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.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dyke,
    2015 ONCA 120

DATE: 20150223

DOCKET: C53998

Watt, Pepall and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gerald Dyke

Appellant

Lance C. Beechener, for the appellant

Andreea Baiasu, for the respondent

Heard and released orally: January 30, 2015

On appeal from the sentence imposed on January 28, 2011
    by Justice Gerald E. Taylor of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

Gerald Dyke appeals a sentence of detention in a penitentiary for an
    indeterminate period imposed upon him after he was declared a dangerous
    offender.

[2]

It was beyond controversy at the dangerous offender hearing that the
    evidence satisfied the standard required for the appellant to be designated a
    dangerous offender. What was controversial, however, was whether there was
    nonetheless a reasonable possibility of eventual control of the appellants
    risk in the community.

[3]

The appellant submits that the trial judge made three errors in
    principle in concluding that there was no reasonable possibility of eventually
    controlling his (the appellants) risk in the community:

(i)

he misapprehended the evidence of Kim Gillespie concerning the period
    during which an LTO could reside in a community correctional centre;

(ii)

he erred in his treatment of the issue of whether a condition requiring
    the appellant to take Antabuse could mitigate his risk to the community; and

(iii)

he erred in his analysis of the extent to which the appellants aging
    could attenuate his risk to the community.

[4]

The trial judges reference to the period the Parole Board may require
    an LTO to reside in a community correctional centre as being 180 days is not
    entirely correct. The evidence of Ms. Gillespie was that this initial period of
    180 days could be extended by the Board on application of an offenders parole
    officer. The evidence did not reveal on what basis or according to what
    criteria or factors such an extension may be granted. The submission of a
    request by the parole officer appears to us to be no more than a recommendation
    to the Board.

[5]

Despite this, we are nonetheless satisfied that the conclusion of the
    sentencing judge was firmly grounded in the evidence adduced at the hearing.
    Considered as a whole, the evidence fully supported the trial judges
    conclusion that there was no realistic possibility of eventual control of the
    risk in the community. We note, for example, that the appellant was bound by
    the terms of his conditional release order when he committed the predicate
    offence. Those terms proved inadequate to control the risk of re-offence in the
    community.

[6]

In oral argument, the appellant did not vigorously press his second and
    third submissions. We have nonetheless considered them, and find them to be
    unpersuasive.

[7]

The appeal is dismissed.

David
    Watt J.A.

S.E.
    Pepall J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Georgalis, 2015 ONCA 70

DATE: 20150202

DOCKET: C56820

Strathy C.J.O., Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Theofilos Georgalis

Appellant

Theofilos Georgalis, acting in person

Jamie Spotswood, appearing as
amicus curiae

Amanda Ross, for the respondent

Heard: December 4, 2014

On appeal from the judgment dated November 20, 2012 of
    Justice Marvin A. Zuker of the Ontario Court of Justice, dismissing an appeal
    from the conviction entered and sentence imposed by Justice of the Peace B.
    Fatsis on January 6, 2011.

ENDORSEMENT

[1]

The appellant appeals, with leave, from the judgment of the Ontario
    Court of Justice dismissing his appeal from his conviction by a justice of the
    peace on a charge under the

City
    of Toronto,
Municipal Code
, C. 545
Licensing
, (20
    June 2002), s. 545-39D(2) (repealed), for stopping for the sale of
    refreshments within 30 metres of any entrance to school grounds. He was fined
    $2,000. Leave was granted on the issue of whether the provisions of the
Municipal
    Code
constituting the offence apply on private property.

[2]

The appellant was licensed by the City of Toronto as a motorized ice
    cream vendor. One condition of his licence prohibited the sale of ice cream
    within 30 metres of the entrance of a school.

[3]

On the date in question, the appellant was selling ice cream from his
    truck, which he had parked in the parking lot of Weston Junior Public School.
    The charging officer observed several small children purchase ice cream. He
    testified the truck was on school property, approximately 10-15 metres from the
    entrance to the school grounds. The appellant admitted he was on school
    property, but testified he was more than 30 metres inside the entrance. The
    justice of the peace accepted the officers evidence and convicted the
    appellant. His appeal to the Ontario Court of Justice was dismissed.

[4]

The appellant, through
amicus
, advances two submissions. First,
    he submits that the words in the
Code
, prohibiting an ice cream truck
    from stopping
within
30 metres of any entrance to school grounds
    (emphasis added), describe a prohibited zone extending 30 metres
outside
the entrance. He submits the appellant should not have been convicted because
    his truck was located
inside
the entrance. He says the use of the word
    entrance, as opposed to entrance or exit, used in other parts of the
    by-law, orients the prohibited zone in a direction
outside
the
    entrance.
[1]

[5]

He submits the contrary interpretation would lead to an absurdity
    because someone could sell ice cream lawfully on the school steps provided they
    were more than 30 metres
inside
the entrance. He says that on the
    correct interpretation of the by-law, the appellant was entitled to sell ice
    cream as long as he stopped his truck
inside
the entrance to the school.

[6]

The appellants second submission is that the by-law is inapplicable to
    private property.

[7]

We agree with counsel for the respondent that this appeal can be
    resolved on the basis of statutory interpretation and does not turn on either
    the meaning of the word entrance or on whether the by-law applies to private
    property.

[8]

The modern approach to statutory interpretation requires the words to be
    read in their entire context and according to their grammatical and ordinary
    sense, harmoniously with the scheme and object of the legislation and the
    intention of the legislature:
John Doe v. Ontario (Finance),
2014 SCC
    36, 373 D.L.R. (4th) 601, at para. 18.

[9]

On the plain meaning of the by-law, the appellants submission fails.
    The word within is defined as inside (something); inside the range of;
    inside the bounds set by: Angus Stevenson & Maurice Waite, eds.,
Concise
    Oxford English Dictionary
, 12th ed. (New York: Oxford University Press, 2011),
    at p. 1658. The term within, in the context in which it is used in the
Code
,
    sets a boundary around schools, inside which ice cream trucks are prohibited.

[10]

It
    would be absurd to interpret the by-law to mean that the appellant could not
    sell ice cream on the street within 30 metres of the entrance to the school but
    that he could stop anywhere
inside
the entrance to do so. It would also
    be absurd to say that he could sell anywhere on the school grounds, provided he
    was
more
than 30 metres
inside
the entrance. The court should
    avoid an interpretation that leads to absurd or illogical consequences or would
    defeat the purpose of the legislation:
Rizzo & Rizzo Shoes Ltd. (Re)
,
    [1998] 1 S.C.R. 27, at para. 27.

[11]

The
    by-law is directed both to the protection of school children and setting fair
    limits on where ice cream vendors can ply their trade. It should be interpreted
    to promote these objects. Permitting the sale of ice cream in school driveways
    or parking lots promotes neither objective.

[12]

The
    by-law does not regulate or apply to private property. It requires motorized
    ice cream vendors to be licensed and regulates the conditions of their
    operation, including where they may operate. By entering into the school yard
    and stopping to sell ice cream, the appellant violated the terms of his licence
    and also breached the by-law.

[13]

For
    these reasons, the appeal is dismissed.

G.R. Strathy C.J.O.

M. Tulloch J.A.

W. Hourigan J.A.

[1]

Amicus
acknowledges there is no evidence that there was a separate exit from
    the school and concedes that the entrance to the school also served as the
    exit.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Heinekamp, 2015 ONCA 124

DATE: 20150224

DOCKET: C58957

Laskin, Feldman and Simmons JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony Heinekamp

Appellant

Lucy Saunders, for the appellant

Christine Tier, for the Attorney General of Ontario

James Gibson, for Ontario Shores Centre for Mental
    Health Services

Heard: February 4, 2015

On appeal from the disposition of the Ontario Review
    Board dated May 12, 2014.

By the Court:

[1]

The appellant appeals
    from a disposition of the Ontario Review Board ordering that he be detained in
    a medium secure unit at
Ontario Shores Centre for Mental Health Services
rather than in the minimum secure unit
    where he was detained prior to the disposition under appeal.

[2]

In making its
    decision, the Board relied on the appellant's recent alcohol use, which involved
    two incidents of intoxication; his antisocial activities and attitude; and his
    recent elopement and resulting elopement risk.

[3]

We do not accept the
    appellant's submissions that the Board erred in relying on these factors or
    that it failed to impose the least onerous and least restrictive alternative.

[4]

The appellant suffers
    from paranoid schizophrenia, substance abuse disorder, and antisocial
    personality disorder. He committed the index offences and a prior manslaughter
    while intoxicated. Although his schizophrenia is currently controlled by
    medication, he pleaded guilty to the prior manslaughter and there is no
    evidence it was related to schizophrenia as opposed to anti-social personality
    disorder combined with drinking.

[5]

At the hearing, the
    appellants treating psychiatrist gave evidence that the appellant is at a very
    high risk of acting violently when intoxicated; that he has minimal insight
    into his alcohol problem; that there was a significant risk he would access
    alcohol if he had indirectly supervised privileges on the minimum secure unit;
    and that even if he did not have indirectly supervised privileges on the
    minimum secure unit, the appellant could obtain alcohol from other patients on
    the unit.

[6]

Taking account of these
    factors, it was open to the Board to find as it did that alcohol use makes the
    appellant a much more dangerous individual; that the appellant does not
    appreciate the risk that alcohol poses for him and for members of the public; and
    that there is a greater chance that the appellant will access alcohol if he is
    detained in the minimum secure unit rather than in the medium secure unit.

[7]

Moreover, it was open
    to the Board to take account of the appellants continued alcohol use and the
    risk it creates when determining the least onerous, least restrictive
    disposition.  The fact that the appellant had been using alcohol in the time
    frame leading up to the previous disposition ordering that he be detained in a
    minimum secure unit did not preclude the Board from relying on his recent
    alcohol use when arriving at the disposition under appeal. A prior decision to
    attempt to manage the appellant in the minimum secure unit despite his alcohol
    use does not preclude the Board from taking account of his continuing alcohol
    use and the risk that it created in determining the least onerous, least
    restrictive disposition.

[8]

As for the appellants
    antisocial activities and attitude, the Board did not rely solely on the
    appellants refusal to discontinue his business activities with other patients.
    The Board noted as well that the appellants current disposition included a
    prohibition against alcohol use and that he minimized the seriousness of the
    index offences and has indicated that he would engage in the same conduct again

[9]

In any event, the
    appellant's refusal to discontinue his business activities with other patients
    was a proper factor to consider in relation to managing the appellants risk.
    Based on the appellants history, the prospect that his business activities
    would bring him into conflict with other patients was real. Moreover, there was
    evidence that he had threatened another patient who owed him money arising from
    his business activities.

[10]

The appellants
    elopement risk made him an unsuitable candidate for the indirect supervision
    privileges that are customary on the minimum secure unit.  If granted
    indirect supervision privileges
on the minimum secure unit
, his elopement risk
heightened the risk that he would access alcohol.

[11]

At the hearing, the
    appellants treating psychiatrist testified that he did not believe that the
    appellant could be managed on a minimum secure unit at that time. The appellant
    did not testify or call evidence. In all the circumstances, the Board's
    conclusion that detaining the appellant in the medium secure unit was the least
    onerous, least restrictive disposition was not unreasonable.

[12]

Before the Board,
    the appellant sought a hybrid order in the alternative. On appeal he maintains,
    in the alternative, that a hybrid order would have been the least onerous and
    least restrictive disposition.

[13]

We do not accept that
    submission. The Board noted that it was open to the appellant to demonstrate
    improved stability and conduct, in which case, Ontario Shores could seek an
    early review. In our view, particularly in the light of the appellants treating
    psychiatrists evidence that a straight disposition would give the appellant
    a better opportunity to focus on addressing his risk factors, the Boards
    decision not to make a hybrid disposition was not unreasonable.

[14]

Finally, in our view,
    read as a whole, the Boards decision reflects proper consideration of all the
    factors in s. 672.54 of the
Criminal Code
.

[15]

In the result, we see
    no basis on which to interfere with the Board's disposition.

Released:

FEB 24 2015                                    John Laskin
    J.A.

JL                                                    K.
    Feldman J.A.

Janet
    Simmons J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kwakye, 2015 ONCA 108

DATE: 20150213

DOCKET: C57551

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isaac Kwakye

Appellant

John Kaldas, for the appellant

Melissa Adams, for the respondent

Heard and released orally:  February 10, 2015

On appeal from the sentence imposed by Justice G.D. Lemon
    of the Superior Court of Justice on January 4, 2013.

ENDORSEMENT

[1]

The trial judge was faced with a difficult sentencing problem.  We are
    satisfied that he made two errors in principle.

The Rehabilitative Potential

[2]

The trial judge failed to properly take into account the appellants
    rehabilitative potential and all but dismissed that possibility (see para.
    51).  In fact, the appellant, an eighteen-year-old first offender with a
    supportive family and a positive background, had significant rehabilitative
    potential.

[3]

The trial judge, quite properly, noted that rehabilitation plays a
    lesser role in sentencing for offences like manslaughter.  However,
    rehabilitation remains an important consideration when sentencing an eighteen-year-old
    first offender on any offence.

The Appellants Level of Culpability

[4]

The trial judge did not specifically address the appellants foresight
    with respect to the risk that his partner, the shooter, would use the gun in
    the course of the robbery.  In our view, that question was crucial to a
    determination of the appellants degree or level of culpability and, therefore,
    to a determination of the appropriate sentence.  The trial judge erred in
    principle in failing to address that factual issue.

[5]

We will address that issue.  In our view, on this record, there is no
    doubt that a reasonable person would have foreseen the real risk that the
    shooter would use the gun against a victim in the course of the home invasion.
    We cannot find, and the Crown does not ask us to find, that the appellant
    actually foresaw that risk.  Objective foresight of that risk is sufficient to support
    the
mens rea
required for unlawful act homicide.  Objective foresight
    of a risk is, however, a lower level of culpability than would be a finding
    that the appellant actually foresaw the risk of the use of the gun.  The
    appellant should have been sentenced on the basis of that lower level of
    culpability.

[6]

Having found two errors in principle, it falls to this court to
    determine the appropriate sentence.  Taking into account the appellants
    rehabilitative potential, and the lower level of culpability described above,
    but still recognizing the seriousness of the crime and the paramountcy of
    denunciation and deterrence, we would vary the sentence imposed from 10 years
    to seven years.  Taking into account the credit given for pre-trial custody and
    bail (three years, four months), the effective sentence is three years, eight
    months.  The sentence is varied accordingly.

Doherty
    J.A.

E.A.
    Cronk J.A.

H.S. LaForme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Mackenzie, 2015 ONCA 93

DATE: 20150209

DOCKET: C55529

Watt, Pepall and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Luke Mackenzie

Appellant

Michael Davies, for the appellant

Michelle Campbell, for the respondent

Heard and released orally: January 29, 2015

On appeal from the conviction entered on November 18,
    2011 by Justice Paul F. Lalonde of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

Luke Mackenzie appeals several convictions arising out of an incident
    that occurred early on August 31, 2010. The complainant was a neighbour with
    whom the appellant was apparently intimate from time to time. The true nature
    of their relationship is not entirely clear, but it is of no moment to the
    issues raised on appeal.

[2]

The appellant says that the convictions recorded by the trial judge are
    flawed because the judge relied on inadmissible evidence in reaching his conclusion
    that the complainants account of relevant events was credible and reliable and
    sufficient to sustain the standard of proof required of the Crown.

[3]

In general terms, the evidence with which the appellant takes issue
    consists of:

(i)

the testimony of a police officer, experienced in the investigation of
    domestic assaults, that the complainants demeanour was consistent with that of
    a person who had been assaulted, confined and threatened, her injuries
    inconsistent with her claim of falling on a doorknob, and her lack of
    cooperation with investigators attributable to a fear of reprisal; and

(ii)

the testimony of various witnesses about what the complainant said to
    them about the cause of her injuries shortly after her return home from the
    appellants apartment.

[4]

The evidence about the events that occurred in the appellants apartment
    and preceded the complainants hastened return to her nearby home came from the
    principals  the complainant and the appellant. Their versions differed
    significantly especially in connection with how the complainants injuries had
    occurred.

[5]

The trial record, viewed as a whole, reveals ample reasons for close
    scrutiny of the credibility of the evidence of each of the protagonists and
    careful consideration of the reliability of their evidence.

[6]

It appears clear to us that the trial judge was not prepared to rest a
    conclusion of guilt entirely on the testimony of the complainant. As he said:

I had to look for some corroboration of what she said happened.

Apart from his use of the term corroboration, which
    is best relegated to the dustbin of legal history, we agree with his conclusion
    that confirmation was desirable.

[7]

The problem in this case is the evidence on which the trial judge relied
    for confirmation. The confirmation consisted of a combination of the opinions
    proffered by an investigating officer and of evidence of the complainants
    statements to her daughter and to police officers who responded to a 911 call.

[8]

To take first the evidence of the lead investigator, the trial judge
    said this:

The evidence of Sergeant Pulfer is to be given a lot of weight.
    He is an officer who has during the last of 15 years has seen all kinds of
    domestic assault cases. He was not there when the assault took place but he
    could tell with a degree of certainty if Ms. Ethiers demeanour was consistent
    with someone who was physically assaulted, confined and threatened with death.
    He saw Ms. Ethier within an hour of her coming home naked and described her as
    upset, crying, not saying much, both eyes swollen and having one eye closed
    shut. He saw the hand marks on her thighs and told the Court that they could
    not have been made by Ms. Ethier. The marks on Ms. Ethiers neck were
    consistent with someone who had been strangled. He said that he did not believe
    the doorknob theory.

More importantly Sergeant Pulfer testified that he was certain
    that it was fear that caused Ms. Ethiers lack of cooperation at the initial
    interview with the police. In other words he was telling the Court that Ms.
    Ethier seriously believed that harm would come to her and to her daughters if
    she told him what had happened.

[9]

We do not dispute that the officer was entitled to testify about his
    observations of the physical conditions and emotional state of the complainant.
    But his evidence extended much further. It ventured into opinions expressed by
    a witness who was not qualified to express an expert opinion and beyond the
    compendious statement of facts exception for lay opinion evidence. While at
    least some aspects of the evidence were properly admissible as narrative, as
    for example, to explain why certain investigative steps were later taken, this
    was not the purpose for which the trial judge used the evidence. He assigned
    the evidence a lot of weight in reaching his conclusion of guilt. The
    irresistible conclusion is that the proffered opinions were used to shore up
    the credibility of the complainant and enhance the reliability of her evidence.
    This use was not permissible.

[10]

In
    a similar way, the trial judge relied upon certain statements admitted, in some
    cases at least, as part of the
res gestae,
as confirmation of the
    complainants account.

[11]

The
    relevant evidence was provided by the complainants daughter and several police
    witnesses who, as I have said, responded to the 911 call. The daughters
    evidence was proffered by the Crown under the common law
res gestae
exception and admitted on that basis. To the extent that the statements
    coincided with the complainants trial evidence, they were prior consistent
    statements not admissible for their truth, and thus not capable of providing
    substantive support for the complainants testimony. Their use however, was not
    so limited.

[12]

After
    anxious consideration, we have reached the conclusion that these convictions
    cannot stand. The trial judge rightly sought confirmation of the complainants
    testimony in deciding whether Crown counsel had proven the appellants guilt
    beyond a reasonable doubt. The evidence upon which he relied as confirmation
    consisted of an amalgam of inadmissible opinion and of evidence of the
    complainants statements that was properly admissible for one purpose, but not
    for that purpose used by the trial judge. The absence of objection from trial
    counsel is a factor we have considered, but not one that is dispositive of the
    result, in the circumstances of this case.

[13]

For
    these reasons, the appeal from conviction is allowed, the convictions set aside
    and a new trial ordered. The appeal from sentence is dismissed as abandoned.

David
    Watt J.A.

S.E.
    Pepall J.A.

Huscroft
    J.A.