



C
OURT
    OF APPE
AL FOR ONTARIO

CITATION: R. v. Daou, 2021 ONCA 380

DATE: 20210603

DOCKET:
C
61987

Feldman, Lauwers and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adrian Daou

Appellant

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.

Trotter
    J.A.:

A.

Introduction

[1]

The appellant was convicted of first degree
    murder for killing Jennifer Stewart. He was sentenced to life imprisonment with
    no parole for 25 years.

[2]

The 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.

[3]

At 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.

[4]

The 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.

[5]

The officers 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 judges final instructions, and the
    officers opinion repeated.

[6]

On 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
.

[7]

I would decline to apply the proviso. Without a
    proper limiting instruction, the detailed opinion of this senior police officer
    seriously risked dominating the jurys consideration of the veracity of the confession
    and, ultimately, the appellants 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

[8]

Jennifer 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.

[9]

There 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.

[10]

The 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. Stewarts injuries;
    (3) the exact location of the attack; and (4) details about Ms. Stewarts
    clothing. The trial Crown alleged that, because the appellant disclosed some of
    these details in his confessions, he was the killer.

[11]

The defence relied on inaccuracies in the
    appellants 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. Stewarts 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. Stewarts 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.
    Stewarts murder.

[12]

Over 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. Stewarts 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.

[13]

In addition to the evidence concerning the
    circumstances of Ms. Stewarts death and the appellants 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 Appellants Statements

(1)

Introduction

[14]

The cornerstone of the trial Crowns case was
    comprised of the appellants 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 Appellants Mental Condition

[15]

At 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.

[16]

At 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 appellants 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.

[17]

Dr. 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

[18]

On 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.

[19]

The 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.

[20]

The 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.

[21]

He 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.

[22]

When 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.

[23]

Initially, 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: Thats 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.

[24]

When asked about his motivation for killing Ms.
    Stewart, the appellant said: I dont 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.

[25]

After 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

[26]

On 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.

[27]

At 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.

[28]

In 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 painters 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.

[29]

The 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 McDonalds 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.

[30]

The 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.

[31]

It 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.

[32]

Shortly
    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.

[33]

The 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.

[34]

As 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.

[35]

Fully 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.

[36]

The 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.

[37]

The 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.

[38]

After 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 fathers 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 appellants 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. Stewarts body.

[39]

At 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.

[40]

The appellant later joined Det. Wilcox and two
    other detectives on a ride-along to the scene of Ms. Stewarts 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.

[41]

At the end of this interview, the appellant also
    confessed to two other crimes, an attempted homicide and a break and enter.

[42]

First, 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.

[43]

Second, the appellant described a break and
    enter he committed in 2012. He broke into a womans house on Sweetland Avenue
    in Ottawas 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.

[44]

The trial Crown called both women as witnesses and
    both confirmed the appellants confessions to these unrelated crimes.

D.

The Appellants Other Statements

[45]

The trial Crown also relied on other statements
    the appellant made about Ms. Stewarts murder.

(1)

Statements to Cristal Gordon

[46]

Cristal Gordon was the appellants 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.

[47]

First, 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.
    Stewarts 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.

[48]

The 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 McDonalds truck that made him decide that this was the day that it
    had to be done.

[49]

Ms. 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 womans name.

(2)

False Confession to Killing Another Woman

[50]

When 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

[51]

The 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

[52]

Other than the appellants 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. Stewarts
    murder.

E.

The Opinion Evidence

[53]

As 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.

[54]

The 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. Stewarts murder was not a cold case, he commented: [Det. Wilcox] and I
    never stopped working on Jens case. He routinely referred to Ms. Stewart as Jennifer
    or Jen throughout his testimony.


[55]

I 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 appellants February 26 confession, was adduced through careful questioning
    by the trial Crown, with no objection from trial counsel.

[56]

It is necessary to set out the relevant parts of
    Det. Monettes 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.

[57]

The problematic part of the testimony related to
    the appellants 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 youre telling me,
    shortly followed by, Okay. Cause right now Im not convinced that youre
    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.
Ive
    been a police officer for 29 years. Ive been in homicide for roughly 18. I
    speak to a lot of people in interviews and interrogations on a fairly regular
    basis. Ive had people confess to me for things that they havent 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
    dont want to in any way, shape or form put an innocent man in a situation he doesnt
    belong to be in. Simply, I was interested in discerning that he was telling me the
    truth.

Q.      Okay.
    Im 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. Stewarts death
. [Emphasis added.]

[58]

I 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 appellants confessions were true, and he was in fact the
    killer.

[59]

The 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 Stewarts death

A.
Thats 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 weve 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 youre  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. Stewarts body
    while standing and while on the ground?

A.      Thats 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. Id attended the autopsy, I was aware of the number of blows inflicted
    by Dr. Milroys account, as weve heard. I was aware of the type of weapon that
    was described to have been used as a significant edged weapon. Id attend the
    crime scene, Id 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.]

[60]

In 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: Im not simply looking for words, its not just checking off boxes,
    its, its more intuitive than that.

[61]

The 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, youre looking for hold back information to
    come from Mr. Daou, thats what youre observing?

A.      Yes.

Q.      And
    you responded by using this phrase, Its not just ticking off boxes, its more
    intuitive than that.

A.      Very much so.

Q.      Can
    you explain what you meant when you gave that answer?

A.
Certainly.
    Im  Im not just waiting for a person to regurgitate words that I think are 
    are, uh, important. Its  its important that it all be explained in a context
    thats  thats 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.]

[62]

As 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 Judges Instructions to the Jury

[63]

The trial judge referred to the appellants
    February 26 confession, along with Det. Monettes 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.

[64]

When 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 Stewarts 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 Stewarts unlawful death.
There is no direct or forensic evidence
    that links the accused to Jennifer Stewarts death. Your focus should be on the
    reliability of the accuseds confession.



To conclude that Adrian Daou is the person
    responsible for Jennifer Stewarts 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.]

[65]

The 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.]

[66]

No objection was taken to any of these
    instructions.

G.

Analysis

(1)

Admissibility


[67]

In
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.

[68]

Det. 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. Monettes opinion about the truthfulness of the
    appellants 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.

[69]

Generally 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 persons ability to drive was impaired by
    the consumption of alcohol.

[70]

In 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 persons 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.

[71]

The 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 Crowns key witnesses, a police
    officer, offered his opinion on Mr. Vans 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, revd 2009 SCC 22, [2009] 1 S.C.R. 716.

[72]

By a majority of 5:4, the Supreme Court overturned
    this courts 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.

[73]

Although 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.

[74]

For the majority, LeBel J. held, at para. 39,
    the evidence of the officers statement of his opinion of the respondents
    guilt was
unwarranted and clearly foreclosed by the jurisprudence
, due
    to the danger of the jury uncritically accepting the witnesss 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).

[75]

LeBel 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.

[76]

In his reasons for the dissenting judges,
    Cromwell J., at para. 82, accepted the majoritys characterization of the
    opinion about Mr. Vans guilt as clearly unwarranted and held that [t]he
    opinions of the police on the question of an accuseds guilt have no place in
    the jurys 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.

[77]

Cromwell J. elaborated on the dangers of the officers
    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 respondents 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 officers 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.

[78]

All 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.

[79]

The 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.

[80]

In
    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
    officers opinion about the appellants veracity was irrelevant to their
    deliberations; and (2) his opinions about the appellants demeanour and the
    inferences that could be drawn from that demeanour could not be used by the
    jury as evidence of the appellants guilt: at para. 58.

[81]

Similarly, 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 accuseds demeanour. He offered
    his opinion that his denials were relatively weak and that, based on his
    experience and training, if someones in custody for an offence, a serious
    offence that they  did not commit, they would  likely be denying it strongly
    and asking why theyre in custody.

[82]

Nordheimer 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 appellants 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 appellants trial.

[83]

In light of this line of authority, the opinion
    evidence offered by Det. Monette was inadmissible.

[84]

Before considering the absence of a limiting
    instruction and the application of the curative proviso, I pause to consider an
    aspect of the Crowns 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. Monettes evidence had been properly
    received. These submissions relate to admissibility and I address them here.

[85]

First, the Crown submits that the appellants
    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. Monettes
    evidence merely amounted to an explanation as to why the police took the
    appellants 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.

[86]

I cannot accept either of the Crowns
    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
    appellants 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.

[87]

The 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 theyre opening a door. There was
    no subsequent attack on the adequacy of the police investigation, in that
    context or any other.

[88]

Similarly, the Crowns submission that Det.
    Monettes opinion was really just an explanation of why the police took the
    appellants confession seriously purports to rely upon a distinction without
    difference. It is clear that Det. Monette took the appellants confession
    seriously
because
he
    believed it was true, a point that was made very clear to the jury.

[89]

Det. Monettes 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

[90]

All 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.


[91]

The failure to give a
    limiting instruction was far more serious in this case. T
here was no path to admissibility for Det. Monettes 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
    officers 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))

[92]

The 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.

[93]

In 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.

[94]

In
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 majoritys approach. But applying
    the proviso in this case is not as straightforward as simply choosing between
    the two. A qualitative analysis is required.

[95]

The error in this case must be viewed in the
    context of the entire trial. Only then can its seriousness and impact be
    properly assessed.

[96]

I 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. Stewarts murder.

[97]

The trial Crowns case was built upon the
    appellants 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
    [appellants] 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 Crowns
    case, including the appellants 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.

[98]

The errors in this case went directly to the
    core of the trial Crowns 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.

[99]

The challenge of determining whether the
    confession was authentic was compounded by the appellants 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.

[100]

However, the jurys challenge may have been eased by Det. Monettes
    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.

[101]

In
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. Monettes 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 its not just checking off
    boxes,  its 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, Im  Im not just waiting for a
    person to regurgitate words that I think are  are, uh, important. Its  its
    important that it all be explained in a context thats  thats 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.

[102]

Det. Monettes 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.

[103]

As Cromwell J. observed in
Van
, at para. 82, there is a real danger that this type of evidence
    will usurp the jurys function by leading them to draw critical inferences. The
    risk was heightened because Det. Monettes 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.

[104]

Moreover, Det. Monettes 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.

[105]

During 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.

[106]

To 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. Monettes opinion. Not only was there no instruction to
    disregard his evidence, the trial judge reiterated Det. Monettes qualifications
    and repeated his opinion that the appellants confession was reliable.

[107]

The Crown further submits that aspects of the trial judges 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.

[108]

Lastly, the Crown relies on the lack of any objection to the
    admission of Det. Monettes 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.

[109]

The 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 appellants
    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

[110]

I 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.





[1]

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.



[2]

This danger that Cromwell J. identified has no application
    to this appeal.


