R v Campione: Nature of “Moral Wrongness” for NCR Defences Affirmed at ONCA

In R v Campione, 2015 ONCA 67 [Campione], the Ontario Court of Appeal (“ONCA”) affirmed its earlier understanding and formulation of the concept of “moral wrongness” as it relates to NCR defences. The appeal provided the Court an opportunity to clarify the nature of a specific inquiry under section 16(1) of the Criminal Code, RSC 1985, c C-46, and offered insight into the more basic motivations underlying the provision and defence. In what follows, I outline the facts, issues, and decision, before closing with some more general reflections.

The Facts and Jury Verdict 

The facts of this case are, quite simply, heart-rending. They cannot be adequately or fully captured in the brief space allotted here.

In October 2006, following the dissolution of a destructive and violent marital relationship, a protracted custody battle, and several admissions to hospital for mental illness, the appellant Frances Campione drowned her two infant daughters in the family bathtub. She then unsuccessfully attempted to end her own life.

At trial, Ms. Campione’s defence was that she was not criminally responsible for her acts by reason of mental disorder (“NCR”). The theory of the defence was that Ms. Campione’s actions were, from her perspective, altruistic. Defence counsel led evidence that Ms. Campione was under the delusion that the only way to save her children from her estranged husband was to send them to heaven to be safe in God’s hands. Following her own death, she would be there to protect them as well (Campione, para 5). To this effect, counsel called Dr. McMaster as an expert witness who testified that although Ms. Campione knew right from wrong in a general sense, she lacked the capacity to apply that knowledge to her own situation, killing her daughters as a “last resort” (para 23)

The Crown’s theory was that Ms. Campione killed her daughters in an act of vengeance directed at her estranged husband and his family. To that end, Crown counsel called Dr. Hucker, who for his part testified that Ms. Campione possessed the capacity to understand the moral wrongfulness of her acts, concluding that the killings were done out of revenge: that she chose to kill her children rather than to risk letting her estranged husband retain custody.

The jury rejected the NCR defence, convicting Ms. Campione. She appealed to the ONCA on the grounds that the trial judge instructions contained three errors.

Issues at the ONCA

1. Whether the trial judge, in giving his instructions to the jury, provided confusing and unnecessary directions to the jury on the meaning of “moral wrongfulness”?
2. Whether the trial judge erred by failing to caution the jury with respect to a comment on the law made by Dr. Hucker?
3. Whether the trial judge’s caution in respect of the evidence of Dr. McMaster was unfair and prejudicial?

The ONCA provided sustained analysis on the first issue, ultimately deciding that the trial judge’s instructions regarding the concept of “moral wrongfulness” were neither unnecessary or confusing. The Court also answered the second and third issues negatively, ultimately dismissing the appeal in full. For reasons of brevity, in what follows I focus solely on the first issue.

“Moral Wrongness” and The Defence of Not Criminally Responsible 

Section 16(1) of the Criminal Code provides the statutory basis for the defence invoked in this case:

16(1) 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.

Ms. Campione based her defence on the second branch of the provision: that due to her mental disorder, she was incapable of knowing that her actions were wrong at the time of the offence. In particular, defence counsel argued that her delusions made her incapable of appreciating the moral wrongness of the act. As noted above, it was this fact over which the expert witnesses differed (Campione, para 29).

The legal concept of “moral wrongness” in the context of an NCR defence was established in R v Chaulk, [1990] 3 SCR 1303, and R v Oommen, [1994] 2 SCR 507, before being pithily captured by the Court of Appeal for Ontario in R v Ross, 2009 ONCA 149 [Ross]. In Ross, MacPherson JA stated:

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. (para 27)

Here, MacPherson JA makes clear that for the purposes of section 16(1), an accused is capable of appreciating moral wrongness if he or she has the capacity to know that the act was wrong according to a societal standard. Importantly, the test is still subjective: the question asks about whether or not the accused possessed the requisite capacity at the time of the offence.

The Appellant’s Argument

Defence counsel argued that the trial judge’s instructions had the effect of inviting the jury to adopt an objective standard when determining whether the accused has established an NCR defence. In particular, the appellant took issue with the following passage which closely tracks Justice MacPherson’s statement of the law in Ross:

The appellant argued that the phrasing of this “Ross passage,” although a correct statement of the law, invites the jury to understand the question of moral wrongness as a question of what a reasonable person in the accused’s circumstances would have done. As such, the appellant argues that the instruction manifested a resulting risk that the jury may have imposed a “reasonable person” standard on the appellant (Campione, para 32).

In addition, the appellant submitted an alternative phrasing of the moral wrongness question. In her view, the appropriate 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” (para 38).

The Court of Appeal’s Response

Justice Blair rejects both of the appellant’s submissions. He begins with the second. Contrary to counsel’s suggestion, he finds that the alternative phrasing of the moral wrongness question misplaces the focus of the inquiry. The ultimate issue for the jurors regarding the second branch of section 16(1) is whether the appellant had the capacity to know that the actions in question were contrary to society’s moral standards (para 39). This stands independent of the appellant’s subjective beliefs about the justifiability of her actions. To focus on these beliefs — as the appellant’s rephrased question invites the jury to do — is to direct attention away from that ultimate issue.

Responding to the first submission, Justice Blair finds that the inclusion of the “Ross passage” was neither unnecessary nor confusing, and did not invite the jury to apply an improper standard (para 41).

Justice Blair’s next statements at paragraph 41 of the reasons seem to provide the basic rationale for the the second branch of 16(1).

In short, a subjective, but honest belief in the justifiability of the acts… 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 refer 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.

In this last sentence, we see the justifications for the “moral wrongness” inquiry laid bare. In this context, moral (and criminal) responsibility flows from the failure to act in accordance with a societal standard. If mental disorder renders one incapable of choosing to meet that standard, we ought not impose responsibility for failing to do so.

Conclusions 

Campione reminds us not to conflate an accused’s beliefs about the justifiability of his actions with a lack of criminal responsibility for those actions. A second-branch NCR defence is only available in instances where one’s mental disorder inhibits one’s ability to meaningfully compare one’s own moral appraisal of an act with society’s appraisal. Responsibility is imposed unless it is shown that the accused had no means of ascertaining that the act would transgress the relevant external standard. An accused’s subjective belief about the moral neutrality — or in the case of Ms. Campione, the moral value — of an act tells us nothing about whether the accused should be relieved of criminal responsibility.