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 God’s hands (and where she would be to protect them as well).

[6] The Crown’s 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 appellant’s 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 appellant’s 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 Women’s 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 can’t 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 Children’s Lawyer. The supporting materials referred to the appellant’s “mental health breakdown” and to the alleged “deplorable conditions” in which the girls were said to be living at the appellant’s apartment.

[13] On the day of the offence, the appellant was driven to her lawyer’s 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 girl’s 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 Women’s 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 children’s 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 appellant’s 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 “didn’t work”. She is aware that the children are dead. She expresses her hatred for Mr. Campione and deplores his and his family’s 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:

• It’s morning and our babies are in heaven.
• I hope this is what you wanted. You’ve wiped out your entire family because you couldn’t 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 don’t shine because it is cursed.
• I’m not mentally ill. I don’t care what people say.
• Nobody would listen and now people are probably saying – they’re 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 wasn’t.
• 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:

They’re protected by God, thank God. I thank him because there’s no way I could have them with you. You’re a hideous monster.

I’m 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 can’t hurt us, you can’t torture us. You can’t bother me anymore. You can’t 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 didn’t know and didn’t remember. She said that she had taken “a whole bunch of anti-psychotics cuz [she] didn’t … wanna take it anymore.” When the police arrived at her home and asked if she had any children, she replied, “Yes, they’re 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 appellant’s 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. McMaster’s 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. Hucker’s opinion, the appellant had the capacity to understand the moral wrongfulness of her acts. He concluded that anger was the driving force behind the appellant’s actions. The killings were an act of anger and revenge directed at the appellant’s 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 Court’s 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 Crown’s 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 appellant’s 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 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, R. v. Oommen, 1994 CanLII 101 (SCC), [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 CanLII 112 (SCC), [1991] 1 S.C.R. 68, at p. 80:

It is not sufficient to decide that the appellant’s 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 Court’s 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 appellant’s submission, the test is subjective.

[34] To bolster this point, the appellant submits the proof of the pudding is in the fact that the Crown’s 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 judge’s failure to correct the error in Dr. Hucker’s approach, thereby reinforcing it and clothing the misunderstanding in an expert’s opinion.

[35] It is at this point that the appellant’s argument about the Ross passage and the alleged error underlying Dr. Hucker’s evidence intersect. I will return to this issue shortly, but will first address the appellant’s complaint about the Ross passage itself.

The Alleged Error of the Ross Instruction

[36] As I understand the gist of Ms. Dann’s 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 accused’s acts is to be measured against societal standards, but argues that the Ross passage over-emphasizes this standard, at the expense of an accused’s 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 accused’s 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 appellant’s 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 appellant’s] 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 society’s 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 appellant’s 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 appellant’s 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 accused’s personal sense of justifiability is not sufficient. The inquiry goes further. The accused person’s 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. McMaster’s “altruistic killings” opinion or a version of the facts that supported Dr. Hucker’s “anger killings” opinion.

[44] Dr. McMaster’s 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 society’s moral standards. If they reached that conclusion, they would find the appellant NCR.

[45] Dr. Hucker’s 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 couldn’t 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 appellant’s 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 judge’s 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 society’s 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 appellant’s 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 appellant’s 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 society’s morality.

[49] I would not give effect to this ground of appeal.

(2) Was there a Failure to Caution the Jury on Dr. Hucker’s Statement of the Law?

[50] Tied to the appellant’s general criticism of the Ross passage is her contention that Dr. Hucker’s 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 doctor’s 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. Hucker’s 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 appellant’s 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 somebody’s mind as would relate to an NCR finding, how those two work together?

A. Yeah … Within the criminal responsibility context, it’s the severity of the depression and whether it affects your capacity that’s 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]t’s 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 it’s against the law. Usually in these cases where there’s a discussion about the relevant condition, whether it be depression or anything else, is whether it affects the person’s appreciation or understanding of the moral consequences and that, as I’ve understood it, doesn’t mean whether [their] actions are justifiable to them but whether it would be seen as justifiable to regular members of society … That’s obviously using my lay professional’s understanding of what the case law tells us.

Q. So in that context, let’s say if somebody is in a depressive episode, does that illness, can it function such that it would impair a person’s ability to understand the moral nature of it, of the act?

A. In the sense that a person who’s 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 person’s 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. Hucker’s 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 person’s 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 person’s 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 person’s mental disorder renders her incapable of knowing “her actions were morally wrong according to the standards of Canadian society.”

[58] The appellant’s 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. Hucker’s testimony. As noted above, Dr. Hucker’s testimony made it clear that the crux of the determination was the affect of the appellant’s 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. Hucker’s re-examination would have had any impact on the jury’s 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. Hucker’s evidence, and the trial judge’s instructions. Further, defence counsel objected immediately to Dr. Hucker’s 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 appellant’s second ground of appeal must be rejected too.

(3) Was there an Unfair Caution Regarding Dr. McMaster’s 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. McMaster’s evidence, thereby unfairly cautioning the jury in relation to Dr. McMaster’s opinion but not Dr. Hucker’s.

[64] In particular, the trial judge said this:

As I explained earlier in the trial when dealing with Dr. McMaster’s 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. McMaster’s testimony is linked to the outcome of an attempt by the Crown to exclude the doctor’s 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 expert’s evidence depended upon the proof of the facts underlying it. He told counsel he would caution the jury in relation to Dr. McMaster’s 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 doctors”:

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 expert’s 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 doctor’s hearsay evidence.

[68] These instructions were followed immediately by the impugned reference to Dr. McMaster’s 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 expert’s 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. McMaster’s 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. McMaster’s 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.”