CITATION: R. v. Daou, 2016 ONSC 1067
COURT FILE NO.: 12-G30003
DATE: 2016/02/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
ADRIAN DAOU
Respondent
Tim Wightman and Louise Tansey for the Crown/Applicant
Robert Carew and Annik Wills for the Defence/Respondent
HEARD: September and December 2015
REASONS FOR Rulings
maranger j.
[1] On December 16, 2015 following a 6 week trial, a jury convicted Adrian Daou of first-degree murder in the death of Jennifer Stewart.
[2] Prior to the commencement of the trial, and following two days of argument at a pretrial motion, I ruled on the admissibility of certain discreditable conduct evidence relating to the accused.
[3] During the trial proper there were several rulings respecting the admissibility of evidence. One ruling dealt with the voluntariness of an utterance Daou made to Special Constables while being transported from the Ottawa Regional Detention Center to court on November 4, 2015. Another related to the admissibility of defence evidence to be elicited from a psychiatrist and a psychologist who were not being called to give expert testimony, but who dealt with Daou while he was incarcerated.
[4] Because of the need for expediency these rulings were given orally and were brief in nature; however, when delivered, I indicated that I would provide more detailed reasons for my rulings at a later date. What follows are those reasons.
Factual background:
[5] On August 20, 2010 Jennifer Stewart’s body was found in a parking lot beside an apartment building at 120 Alice Street in the City of Ottawa. Her body had suffered multiple “chop wounds” resulting from being stuck with a sharp-edged weapon. She was a sex trade worker who worked in the area of Ottawa commonly known as Vanier. Shortly after discovering her body, a homicide investigation involving the Ottawa Police Services major crime unit began. For over two years there were no suspects and the case grew stale.
[6] On February 25, 2013 Adrian Daou contacted a corrections officer at the Ottawa Regional Detention Centre and indicated that he wanted to confess to a murder. Members of the Ottawa Police major crime unit attended at the Detention Centre and obtained an audio recorded statement from Daou. He was cautioned and given his rights to counsel. He confessed to the murder of Jennifer Stewart during this initial interview.
[7] On February 26, 2013 Daou was transported to the Ottawa police station at 474 Elgin Street for a formal, video recorded interview. He was once again cautioned. What followed was a 4 hour and 35 minute interview with Detective John Monette. During the course of the interview he confessed to the murder of Jennifer Stewart. He provided to some extent certain details which the police had held back from the media. He also provided details of how, why and with what material he committed the homicide. Furthermore, he also confessed to having attempted to kill another sex trade worker, who operated under the name “Harmony”, during an assault in Gatineau, Québec. He indicated in the confession that his intention was to kill her. He also confessed to having committed a break and enter offence in the Sandy Hill area of Ottawa, at the residence of one Carolyne Wagar.
[8] The Ottawa Police Services determined that “Harmony” was in fact an individual named Anne Robitaille. She would provide testimony to corroborate that portion of the confession where she was attacked, while Carolyne Wagar could corroborate the probability that Daou broke into her apartment.
[9] Any review of the audio video recording of the interview leads one to the inescapable conclusion that Adrian Daou had mental health issues.
[10] On March 6, 2013 Daou advised correctional officers at the Detention Centre that he wished to confess to another murder, being the murder of a second prostitute by the name of Leanne Lawson. Two police officers attended at the Detention Centre and quickly surmised that the confession was false.
[11] On November 4, 2015 Adrian Daou was being transported from the Detention Centre to the Ottawa Courthouse. While he was being routinely searched by Special Constable Kevin Fahey in preparation for transportation, Daou became aware that he was going to be transported with other prisoners. This caused him to become agitated and he advised Special Constable Kevin Fahey that he was always transported alone, he feared for his safety and was afraid he was going to get punched out. A prisoner standing next to Daou told him that he had nothing to worry about at which point Daou uttered “I killed a hooker”.
[12] The reliability and veracity of the confession to the murder of Jennifer Stewart was one of the central issues of the trial.
[13] The primary position of the defence was that the confession was insufficiently reliable to warrant a conviction.
[14] In the alternative, the defence submitted that, in the event that the jury found the accused had committed the act of killing Jennifer Stewart, Adrian Daou should be found not criminally responsible on account of a mental disorder.
[15] To this end they filed a report from Dr. Bradley Booth, a psychiatrist, to provide expert opinion evidence on the issue of Adrian Daou’s criminal responsibility and mental health. Dr. Booth also testified at the trial.
Ruling on Discreditable Conduct Evidence:
[16] The assault/attack on Anne Robitaille and the break and enter into the apartment of Carolyne Wagar by Daou is evidence of prior or other discreditable conduct and as such would generally be regarded as inadmissible. See R v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31 and 101.
[17] As Handy sets out, the danger with this type of evidence is that it can prejudice an accused person in two ways. Firstly the trier of fact may be confused by the evidence and place more emphasis upon it then is justified (reasoning prejudice). Secondly, the trier of fact may decide to convict the accused on the basis that he is a bad person who has committed bad acts and therefore must have committed the specific act he is now being tried for (moral prejudice).
[18] In the case of the evidence relating to the attack on “Harmony” or Anne Robitaille, the sex trade worker, there is also the danger of the trier of fact engaging in propensity reasoning because of its similarities to the crime charged.
[19] There is an exception to the general rule where the probative value of the proffered evidence outweighs its prejudicial effect.
[20] The Ontario Court of Appeal in R v. B.(L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35 (C.A.), instructed trial judges to make the following inquiries when balancing the probative value of this type evidence against its prejudicial effect: 1) Is the conduct which forms the subject matter of the proposed evidence that of the accused? 2) If so, is the proposed evidence relevant and material? 3) If relevant and material, is the proposed evidence discreditable to the accused? 4) If discreditable, does its probative value outweigh its prejudicial effect?
[21] I came to the conclusion that the evidence respecting the attack against Anne Robitaille and the break and enter at Carolyne Wagar’s had probative value that outweighed any prejudicial effect. I did so for the following reasons:
- The evidence in question was relevant and material and formed part of an overall confession by the accused to the crime of first-degree murder;
- Adrian Daou, although confessing to the crime, pled not guilty, and through his counsel argued that the confession was unreliable, and consequently could not be relied upon in order to convict him of the first-degree murder of Jennifer Stewart;
- The evidence from Anne Robitaille and Carolyne Wagar could be used to support the proposition that those aspects of the confession were indeed accurate;
- The evidence could also assist the trier of fact in determining whether the confession to the killing of Jennifer Stewart is a true confession as opposed to a false confession. This is especially relevant in light of the false confession to the murder of the second prostitute made by the accused on March 6, 2013; and
- The prior attack and his stated intention during that event could also be used by the trier of fact to determine his intent in respect of the killing of Jennifer Stewart.
[22] Any prejudicial effect can be diminished by the appropriate instruction on what use the Jury can make of the evidence. In this case the instruction was given as a mid-trial instruction before the evidence was called and in the final charge at the conclusion of the trial.
Ruling on voluntariness of November 4, 2015 utterance:
[23] A voir dire was held mid-trial in this case regarding an utterance made by Adrian Daou on November 4, 2015. The utterance in question was “I killed a hooker” made to or in the presence of Special Constables while being searched for transportation to the Ottawa Courthouse from the Ottawa Regional Detention Centre.
[24] Every Special Constable present or nearby at the time the utterance was made testified at the voir dire including the following Special Constables: Butler, Collins, McGahey, Gray and Fahey. Two videos from the Detention Centre taken on November 4th, 2015 were also presented: one of the search by Special Constable Fahey and the other in the loading area just prior to Daou being placed in a vehicle.
[25] From the evidence presented at the voir dire I make the following findings of fact:
- On November 4, 2015th Adrian Daou was being transported from the Ottawa Regional Detention Centre to the Ottawa Courthouse for a court appearance.
- It is a routine procedure to search prisoners just prior to their being transported. Special Constables from the Ottawa Police Services are responsible for the transportation of prisoners to and from the courthouse and the Detention Centre.
- There is a specific area at the Detention Centre adjacent to the loading bays of the vehicles where the searches take place. On the date in question several prisoners were being transported and searched at the same time. A Special Constable is responsible for searching each prisoner. Special Constable Kevin Fahey was responsible for the search of Adrian Daou.
- During this process Daou became aware that he was going to be transported in the company of another prisoner. He was handcuffed to another prisoner named Kahnt. He protested. He told Special Constable Fahey that he was supposed be transported alone. Special Constable Fahey asked Special Constable Gray if this was correct. He was told it was not, at which point Daou became agitated and told Fahey that he was afraid he was going to get punched out, that he feared for his safety and that he should be transported alone because he was up on murder charges. Fahey said there were a number of prisoners on murder charges and that should not matter. The prisoner beside him said “don’t worry I have your back” at which point Daou said “I killed a hooker”.
- The entire incident happened very quickly lasting a matter of a few minutes.
- While being taken from this area of the Detention Centre to the area where the vehicles were located, the video discloses that Daou was agitated and showed some resistance.
- In the loading area it was determined that he could travel by himself, at which time Daou quickly calmed down.
[26] There was a preliminary issue raised by the Crown as to whether or not this utterance was made to a person in authority since Daou could have been saying it to a fellow prisoner and not to the Special Constable. I find that the utterance in question was made to both parties and consequently to a person in authority.
[27] Any statement made to a person in authority by an accused person has to be made freely and voluntarily. No statement made out of court by the accused person to a person in authority can be admitted into evidence against him unless the Crown establishes beyond a reasonable doubt that the statement was made freely and voluntarily. R v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449, at para 24.
[28] In the Supreme Court of Canada decisions of R v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, and R v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, the following fundamental principles were established for determining whether or not a confession, or inculpatory statement, made by the accused person to a person in authority is voluntary:
I. The court must take into account the following when deciding voluntariness: were there any threats promises or inducements made or offered, was there an atmosphere of oppression, was the accused of an operating mind, was there any improper police trickery used to obtain the statement.
II. The pre-eminent concern is whether or not the will of the accused was overborne by the conduct of the police. The ultimate concern being the protection and right of the individual to make a meaningful choice as to whether or not to speak to the authorities.
III. In determining whether or not the accused’s will was unfairly overborne the test is an objective one that takes into account all the relevant circumstances including the personal circumstances of the accused.
[29] In this particular case this was an out-of-court utterance that was spontaneously made without Daou ever being asked a single question by anyone in authority. The Crown has satisfied me beyond a reasonable doubt that the statement was voluntary.
[30] The argument against voluntariness raised by the defence was that the accused so feared for his safety that his will was overborne when he blurted out “I killed a hooker”. My review of the evidence did not support that proposition. Nothing the Special Constables did at any point in time could have been said to compel Daou to make the statement. His state of agitation was because he wanted to be transported alone: it did not compel him to make the statement. He made it as an explanation for not wanting to be transported with other prisoners. It was unsolicited, it was spontaneous, and it was voluntary.
Ruling on the Defence Application to call evidence from Dr. Shields and Dr. Braithwaite:
[31] The defence applied to call evidence from Dr. Shields and Dr. Brathwaite, the psychologist and psychiatrist who saw and spoke to Adrian Daou while he was in custody at the Ottawa Regional Detention Centre. The stated purpose for calling this evidence was to hear their observations about the demeanour and mannerisms of Daou in the weeks prior to the confession. It was also to elicit evidence of all the conversations they had with Adrian Daou before, during, and after his confessions. The defence argued that this evidence was an exception to the hearsay rule and was admissible as it went to his state of mind. The defence also indicated that these doctors were specifically not being called as expert witnesses.
[32] The Crown argued that they should not be permitted to testify at all because they were for all intents and purposes being presented as expert witnesses and primarily as a means of supporting the report and findings of Dr. Bradley Booth and to present inadmissible hearsay evidence from Adrian Daou. The Crown further argued that the accused was not going to testify and that this was a means of obtaining evidence from him indirectly.
[33] I allowed Dr. Brathwaite and Dr. Shields to testify but with certain specific restrictions:
They were not to provide an opinion as to Adrian Daou’s mental health (i.e. a diagnosis), or any evidence of the medication the psychiatrist prescribed as it was indirect evidence of a diagnosis.
The only out-of-court utterances made by Daou that either witness could testify to were those made prior to the confessions following February 25, 2013.
They were also allowed to testify as to their observations about his demeanour and mannerisms at all of the times that they saw him.
[34] The basis for this ruling was as follows:
- The evidence that was going to be elicited from these two witnesses concerning conversations they had with the accused was already referenced in the material and report of the expert witness Dr. Bradley Booth. The weight attached to the evidence is important in the overall analysis of the expert’s opinion;
- I accept the Crown’s argument that to allow them to give any kind of diagnosis whether directly or indirectly (what prescriptions were provided) results in providing expert opinion evidence on the mental health/NCR issue as it relates to Adrian Daou. No report has ever been filed by either Dr. Shields or Dr. Brathwaite, and the defence specifically indicated they were not being called as experts;
- In terms of calling evidence as to the state of mind of the accused their observations regarding his demeanour and mannerisms during their interviews with him was allowed as these were not out-of-court utterances made by the accused. The evidence was relevant to the issue state of mind and admissible;
- An accused person is precluded from eliciting from witnesses self-serving statements which he has previously made. Statements which infringe this rule are properly characterised as hearsay. See R v. Campbell (1977), 1977 1191 (ON CA), 17 O.R. (2d) 673 (C.A.), at p. 68
- In this case a differentiation was made between out-of-court utterances prior to the confessions and those made post-confession. Pre-confession statements were allowed; post-confession statements were not. Pre-confession out of court utterances were allowed as state of mind evidence. The statements following the confessions were made in circumstances of suspicion and as such were characterized as self-serving inadmissible hearsay. See R v. Brideau, 2015 NBQB 52, 433 N.B.R. (2d) 172, at paras. 28-30.
[35] While there were a number of other rulings made during the trial the reasons given orally at the time, were in my estimation adequate.
Maranger J.
Released: February 10, 2016
CITATION: R. v. Daou, 2016 ONSC 1067
COURT FILE NO.: 12-G30003
DATE: 2016/02/10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
– and –
ADRIAN DAOU
Respondent
REASONS FOR RULINGS
Maranger J.
Released: February 10, 2016