



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Cameron, 2017 ONCA 150

DATE: 20170222

DOCKET: C56978

Doherty, Laskin and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Craig Cameron

Appellant

Lawrence Greenspon and Eric Granger, for the appellant

Joan Barrett, for the respondent

Heard:  February 13, 2017

On appeal from the conviction entered by a jury presided
    over by Justice Julianne A. Parfett of the Superior Court of Justice, dated
    April 3, 2013.

By the Court:

[1]

The appellant was charged with the first degree murder of his
    daughter-in-law.  At trial, he advanced an NCR claim, alleging that he was in a
    dissociative state, resulting in non-insane automatism when he shot and killed
    the victim.  Alternatively, the appellant argued that because of his mental
    disorder, he did not have the
mens rea
required for either first or
    second degree murder.

[2]

The appellant testified and the defence called a psychiatrist in support
    of the non-insane automatism defence.  The jury convicted of first degree
    murder.

[3]

The only ground of appeal arises out of Crown counsels closing address
    to the jury.  At trial, the defence argued that 10 submissions made by the
    Crown in his closing address were improper and required a firm corrective
    instruction by the trial judge.  The defence argued that in each of the 10
    instances the Crown had violated the principle identified in
Browne v. Dunn
(1894), H.L. 67 (C.A.) by failing to confront defence witnesses, specifically the
    appellant and the defence psychiatrist, with inferences and arguments the Crown
    ultimately urged upon the jury.  The defence argued that the failure to give the
    witnesses an opportunity to address these issues, combined with the Crown
    addressing the jury last, severely prejudiced the defence.

[4]

The trial judge ruled that the principle in
Browne v. Dunn
had
    been violated in one instance by the Crown.  She also found that the Crown had
    materially misstated the defence psychiatrists evidence on two occasions.  She
    rejected the other seven arguments made by the defence.

[5]

On appeal, counsel argues that the corrective instructions given by the
    trial judge were inadequate and that the trial judge erred in failing to find
    that the other seven submissions by the Crown breached the principle in
Browne
    v. Dunn
.  Counsel submits that the
    combination of the inadequacy of the corrective
instruction, and
    the failure to correct the other improper submissions made by the Crown,
    rendered the trial unfair and resulted in a miscarriage of justice.

The Corrective Instructions

[6]

The trial judge gave a thorough and clear charge to the jury.  Apart
    from her instructions with respect to Crown counsels comments, no objection is
    taken on appeal to any part of the charge.

[7]

The trial judge chose to address the improper aspects of the Crowns address
    in a separate part of her charge near the end of her instructions.  She
    specifically identified the two factual errors made by the Crown in his
    submissions and juxtaposed those errors with an accurate statement of the evidence. 
    The trial judge had already thoroughly reviewed the evidence and related it to
    the positions of the parties.  The trial judge had also reminded the jury that
    it was their recollection of the evidence that counted.  We are satisfied that the
    corrective instructions avoided any realistic risk that the jury would be
    misled by Crown counsels erroneous statements about the evidence in his
    closing address.

[8]

The trial judge expressly identified the
Browne v. Dunn
error
    made by the Crown.  She pointed out to the jury that while the Crown had argued
    that an intoxicated person was more likely to enter into a state of automatism
    than a sober one, the Crown had not put that proposition to the defence
    expert.  The trial judge told the jury that the Crown should have put that
    claim to the defence expert.  She went on to tell the jury:

You cannot speculate on what [the defence expert] might have
    said if he had been asked about this by the Crown.  You may however take into
    account that [the defence expert] was not cross-examined on this point in your
    determination whether to accept his evidence

[9]

This corrective instruction closely followed the instruction suggested
    by defence counsel at trial, and mirrors the instruction suggested in cases
    from this court, e.g. see
R. v. McNeil
, [2000] O.J. No. 1357, at para.
    49.

[10]

We
    are satisfied that the trial judges instruction effectively negated the risk
    of any unfairness to the appellant flowing from the Crowns failure to put the
    question to the defence expert.

The Other Alleged Improprieties in the Crowns Closing

[11]

On
    appeal, counsel renewed the argument that the Crown had breached the principle
    in
Browne v. Dunn
on seven other
    occasions in his closing address to the jury
.  Although counsel
    maintained that all seven arguments breached that principle, he focussed on
    three of those arguments in his oral submissions.

[12]

We
    agree with the trial judge that the Crowns submissions were not improper and
    did not contravene the principle in
Browne v. Dunn
.  We will address
    only the arguments that were the subject of oral submissions in this court.

[13]

Two
    of the allegedly improper submissions made by the Crown in his closing address can
    be considered together.  In those submissions, the Crown attacked the defence
    experts opinion that the appellant was in a dissociative state at the time he killed
    his daughter-in-law.  The expert had testified that the dissociative state was
    triggered by a uniquely stressful time in the appellants life.  The expert
    pointed to the breakup of his sons marriage as creating that uniquely
    stressful time.

[14]

In
    his submission, Crown counsel argued that on the evidence, there were other
    equally stressful times in the appellants life, for example, when his wife had
    a cancer scare, and that none of those incidents had triggered a dissociative
    state.  The Crown argued that the evidence that the appellant had been through
    other experiences which were equally stressful and had not precipitated a
    dissociative state, undermined the validity of the defence experts opinion
    that the breakup of his sons marriage had caused the appellant to go into a
    dissociative state.

[15]

We
    agree with the trial judge that this submission did not attack the credibility
    of the defence expert, or raise an issue that could possibly have caught the
    defence by surprise.  This was a submission that the defence experts
    explanation for the appellants state of mind when he killed his
    daughter-in-law was inconsistent with the rest of the evidence, and
    specifically the evidence that the appellant had never reacted in a similar way
    when under extreme stress on other occasions.

[16]

Defence
    counsel in his closing had anticipated the Crowns argument and urged the jury
    to find that the defence expert had explained that the appellant was under more
    stress at the time he killed his daughter-in-law than he had been on any
    previous occasion.  It was, of course, for the jury to decide the merits of
    that submission.

[17]

The
    third submission by the Crown addressed by counsel for the appellant in his
    oral argument attacked the credibility of the appellant.  In that submission, the
    Crown asked the jury to note the difference in the language used by the
    appellant to describe the shooting in his statement to the police as compared
    to his statements to the defence psychiatrist and in his testimony.  The Crown observed
    that in his statement to the police, which the Crown argued was the truth, the
    appellant spoke in an active voice.  For example, he told the police, I shot
    Michelle.  In contrast, argued the Crown, the appellant, in his statements to
    the psychiatrist and in his testimony, used a passive voice.  For example, the
    appellant said, the gun came up and went off twice.  The Crown argued that
    the appellants use of the passive voice was an attempt by him to portray his
    actions as beyond his control and therefore consistent with the dissociative
    state described by the defence expert.

[18]

The
    Crown cross-examined the appellant on his use of passive language, suggesting
    to him that when he said the gun came up he in fact meant that he had brought
    the gun up.  The appellant clearly grasped the distinction, insisting I dont
    remember making a deliberate choice to do it right then.

[19]

The
    defence expert also referred to the appellants use of passive language in his description
    of the killing to the psychiatrist.  The expert drew a distinction between the
    appellant describing the gun as coming up and shooting and a person saying I
    took the gun and I shot at her.  According to the expert, the passive
    description was more consistent with the shooter having been in a dissociative
    state.

[20]

The
    defence expert drew support for his position from the passive language used by
    the appellant when he described the shooting to the expert.  It was open to the
    Crown in argument to urge the jury to look at the language used by the
    appellant in his statements to the police, which the Crown argued were accurate
    and made before the automatism defence appeared on the scene.  The argument by
    the Crown was firmly rooted in the evidence and, in particular, evidence
    proffered by the defence expert.  Nothing in
Browne v. Dunn
compelled
    the Crown to put this argument to the appellant in a question form, before
    putting it to the jury.

Conclusion

[21]

The
    appeal fails and the conviction is affirmed.

Released:  DD FEB 22 2017

Doherty J.A.

J.I. Laskin J.A.

Roberts J.A.


