curative proviso in s. 686(1)(b)(iii) of the Criminal Code: R. v. Van, 2008 ONCA 383, 92 O.R. (3d) 462, at para. 47, rev’d 2009 SCC 22, [2009] 1 S.C.R. 716.
72By a majority of 5:4, the Supreme Court overturned this court’s decision. All nine judges agreed that the disputed evidence was admissible, but only for a limited purpose. They also agreed that the jury should have been provided with a limiting instruction about the proper use of the investigative hearsay and police opinion evidence. The jury received no such instruction. The majority was prepared to apply the proviso; the minority was not.
73Although the main issue before the Supreme Court concerned the impact of the failure to provide a limiting instruction, both the majority and minority judgments are helpful on the question of the admissibility of the disputed evidence.
74For the majority, LeBel J. held, at para. 39, the evidence of the officer’s “statement of his opinion of the respondent’s guilt was unwarranted and clearly foreclosed by the jurisprudence , due to the danger of the jury uncritically accepting the witness’s opinion without drawing their own conclusions about the evidence (e.g. R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 49 )” (emphasis added).
75LeBel J. qualified his comments about admissibility. He agreed with this court that investigative hearsay and police opinion evidence were admissible as they pertained to the defence assertion of an inadequate police investigation: at para. 33, citing R. v. Dhillon (2002), 166 C.C.C. (3d) 262 (Ont. C.A.); R. v. Mallory, 2007 ONCA 46, 220 O.A.C. 239. See also Lisa Dufraimont, “Annotation to R. v. Van ” (2009), 65 C.R. (6th) 195 .
76In his reasons for the dissenting judges, Cromwell J., at para. 82, accepted the majority’s characterization of the opinion about Mr. Van’s guilt as clearly unwarranted and held that “[t]he opinions of the police on the question of an accused’s guilt have no place in the jury’s deliberations”: at para. 86. At para. 81, he cited the reasons of Major J. in D.D., where he said, at para. 49 :
A basic tenet of our law is that the usual witness may not give opinion evidence, but testify only to facts within his knowledge, observation and experience. This is a commendable principle since it is the task of the fact finder, whether a jury or judge alone, to decide what secondary inferences are to be drawn from the facts proved.
77Cromwell J. elaborated on the dangers of the officer’s opinion evidence in the following paragraph, which contains obvious parallels to the circumstances of this case, at para. 82:
It is worth remembering that there are at least three dangers in receiving opinion evidence of the sort the officer gave in this case. First, it usurped the function of the jury by drawing critical inferences — a conclusion about the respondent’s guilt — from the facts known to the witness. Second, it obscured the factual basis for the conclusions reached. In this case, it was at best unclear and at worst a likely inference that the officer’s opinion was based on evidence other than that which had been admitted before the jury. 2 Finally, there was a danger that, given the long experience and excellent career history of Det. Sgt. Nealon, the jury would attach undue weight to his opinion: see, for example, Graat v. The Queen, [1982] 2 S.C.R. 819, at pp. 839-40.
78All of the judges in Van agreed that, in the absence of an allegation of an inadequate investigation, the Crown is not permitted to adduce police opinion evidence (or investigative hearsay evidence). If such evidence is adduced, there must be a cautionary instruction that this type of evidence cannot be used to infer guilt.
79The admissibility of police opinion evidence has arisen in this court from time to time, sometimes in conjunction with demeanour evidence. For example, in R. v. Short, 2018 ONCA 1, 139 O.R. (3d) 1, the appellant was convicted of killing his wife. The defence took the position that the police had too quickly jumped to the conclusion that the appellant was responsible, to the exclusion of other suspects.
80In cross-examination, one of the police officers testified that, in his opinion, the appellant did not react to being questioned about the murder in the way that an innocent person would have reacted. Although the appeal was allowed on other grounds, the court addressed the obligations of the trial judge in these circumstances. Applying Van, Doherty J.A. held that the trial judge had to instruct the jury: (1) that the officer’s “opinion about the appellant’s veracity was irrelevant to their deliberations”; and (2) his “opinions about the appellant’s demeanour and the inferences that could be drawn from that demeanour could not be used by the jury as evidence of the appellant’s guilt”: at para. 58.
81Similarly, in R. v. Borel, 2021 ONCA 16, 153 O.R. (3d) 672, the accused was charged with attempted murder for setting the victim on fire. He gave a lengthy interview to the police in which he denied responsibility. At trial, the Crown adduced the evidence of the interviewing police officer. As in this case, the officer was very accomplished, with 27 years of experience, having worked in major crimes and homicide. As Nordheimer J.A. observed, at para. 30: “He made a point of telling the jury that he had interviewed approximately 500 accused persons during his 17 years as a criminal investigator.” Without objection, the officer gave evidence about the accused’s demeanour. He offered his opinion that his denials were “relatively weak” and that, based on his experience and training, “if someone’s in custody for an offence, a serious offence that they … did not commit, they would … likely be denying it strongly and asking why they’re in custody”.
82Nordheimer J.A. concluded that this opinion evidence was highly prejudicial. He relied on R. v. Quazi, 2014 ONCA 94, in which a police officer was permitted to give his opinion that the appellant’s demeanour during his police interview was indicative of guilt: at para. 36. In allowing the appeal in Quazi, this court held, at para. 7: “Such an opinion was irrelevant and should not have been permitted. Its intrusion into the trial record was highly prejudicial and contributed to the overall unfairness of the appellant’s trial.”
83In light of this line of authority, the opinion evidence offered by Det. Monette was inadmissible.
84Before considering the absence of a limiting instruction and the application of the curative proviso, I pause to consider an aspect of the Crown’s submissions. During the hearing of this appeal, Crown counsel asserted that, pursuant to Van, police opinion evidence is “inadmissible – full stop”. However, when dealing with the proviso, both in her factum and during the hearing, she made submissions that suggested that Det. Monette’s evidence had been properly received. These submissions relate to admissibility and I address them here.
85First, the Crown submits that the appellant’s position at trial – that his confession was false – was a suggestion that someone else was responsible for the murder and an implicit attack on the adequacy of the police investigation, bringing this case within the exception in Dhillon and Mallory. Second, the Crown submits that the impugned parts of Det. Monette’s evidence merely amounted to an explanation as to why the police took the appellant’s confessions seriously. Both submissions were said to be rooted in LeBel J.’s comments in Van, at paras. 37 and 39, that the application of the proviso must take account of the “context” in which the evidence was adduced.
86I cannot accept either of the Crown’s submissions, both of which are assertions of admissibility. A denial of liability and the contention that a purported confession is not truthful cannot be equated with an attack on the integrity of the investigation, particularly in circumstances like this, where the appellant was responsible for instigating the investigation into his involvement in the killing of Ms. Stewart. The appellant’s contention that he did not kill Ms. Stewart (and, by obvious implication, that someone else did) was incapable of amounting to an assertion that the police investigation must have been inadequate because it failed to focus on the actual suspect. If a simple denial of responsibility is all that is required, the exception in Mallory and Dhillon would be virtually limitless, providing an unreasonably broad gateway for the introduction of police narrative and opinion evidence, with all its attendant risks.
87The prospect of an allegation of an inadequate police investigation arose in a different context at trial. The trial Crown sought to have Det. Monette testify about receiving a tip from a confidential informant that linked the appellant to the murder. The trial judge disallowed this line of questioning, which would have elicited investigative hearsay. In the colloquy with counsel that followed, the trial judge said: “The defence better not open the door that there was a shoddy investigation if nothing was done prior to confession. They do that, then they’re opening a door.” There was no subsequent attack on the adequacy of the police investigation, in that context or any other.
88Similarly, the Crown’s submission that Det. Monette’s opinion was really just an explanation of why the police took the appellant’s confession seriously purports to rely upon a distinction without difference. It is clear that Det. Monette took the appellant’s confession seriously because he believed it was true, a point that was made very clear to the jury.
89Det. Monette’s comment was clearly opinion evidence, and in the absence of an attack on the adequacy of the investigation, it was inadmissible – full stop.
(2) The Lack of a Proper Caution
90All members of the Supreme Court in Van agreed that, given that the narrative hearsay and opinion evidence was admissible to defend against a claim of an inadequate investigation, the jury had to be instructed on the limited use of this evidence – i.e., that it could not constitute evidence of guilt. In Van, the trial judge failed to give that caution, leading to the dispute about the application of the proviso.
91The failure to give a limiting instruction was far more serious in this case. There was no path to admissibility for Det. Monette’s opinion. It was improperly before the jury for any purpose. Instead of the need for an instruction about the limited use of the evidence, the jury should have been told that the officer’s opinion was entirely irrelevant to their deliberations and should be completely disregarded. The fact that this highly prejudicial evidence had no legitimate claim to admissibility significantly adds to the burden to be borne by the proviso.
(3) The Curative Proviso (s. 686(1)(b)(iii))
92The Crown asks this court to apply the curative proviso in s. 686(1)(b)(iii) of the Code to dismiss the appeal. It submits that the error was “harmless … in its effect and did not prejudice the appellant or affect the verdict”.
93In applying s. 686(1)(b)(iii), the task is to determine whether there is a reasonable possibility that the verdict would have been different had the error not been made. If an appellate court concludes that there is a reasonable possibility that the outcome would have been different, the proviso cannot be applied: R. v. Bevan, [1993] 2 S.C.R. 599, at p. 617; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53. In Khan, at paras. 29-31, the Supreme Court confirmed that there are two scenarios where the curative proviso may be applied: (1) where the error is so harmless or trivial that it would make no difference to the outcome; or (2) even if the error is not minor, the evidence is so overwhelming that the trier of fact would inevitably convict.
94In Van, at para. 48, the majority concluded that failing to provide a cautionary instruction “had a sufficiently minor effect that it could not possibly have affected the verdict”. The minority concluded, at paras. 57-59, that the error was neither minor nor harmless. Understandably, the appellant favours the minority reasons in Van, whereas the Crown endorses the majority’s approach. But applying the proviso in this case is not as straightforward as simply choosing between the two. A qualitative analysis is required.
95The error in this case must be viewed in the context of the entire trial. Only then can its seriousness and impact be properly assessed.
96I start with the general observation that the evidence against the appellant was not overwhelming. As noted above, it took a long time to solve the case, partly because of the lack of eyewitnesses and the absence of any evidence linking the appellant to Ms. Stewart’s murder.
97The trial Crown’s case was built upon the appellant’s statements; the centrepiece of the prosecution was his video-recorded February 26 confession. It was common ground at trial that, unless the confession was accepted as truthful, the trial Crown would be unable to prove that the appellant killed Ms. Stewart. The trial judge made this clear to the jury. He told them that their “focus should be on the reliability of the [appellant’s] confession” and that they must be satisfied beyond a reasonable doubt that “the Crown has established that the confession is reliable and that those parts of the confession where Adrian Daou describes his unlawful killing of Jennifer Stewart are in fact true.” There were other aspects of the trial Crown’s case, including the appellant’s other statements, and the evidence concerning the Canadian Tire purchases. However, the value of all of this evidence was tethered to the reliability of the confession. Realistically, the confession was the case.
98The errors in this case went directly to the core of the trial Crown’s case and the critical issue the jury needed to decide: Was the confession true? This was far from straightforward. When the appellant made his confession, he was exhibiting the symptoms of schizophrenia. His motivation for confessing appeared to be a practical one – when he first called for the police, the appellant was desperate to be removed from custodial segregation. His stated motivation for killing Ms. Stewart was less clear, if not bizarre – he said that he wanted to be a “billionaire rap superstar”. He also spoke of cashing in the reward that was offered.
99The challenge of determining whether the confession was authentic was compounded by the appellant’s attempt to confess to killing another woman, which was almost immediately dismissed as demonstrably false. The dark backdrop to all of this was that a number of young women were murdered in the Ottawa area between 2008 and 2011. For the jury, determining the reliability of the confession would have been no easy task.
100However, the jury’s challenge may have been eased by Det. Monette’s opinion that the confession was truthful. His evidence may have alleviated hesitation or a lingering doubt in the minds of some jurors, or moved jurors who were on the fence to a finding that the confession was reliable. Recall, the trial judge told them that they must be satisfied of this fact beyond a reasonable doubt. The opinion could have helped some jurors cross the line between finding that the confession was probably reliable to being satisfied to the requisite standard.
101In Van, the impugned evidence, especially the opinion evidence, was limited in its scope. It was essentially a “one-off” comment by one of the officers. By contrast, in this case, Det. Monette’s evidence assumed a significant role. He was questioned carefully about how he formed his opinion that the confession was reliable. For the most part, defence counsel stayed away from this issue, simply asking Det. Monette about indications of supposed hold back information in the confession. This prompted the response that “it’s not just checking off boxes, … it’s more intuitive than that”. The trial Crown addressed this issue in re-examination by asking Det. Monette what he meant by this comment. For convenience, I repeat his answer to this question:
Certainly, I’m – I’m not just waiting for a person to regurgitate words that I think are – are, uh, important. It’s – it’s important that it all be explained in a context that’s – that’s believable and that is consistent and that is something that – that will hold water. And in this case, I believe that to be the case.
102Det. Monette’s resort to intuition made matters worse by conveying to the jury that he saw or knew things that other people could not see or know. His opinion was based on something the jurors could never share – his lived experience as a police officer. This was something Det. Monette referenced numerous times during his testimony, and which the trial judge mentioned in his final instructions.
103As Cromwell J. observed in Van, at para. 82, there is a real danger that this type of evidence will usurp the jury’s function by leading them to draw critical inferences. The risk was heightened because Det. Monette’s conclusion was based, at least in part, on intuition, or inherent knowledge, which would have been impervious to direct challenge by counsel, and not easy for a juror to ignore.
104Moreover, Det. Monette’s prominence and prestige in the eyes of the jury cannot be underestimated. He frequently reminded the jury of his qualifications and experience as a police officer. In Graat, although Dickson J. held that police opinion evidence concerning intoxication is admissible, he warned that, “there may be a tendency for judges and juries to let the opinion of police witnesses overwhelm the opinion evidence of other witnesses”: at p. 840. See also R. v. Lewis, 2012 ONCA 388, 284 C.C.C. (3d) 423, at para. 22.
105During the course of the trial, the jury heard evidence from an expert witness, a psychiatrist named Dr. Bradley Booth. Before being qualified as an expert, Dr. Booth was introduced to the jury by being taken through his education, training and experience. Even though he was not offered as an expert witness, Det. Monette was introduced in the same way. This no doubt enhanced his standing before the jury.
106To distinguish Van, the Crown relies on the fact that there were two categories of problematic evidence in that case – investigative hearsay and police opinion evidence. However, in this case, there was just one – police opinion evidence. But the difference between the cases is immaterial. As noted above, I consider the nature and impact of the evidence in this case to be far more serious, especially given the prominence of Det. Monette’s opinion. Not only was there no instruction to disregard his evidence, the trial judge reiterated Det. Monette’s qualifications and repeated his opinion that the appellant’s confession was reliable.
107The Crown further submits that aspects of the trial judge’s final instructions to the jury alleviated the impact of the wrongly admitted evidence and the lack of a specific limiting instruction. She relies on the fact that the trial judge told the jury that it was for them to decide the facts of the case. She also relies upon the proper instructions given on the standard and burden of proof, reasonable doubt, the presumption of innocence, and that the murder indictment was not evidence itself of guilt. I do not find this submission persuasive. All of these instructions are elemental components of a jury charge in a criminal case. The omission of any one of these would have come with its own set of serious problems but their inclusion could not undo the damage of the impugned evidence and the lack of a strong cautionary instruction.
108Lastly, the Crown relies on the lack of any objection to the admission of Det. Monette’s opinion evidence, or to the lack of any instruction. I am troubled by the failure to object, but such a failure is not determinative to the application of the proviso; it is simply one fact to consider: R. v. L.K., 2020 ONCA 262, at para. 15; R. v. Cook, 2020 ONCA 731, 153 O.R. (3d) 65, at paras. 68-71; and Borel, at para. 29.
109The trial judge did not receive the assistance he might have expected from trial counsel concerning the admissibility and subsequent management of this evidence at trial. Nonetheless, I agree with the appellant’s counsel that the lack of objection could not have been motivated by tactical considerations: R. v. McFarlane, 2020 ONCA 548, 393 C.C.C. (3d) 253, at para. 91. There was simply nothing to be gained by exposing the jury to the wide-ranging and damaging opinion evidence of Det. Monette. The result was an unfair trial. It cannot be said that the result would have been the same had these errors not been made.
H. Conclusion
110I would allow the appeal, set aside the conviction, and order a new trial.
Released: June 3, 2021 “KF” “Gary Trotter J.A.” “I agree. K. Feldman J.A.” “I agree. P. Lauwers J.A.”
Footnotes
- The audio recording indicates the appellant said he first hit Ms. Stewart “up here … like the top part”. The appellant used the words “up here” and “top part” several times throughout his statement. When asked about other instances of the appellant saying “up here” or “top part”, Det. Monette testified the appellant was gesturing at his upper torso, along his chest between his two shoulders, as he said those words.
- This danger that Cromwell J. identified has no application to this appeal.
