



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Campione, 2015 ONCA 67

DATE: 20150202

DOCKET: C54939

Blair, Pepall and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frances Elaine Campione

Appellant

Joseph Di Luca and Erin Dann, for the appellant

Joan Barrett and Katie Doherty, for the respondent

Heard: November 26, 2014

On appeal from the convictions entered on November 15,
    2011, by Justice Alfred J. Stong of the Superior Court of Justice, sitting with
    a jury.

R.A. Blair J.A.:

Overview

[1]

The factual situation underlying this appeal is both tragic and
    horrific.

[2]

The appellant is a troubled woman with a history of mental illness and
    delusional conduct and a destructive marital relationship.  On October 2, 2006,
    she killed her two daughters, aged nineteen months and three years, by drowning
    them in the family bathtub.

[3]

The appellant then dried and combed the girls hair, dressed them in
    pyjamas, earrings and necklaces, and placed them in bed under the covers
    holding hands.  She surrounded them with stuffed animals and a doll and wrapped
    rosary beads around their interlocking hands.  She then attempted,
    unsuccessfully, to commit suicide.

[4]

A lengthy video filmed by the appellant with scenes before and after the
    killings vividly recorded the anger, the pathos, and the sad reality
    surrounding the occasion.

[5]

At trial, her defence was that she was not criminally responsible for
    her acts by reason of mental disorder (NCR) because she was suffering from a
    psychotic disorder that rendered her incapable of making rational choices i.e.,
    of knowing that her acts were morally wrong.  The defence theory was that the
    killings were  from her perspective  an altruistic act driven by her
    psychotic delusions; she believed that the only way to save her children from
    harm at the hands of her estranged husband and his family was to send them to
    heaven where they would be safe in Gods hands (and where she would be to
    protect them as well).

[6]

The Crowns theory was that the killings were acts of vengeance directed
    against her estranged husband and family, and carried out in the midst of a
    bitter custody battle in which the appellant risked losing the children because
    her husband was manoeuvring to have the state of her mental health be revealed
    in court.

[7]

At her trial, the jury rejected the appellants NCR defence and
    convicted her of first degree murder in the deaths of both children.

[8]

She appeals those convictions and asks that they be quashed and a new
    trial ordered.

[9]

For the reasons that follow, I would dismiss the appeal.

The Factual Background

[10]

Much
    of the appellants history of mental illness can be traced to her domestic
    environment.  The relationship between the appellant and her husband (the father
    of their children) was tumultuous from the outset.  The appellant did not
    testify at trial, but told psychiatrists about multiple occasions on which she says
    she was the victim of his beatings  before, during, and after her pregnancies. 
    The appellant left in June 2005 after Mr. Campione is said to have struck
    Serena, the oldest child, and took the girls to the Barrie Womens Shelter,
    where she stayed for some time.

[11]

She
    did not feel safe going back to the marital home and became convinced that
    there was a conspiracy in which her husband, his family, and the mafia were
    following her and trying to eliminate and replace her. She became paranoid and
    delusional about these things.  On three occasions  in October 2005, April
    2006 and June 2006  the appellant was admitted to hospital for mental illness,
    including an attempted suicide.  At one point she told her sister, If I cant
    have the kids, no one else can.

[12]

There
    were ongoing custody proceedings regarding the children.  About a week before
    the children were killed, Mr. Campione applied for increased access and the
    appointment of a Childrens Lawyer.  The supporting materials referred to the
    appellants mental health breakdown and to the alleged deplorable
    conditions in which the girls were said to be living at the appellants
    apartment.

[13]

On
    the day of the offence, the appellant was driven to her lawyers office by
    another woman.  She learned that her husband was attempting to have her medical
    records released in court.  She told her driver on the way home that she felt
    the Campiones were using her mental illness to get custody of the girls.  Later
    that day, she obtained a letter from her building superintendent stating that
    at the time of his annual inspection her apartment was well-maintained, orderly
    and clean.  She also visited a friend and neighbour, telling her that she had
    two sets of sheets and a girls coat to give away; she said that Serena would
    never grow big enough to fit the coat and that the girls would never be out of
    their toddler beds.  She also left a message with a support worker at the
    Barrie Womens Shelter (not received until the next day) stating that she felt
    railroaded by the legal system and that it had failed her and the children.

[14]

The
    video graphically conveys the events of that evening.  It contains a number of
    scenes.

[15]

Those
    covering the period before the childrens deaths pan the apartment in a way
    designed to demonstrate its suitability as a home for the children.  They also
    show the children happily and contentedly playing with toys, singing and
    dancing, and talking to their mother.  In one scene the youngest child is
    filmed in the bathtub being comforted by her mother who was singing Twinkle,
    Twinkle Little Star to her.  But there is also anger expressed at the
    appellants husband and his father.  The appellant says she hopes they burn in
    hell for their sins; she talks about the assaults and the mental and emotional
    abuse inflicted on her and the children; she says she did everything to protect
    her girls and that she cried out for help but to no avail.

[16]

In
    the segments of the video following their deaths, the appellant is sitting
    alone on the couch, crying and speaking directly to the camcorder.  She tells
    of her attempt to overdose that didnt work.  She is aware that the children
    are dead.  She expresses her hatred for Mr. Campione and deplores his and his
    familys cruel and violent treatment.  She denies being mentally ill.  The last
    scene is recorded the morning after the events.

[17]

Among
    her statements were the following:

·

Its morning and our babies are in heaven.

·

I hope this is what you wanted.  Youve wiped out your entire
    family because you couldnt have it your way.  I hate you.

·

Now you deal with it.  You deal with this for the rest of your life.

·

I hate you.  I truly, truly hate you.  You can take your
    engagement ring and you can shove it where the sun dont shine because it is
    cursed.

·

Im not mentally ill.  I dont care what people say.

·

Nobody would listen and now people are probably saying  theyre
    saying, how could she have done this?  Well there must have been a mental 
    mental illness for her to do what she did to her children.  There wasnt.

·

I want you to go to jail for a very long time.  I want you to
    know that ya destroyed this family.

[18]

The
    appellant also talked about wanting to take my babies to the safe haven and
    about God being the only one who can protect her and the girls:

Theyre protected by God, thank God.  I thank him because
    theres no way I could have them with you.  Youre a hideous monster.



Im just going to God cuz God is the only one who cares and can
    protect me cuz you are the devil, Leo.  You are the psychotic devil and I
    shoulda stayed away from you from the first time you beat me when I was  first
    met you  At least the girls and I will be together in heaven protected and
    safe from you.  You cant hurt us, you cant torture us. You cant bother me
    anymore.  You cant sit there and control me.

[19]

Early
    the next morning, the appellant called the police and told them her two
    children were dead.  When asked what happened she said she didnt know and
    didnt remember. She said that she had taken a whole bunch of anti-psychotics
    cuz [she] didnt  wanna take it anymore.  When the police arrived at her home
    and asked if she had any children, she replied, Yes, theyre dead in my bed. 
    The appellant had left burial instructions for herself and the children.

[20]

The
    appellant gave a statement to police in which she said that she knew she will
    burn in sin and will have to answer to God for what she had done and that
    people would view her as a monster.  In a subsequent statement during a
    telephone call from jail to a neighbour, the appellant described how she had
    killed the children.  She said that they were in the bathtub, blowing bubbles,
    and that she had held their heads down.  She dried them off, dried their hair,
    dressed them, and put them to bed.  She felt that the girls were in a better
    place.

The Parties Expert Evidence

[21]

The
    Crown called Dr. Hucker as an expert witness, the defence, Dr. McMaster.  Both
    experts agreed that the appellant had a mental disorder at the time of the
    offence  Psychosis Not Otherwise Specified  together with a major depressive
    disorder, post-traumatic stress disorder, symptoms of anxiety, and a personality
    disorder with borderline and dependent traits. The personality disorder
    explained the appellants difficulties with impulse control.

[22]

Doctors
    Hucker and McMaster also agreed that the appellant was capable of appreciating
    the nature and quality of her acts and that she knew they were
legally
    wrong
.  Where they differed was on whether the appellant had the capacity
    to know that her acts were
morally wrong
.

[23]

In
    Dr. McMasters opinion, the appellant knew right from wrong in a general sense,
    but did not have the capacity to apply that information to her own situation. 
    The act was likely an altruistic killing in the sense that the appellant had
    lost touch with reality and killed her daughters as a last resort, believing
    they were unsafe on earth and that by sending them to heaven she was providing
    them with a safe haven; she intended to be there as well, to protect them.

[24]

In
    Dr. Huckers opinion, the appellant had the capacity to understand the moral
    wrongfulness of her acts.  He concluded that anger was the driving force behind
    the appellants actions.  The killings were an act of anger and revenge directed
    at the appellants estranged husband and the Campione family; she chose to kill
    the children rather than to allow them to fall into their hands.

[25]

Whether
    the appellant had the capacity to know that her acts were
morally wrong
was therefore the central issue at trial.  The jury accepted that she did.

The Grounds of Appeal

[26]

The
    appellant raises three grounds of appeal.  She submits that the trial judge
    erred:

(a) in providing confusing and
    unnecessary directions to the jury on the meaning of moral wrongfulness by
    incorporating a passage from this Courts decision in
R. v. Ross
, 2009
    ONCA 149, 246 O.A.C. 201, into his instructions;

(b) by failing to caution the jury with
    respect to a comment on the law made by the Crowns expert, Dr. Hucker (this
    error tying into the first); and

(c) by giving an unfair and prejudicial
    caution in respect of the evidence of the defence expert, Dr. McMaster.

[27]

The
    first two of these grounds overlap in the appellants argument, and the
    discussion of them below will at times, as well.

Analysis

(1)

Was there an Error in the Charge on Moral Wrongfulness?

[28]

Section
    16(1) of the
Criminal Code
states:

No person is criminally responsible for an act committed or an
    omission made while suffering from a mental disorder that rendered the person
    incapable of appreciating the nature and quality of the act or omission or of
    knowing that it was wrong.

[29]

The
    issue at trial was whether the appellant was incapable of knowing that her acts
    were wrong.  As noted above, the experts agreed that she was capable of
    appreciating the nature and quality of her acts, and that she understood the
    killings were legally wrong.  They differed, however, on whether she had the
    capacity to understand that they were morally wrong.

[30]

The
    concept of moral wrongfulness in this context has been established by the
    Supreme Court of Canada in
R. v. Chaulk
, [1990] 3 S.C.R. 1303,
R.
    v. Oommen
, [1994] 2 S.C.R. 507, and their progeny.  The focus is not on
    whether the accused lacks the general capacity to know right from wrong, but
    rather on whether he or she is deprived  by reason of a mental disorder (including,
    in some cases, delusions)  of the capacity to know that the particular act is
    right or wrong having regard to the everyday standards of reasonable people:
Oommen
,
    at pp. 516-20.  It follows that not every mental illness or delusion-driven
    subjective view will qualify an accused for the s. 16 defence.  As Lamer C.J.C.
    stated in
R. v. Ratti
, [1991] 1 S.C.R. 68, at p. 80:

It is not sufficient to decide that the appellants act was a
    result of his delusion.  Even if the act was motivated by the delusion, the
    appellant will be convicted if he was capable of knowing, in spite of such
    delusion, that the act in the particular circumstances would have been morally
    condemned by reasonable members of society.

[31]

Moral
    wrongfulness as contemplated in s. 16 is a slippery concept to apply.  However,
    this Court very succinctly summarized the relevant considerations in
Ross
,
    at para. 27, when it stated that a subjective belief by the accused that his
    conduct was justifiable will not spare him from criminal responsibility even if
    his personal views or beliefs were driven by mental disorder, as long as he
    retained the capacity to know that it was regarded as wrong on a societal
    standard: see also
R. v. Woodward
, 2009 ONCA 911, [2009] O.J. No.
    5484, at para. 5.

The Ross Instruction and its Ripple Effect

[32]

The
    appellant does not dispute that this is the law.  Nor does she dispute that the
    trial judge properly instructed the jury on the law as set out in
Chaulk

and
Oommen
.  She argues, however, that he erred by inserting into
    his instructions an additional instruction tracking this Courts words in
Ross
.
The impugned passage in the charge is the following:

Our Court of Appeal has put it more succinctly saying that a
    subjective belief by the accused that his conduct was justifiable will not
    spare him from criminal responsibility even if his personal views or beliefs
    were driven by mental disorder, as long as he retained the capacity to know
    that it was regarded as wrong on a societal standard.

[33]

Although
    conceding that the foregoing instruction is an accurate statement of the law, the
    appellant argues that its inclusion in the jury charge was unnecessary and
    potentially confusing for the jurors.  It was unnecessary because the charge
    already contained the appropriate language from
Chaulk
and
Oommen
,
    and the point in
Ross
was overly subtle given the facts facing the
    jury.  It was potentially confusing because it may have misled the jurors into
    thinking that the test for a successful NCR defence had an objective component whereas,
    in the appellants submission, the test is subjective.

[34]

To
    bolster this point, the appellant submits the proof of the pudding is in the
    fact that the Crowns expert, Dr. Hucker, fell error to the same
    misunderstanding by basing his opinion on an objective test.  Why, then, would
    not the jury?  The problem was further aggravated by the trial judges failure
    to correct the error in Dr. Huckers approach, thereby reinforcing it and
    clothing the misunderstanding in an experts opinion.

[35]

It
    is at this point that the appellants argument about the
Ross

passage
    and the alleged error underlying Dr. Huckers evidence intersect.  I will
    return to this issue shortly, but will first address the appellants complaint
    about the
Ross
passage itself.

The Alleged Error of the Ross Instruction

[36]

As
    I understand the gist of Ms. Danns careful argument, it is the following.  The
Ross
passage  albeit an accurate statement of the law  may better be
    characterized as a useful shorthand summary of the
Chaulk/Oommen
jurisprudence that is understandable to judges, lawyers and legal academics. 
    However, like many shorthand summaries, it may lack something in the details
    and in that way may lead lay jurors to misunderstand the actual state of that
    law.  She accepts that the morality of an accuseds acts is to be measured
    against societal standards, but argues that the
Ross
passage over-emphasizes
    this standard, at the expense of an accuseds subjective belief in the
    justifiability of his or her acts; it leaves open the suggestion that the
    question in assessing moral wrongness is what a reasonable person in the
    accuseds circumstances would have done.  The resulting risk is that the jury
    may impose a reasonable person standard on an accused seeking to establish an
    NCR defence.

[37]

Ms.
    Dann submits that the test is subjective in this sense: an accused who honestly
    believes that his or her actions are morally justifiable in line with normal
    societal standards, still qualifies for an NCR defence no matter how
    unreasonable that belief may be.  The appellants honest belief is not to be
    measured against what a reasonable person, suffering from the same delusions,
    would have done in the circumstances.  In the context of this case, Ms. Dann
    submits that the question for the jury was whether [the appellants] delusions
    so affected her perception of reality that she honestly believed killing was
    the right thing to do, according to normal societal standards.

[38]

I
    reject the argument that the
Ross
passage was confusing.  In my view, the
    argument is overly intricate and it misplaces the focus of the inquiry.  I say
    this for the following reasons.

[39]

The
    ultimate issue for the jurors to determine was whether  in spite of her
    delusions and any honest belief in the justifiability of her actions  the
    appellant had the capacity to know that those actions were contrary to
    societys moral standards.  The centrepiece of the inquiry is her
capacity
    to know and to make that choice
; it is not the level of honesty or
    unreasonableness with which she may have held her beliefs.  Concentrating on
    the latter unduly complicates the inquiry for the very reason the appellant
    raises in support of her argument; it leads to the application of
    reasonableness considerations to the appellants delusions and subjective
    belief.

[40]

In
    my opinion, the
Ross
passage drew the jurors attention to the issue of
    capacity in a clear and succinct fashion.  Indeed, it very closely parallels
    the statement made by Lamer C.J.C., in
Ratti
, cited earlier in these
    reasons:

It is not sufficient to decide that the appellants act was a
    result of his delusion.  Even if the act was motivated by the delusion, the
    appellant will be convicted if he was capable of knowing, in spite of such
    delusion, that the act in the particular circumstances would have been morally
    condemned by reasonable members of society.

[41]

In
    short, a subjective, but honest belief in the
justifiability
of the
    acts  however unreasonable that belief may be  is not sufficient, alone, to
    ground an NCR defence, because an individual accuseds personal sense of
    justifiability is not sufficient.  The inquiry goes further.  The accused
    persons mental disorder must also render him or her
incapable
of
    knowing that the acts in question are morally wrong as measured against
    societal standards, and therefore incapable of making the choice necessary to
    act in accordance with those standards.

[42]

The
Ross
passage made this clear.  I do not accept that, read alone or in
    the context of the charge as a whole relating to the NCR defence, it creates a
    potential risk of deflecting the jurors attention from the issue they were to
    determine.  Nor do I accept that it was unnecessary.

[43]

The
Ross
passage was apposite because it summarized the standard against
    which the jury was to measure the conduct of the appellant in the context of
    the NCR defence.  The live issue at trial was whether the jury would accept a
    version of the facts that supported Dr. McMasters altruistic killings
    opinion or a version of the facts that supported Dr. Huckers anger killings
    opinion.

[44]

Dr.
    McMasters view was that the appellant honestly believed that killing her
    children was the right thing to do because the only way she could keep them
    safe from her estranged husband and his family was to send them to heaven where
    she would be with them and they would be protected by God.  If the jurors
    accepted this version of the facts, they could conclude that the appellant did
    not have the capacity to know that her acts were wrong in light of societys
    moral standards.  If they reached that conclusion, they would find the
    appellant NCR.

[45]

Dr.
    Huckers view, on the other hand, was that the appellant knew that what she was
    doing was wrong by societal standards but committed the acts in any event because
    she was angry and, if she couldnt have the children, no one would.  If the jurors
    accepted this version of the facts, they could not find the appellant NCR, and
    they would convict.

[46]

The
Ross
passage focussed attention on the assessment the jury had to make
    regarding the appellants capacity and provided the legal framework within
    which it was to be exercised.  At the same time, as a statement of the law, it
    was consistent with trial judges overall narrative relating to the NCR
    defence.  The appellant does not quarrel with these other aspects of that
    portion of the charge, and accepts that they mirror the law as settled in
Chaulk
and
Oommen
.  For example, the
Ross

passage is preceded
    by this instruction:

You should ask yourselves whether her mental state was so
    disordered that she was unable to rationally consider whether her act was right
    or wrong.  Put another way,
did Ms. Campione have the capacity to know that
    her acts were something she ought not to do in the eyes of ordinary, reasonable
    people
.

An accused person is not deprived of the mental disorder
    defence simply because she knows that a particular act is contrary to law and
    that she knows, generally, that she should not commit an act that is a crime.
It
    is possible that a person may be aware that it is ordinarily wrong to commit a
    crime but, because of her mental disorder, may still believe that it would be
    right according to the ordinary morals of her society to commit the crime in
    the particular circumstances of this case
.




On the other hand, the defence of mental disorder is not
    open to a person who knows that her conduct is wrong in the eyes of society but
    refuses to accept societys view on right and wrong and instead follows her own
    personal, deviant code of right and wrong
.  Such a person does not lack
    the capacity to know that her actions are wrong.

If the evidence demonstrates on a balance of probabilities that
    Ms. Campione was incapable of knowing that her act was wrong in the sense I
    have described,
you must return a verdict of not criminally responsible on
    account of mental disorder
. [Emphasis added.]

[47]

And
    the
Ross

passage was immediately followed by this instruction:

In accordance with the jurisprudence therefore,
the crux of
    the inquiry is as follows: whether the accused lacks the capacity to rationally
    decide whether the act is right or wrong and hence to make a rational choice
    about whether to do it or not
.
The inability to make a rational
    choice may result from a variety of mental dysfunctions, such as the following
    passages indicate, these include at a minimum the states to which the
    psychiatrists testified in this case 
delusions which make the accused
    perceive an act which is wrong as right or justifiable, and a disordered
    condition of the mind which deprives the accused of the ability to rationally
    evaluate what he is doing
.

If the defence has satisfied you that, when she drowned her daughters,
    it was more likely than not that she had a mental disorder that
made her
    incapable of being aware that what she did was something she should not do
    according to the accepted standards of society
, you must find her not
    criminally responsible on account of mental disorder[.]  [Emphasis added.]

[48]


Accordingly,
    the jurors were made well aware that, if they accepted the appellants version
    of the killings, they had to render a verdict of NCR.  I see no basis for
    confusion on this issue.  While the focus of the test is on the appellants
    state of mind and her capacity for rationale choice, the question is not
    whether the appellant considered the acts justified according to her own moral
    code, but whether she was incapable of knowing that her actions were contrary
    to societys morality.

[49]

I
    would not give effect to this ground of appeal.

(2)

Was there a Failure to Caution the Jury on Dr. Huckers Statement of the
    Law?

[50]

Tied
    to the appellants general criticism of the
Ross
passage is her
    contention that Dr. Huckers opinion was based on a misunderstanding of the law.
    She argues his misunderstanding was not corrected by the trial judge, and this
    had a potential negative impact on the deliberations of the jury.

[51]

The
    appellant submits that Dr. Hucker based his opinion on the misunderstanding that
Ross
imported an objective standard into the NCR defence, namely, that
    the test was whether a reasonable person, holding the delusions she held, would
    have known that the acts were morally wrong as measured by normal societal
    standards.  The misunderstanding tainted the doctors opinion.  But that is not
    all, she says.  Dr. Hucker conveyed this misunderstanding to the jury in
    various ways and, in doing so, bolstered the likelihood that the jurors would
    apply the same misunderstanding to their assessment of the evidence. The impact
    of this misunderstanding was heightened, she argues, when, in re-examination,
    Dr. Hucker made specific reference to
Ross
and said that it had [him]
    rethinking [his] approach to these problems.  Since this was fundamentally a
    question of law, it was for the trial judge to correct, but he did not do so.

[52]

In
    support of this submission Ms. Dann highlights passages from Dr. Huckers
    testimony and his written opinion where he refers to what the average or
    ordinary person or the regular member of society would do or think.  In my
    view, however, these segments of evidence, when read as a whole, do not support
    the appellants position.

[53]

For
    example, the doctor mentions regular members of society and the average
    person in the following exchange during examination-in-chief:

Q. And can you explain what, if any, the relationship between
    major depressive disorder and  the function of somebodys mind as would relate
    to an NCR finding, how those two work together?

A. Yeah  Within the criminal responsibility context, its the
    severity of the depression and
whether it affects your capacity
thats
    essentially a legal construct.



[Dr. Hucker then discussed the criteria of appreciating the
    nature and quality of the act (not an issue here), and continued:]

[I]ts unusual for a person to have a mental condition of any
    kind that makes it not possible to know that an act is criminal, that its
    against the law.  Usually in these cases where theres a discussion about the
    relevant condition, whether it be depression or anything else, is
whether
    it affects the persons appreciation or understanding of the moral consequences

and that, as Ive understood it,

doesnt mean whether [their] actions
    are justifiable to them but whether it would be seen as justifiable to regular
    members of society
Thats obviously using my lay professionals
    understanding of what the case law tells us.

Q. So in that context, lets say if somebody is in a depressive
    episode, does that illness,
can it function such that it would impair a
    persons ability to understand

the moral nature of it, of the act?

A. In the sense that
a person whos suffering from
    delusional ideas,  beliefs that are not true, that are a function of a mental
    problem, if the person believes in the state of affairs which were they true
    might have justified the behaviour
.

So, for example, if somebody believes that the world is coming
    to an end and that only by committing a murder that they would be able to
    prevent this happening one could argue that
the average person would say,
    well, if you really believed that by committing this crime you would stop some
    major catastrophe, most people would say well, if that was true, then maybe I
    would do the same, so you could sort of put yourself in that position and say
    given that perception, erroneous though we think it is, if the person  truly
    believe that, that might be, mean that they lacked the capacity to understand
    the moral wrongness of the act
.
[Emphasis added.]

[54]

This
    explanation begins and ends with an emphasis on the importance of lack of
    capacity to understand.  When read as a whole, this testimony indicates that Dr.
    Hucker correctly considered the moral wrongness inquiry to turn on the effect
    of the mental illness on a persons
capacity or ability to understand
that the acts in question were morally wrong, having regard to the everyday
    standards of the ordinary person: see
Oommen
, at p. 520.

[55]

Ms.
    Dann relied heavily on the following conclusion at the end of Dr. Huckers
    report (which was made an exhibit at trial, and was therefore available to the
    jury) in support of the same argument :

Her delusional ideas appear to have strongly influenced her
    thinking and behaviour in connection with the alleged offenses.  It is my
    understanding that a persons subjective belief that their conduct was morally
    justifiable does not exempt them from criminal responsibility, even if those
    beliefs are driven by mental disorder.
It is debatable whether the
    ordinary person would regard her actions as justifiable
although she has
    stated that she believed no one was listening to her concerns about her
    daughters safety were they to end up with her ex-husband.  It might be argued
    that her mental illness rendered her unable to cooperate with those authorities
    that might have helped her.  However, an alternative that she might have  adopted
    would have been to simply take off as one of the women from her apartment
    building had thought she might do.
In my opinion therefore Ms. Campione
    would have also have had the capacity to know that her actions were morally
    wrong according to the standards of Canadian society.

[Italics
    added; bolding in original.]

[56]

However,
    I am not persuaded that this excerpt from the opinion  or the opinion as a
    whole  would have misled the jury with respect to the applicable law.

[57]

In
    the excerpt, Dr. Hucker states  accurately  that a persons subjective belief
    that the conduct was justifiable does not exempt him or her from criminal
    responsibility, even where it is driven by a mental disorder.  It is clear from
    the rest of the excerpt that such a subjective belief would exempt a person
    from criminal responsibility where the persons mental disorder renders her incapable
    of knowing her actions were morally wrong according to the standards of
    Canadian society.

[58]

The
    appellants complaint begins with the next sentence  it is debatable whether
    the ordinary person would regard her actions as justifiable  and the
    following examples given by Dr. Hucker bearing on that issue.  The appellant
    says this implies the test is what the ordinary person would have done in the
    circumstances, rather than whether, because of her mental disorder, she was
    incapable of understanding that her subjective belief was out of step with
    normal societal mores and of making a rational choice.

[59]

I
    do not think the jury would have understood the passage in that fashion,
    particularly when it is considered in light of all Dr. Huckers testimony.  As
    noted above, Dr. Huckers testimony made it clear that the crux of the
    determination was the affect of the appellants mental illness on her
capacity
    to understand
that her acts were wrong in light of normal societal
    standards, and not on whether a reasonable person would have done the same
    thing in the circumstances.  This is confirmed by the final sentence in the
    impugned passage above:

In my opinion therefore Ms. Campione would have also have had
    the capacity to know that her actions were morally wrong according to the
    standards of Canadian society.

[60]

Finally,
    I do not think that the specific reference to
Ross
in Dr. Huckers re-examination
    would have had any impact on the jurys deliberations.  There was no reference
    to that case by name in the jury charge; the jury could not have made any
    direct connection between
Ross
, Dr. Huckers evidence, and the trial
    judges instructions.  Further, defence counsel objected immediately to Dr.
    Huckers open reference to the law, Crown counsel accepted the objection, and
    the trial judge agreed.  Nothing further was said.

[61]

This
    was not a case of an expert usurping the role of the trial judge in relating
    the law to the jury.  At no time did Dr. Hucker profess to be an expert in the
    law.  Indeed, he referred to himself as a lay professional in the passage
    from his examination-in-chief outlined above, and he concluded his written
    report by noting that he was not legally trained and therefore may have
    misunderstood some of the subtleties of interpretation [of the law].  There
    was no need in the circumstances for the trial judge to correct any legal
    misunderstanding Dr. Hucker may have had.  It was for the trial judge to
    instruct the jurors on the law.  He explained this responsibility clearly 
    including the direction that they were not to be influenced by the statements
    of others in that regard.  As indicated above, he properly instructed them on
    the law.

[62]

For
    these reasons, I conclude that the appellants second ground of appeal must be
    rejected too.

(3)

Was there an Unfair Caution Regarding Dr. McMasters Evidence?

[63]

Both
    Dr. McMaster and Dr. Hucker based their opinions, in part, on what they had
    been told by others  hearsay evidence that was not itself admissible at
    trial.  However, the appellant complains that when it came to explaining to the
    jurors how they were to deal with expert testimony in this respect, the trial
    judge singled out Dr. McMasters evidence, thereby unfairly cautioning the jury
    in relation to Dr. McMasters opinion but not Dr. Huckers.

[64]

In
    particular, the trial judge said this:

As I explained earlier in the trial when dealing with Dr.
    McMasters testimony, I will repeat now, statements made by Ms. Campione to
    others which form part of her defence, are admissible into evidence not for the
    truth of their content but for the fact that they were made.  So for example,
    the comment made by her to Dr. McMaster as he was conducting his psychiatric
    assessment in which she was relating to him her use of and reliance upon her
    medications cannot be used by you as being the truth in relation to her use of and
    reliance upon her mediations but is tendered as evidence only that she made
    such a statement to Dr. McMaster.

Since the statement cannot be tendered for its truth, and since
    Dr. McMaster relied upon it in making his assessment, then the weight you
    attach to his assessment, in as much as it is based upon information that has
    not been tested in evidence before you, is for you to decide.



If the premises upon which the information is substantially
    based [have] not been proven in evidence, it is up to you to conclude that it
    is not safe to attach a great deal of weight to the opinion.

[65]

A
    review of the record indicates that the trial judge undoubtedly made these
    remarks as a follow-up to a caution promised earlier in the trial. The
    reference at the beginning of this passage to an earlier mid-trial explanation
    regarding Dr. McMasters testimony is linked to the outcome of an attempt by
    the Crown to exclude the doctors evidence, because it was based solely on
    inadmissible out-of-court statements made to him by the appellant.  The trial
    judge dismissed the application, but noted that the weight of an experts
    evidence depended upon the proof of the facts underlying it. He told counsel he
    would caution the jury in relation to Dr. McMasters evidence in that respect.

[66]

I
    agree that it might have been preferable had the trial judge specifically
    indicated that the same considerations applied to the expert testimony of Dr.
    Hucker.  However, the portions of the charge surrounding the above remarks demonstrate
    that this was nonetheless made clear to the jury, in my opinion.

[67]

Before
    making the comments quoted above, the trial judge referred to the reports of
    both doctors and pointed out that both doctors were qualified as expert
    forensic psychiatrists.  He tailored the next segment of this portion of the
    charge by relating his remarks to the doctor
s
:

It is appropriate

for

the doctors
to
    state the basis of their opinions and in the course of doing so refer to what
    they had been told not only by Ms. Campione but by others.  Referrals to such [bases]
    by the doctors in arriving at their opinions is second-hand evidence, that is
    hearsay evidence, and can be used only to show the information upon which they
    based their opinions.  Referrals to what they were told is not evidence going
    to the existence of the facts on which they based [their] opinion[s].  Where
    the psychiatric evidence is comprised of hearsay evidence it is always a
    problem about what, if any weight, can be attributed to the opinion.  Before
    any weight can be given to an experts opinion, the facts upon which the
    opinion is based must be found to exist and that has to be done by evidence
    independent of the doctors hearsay evidence.

[68]

These
    instructions were followed immediately by the impugned reference to Dr.
    McMasters evidence above, and that passage was, in turn, immediately followed
    by this instruction:

If there are some errors and the factual assumptions are not
    too important to the eventual opinion, that is one thing.  If there are errors
    or matters not in evidence and those matter[s] are substantial to the formation
    of an opinion in your view then you will want to look at the value and weight
    of the experts opinion very carefully.  It depends how important you think the
    matters were
that Doctors McMaster and Hucker
relied on that are not
    in evidence. [Emphasis added.]

[69]

When
    these instructions are considered in their totality, I do not think the jury
    would have been left with the impression that the particular reference to Dr.
    McMasters testimony was anything other than an example. Similarly, I do not
    think the jury would have concluded that, in some fashion, the trial judge was
    seeking to leave them with a caution about Dr. McMasters evidence that would
    not apply to that of Dr. Hucker.

[70]

I
    would dismiss this ground of appeal as well.

Disposition

[71]

For
    the foregoing reasons, I would dismiss the appeal.

Released: R.A.B. February 2, 2015

R.A. Blair J.A.

I agree S.E. Pepall
    J.A.

I agree P. Lauwers
    J.A.


