Court of Appeal for Ontario

Date: February 22, 2017 Docket: C56978

Judges: Doherty, Laskin and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

John Craig Cameron Appellant

Counsel

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.

Decision

By the Court:

Introduction

[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 counsel's 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 psychiatrist's 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 counsel's 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 Crown's 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 counsel's 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 judge's instruction effectively negated the risk of any unfairness to the appellant flowing from the Crown's failure to put the question to the defence expert.

The Other Alleged Improprieties in the Crown's 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 Crown's 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 expert's 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 appellant's life. The expert pointed to the breakup of his son's 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 appellant's 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 expert's opinion that the breakup of his son's 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 expert's explanation for the appellant's 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 Crown's 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 appellant's 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 don't remember making a deliberate choice to do it right then".

[19] The defence expert also referred to the appellant's 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: February 22, 2017

"Doherty J.A." "J.I. Laskin J.A." "Roberts J.A."