R. v. Rooney, 2025 ONCJ 124

ONTARIO COURT OF JUSTICE

DATE: February 21, 2025

BETWEEN:

HIS MAJESTY THE KING

— AND —

IAN ROONEY

Before Justice Berg

Released on February 21, 2025

JUDGEMENT

T. Radcliffe ........................................................................................... counsel for the Crown
E. Granger, H. Drennan ........................................................................... for the defendant

Berg J.:

1It is alleged that between September 15 and 16, 2022, Ian Rooney unlawfully caused the death of Yu Kun Xie thereby committing a manslaughter contrary to s. 236 Criminal Code. He has pleaded not guilty and elected to have his trial at the Ontario Court of Justice.

2The Crown alleges that in dealing with aggressive behaviour by Ms. Xie that evening, his response was disproportionate to her actions and therefore does not qualify as self-defence and that one of his actions, a blow to the face, caused the brain bleed that led to her death. Furthermore, it is the position of the Crown that subsequent to this assault on Ms. Xie by Mr. Rooney, he decided to not get her any medical help for approximately five hours. The Crown notes in its written submissions that “[b]oth the strike and the failure to get help qualify as significant contributing causes of her death.” The Crown submits, therefore, that the path to conviction for manslaughter is two-fold: unlawful act and criminal negligence.

3As I will explain at length, I disagree and will be dismissing the charge against Mr. Rooney. Moreover, I find that the evidence before me does not support a conviction for any lesser included offence.

The Evidence

4I will be reviewing the evidence at this trial not in the order in which it was called. For the sake of coherence, I will refer to the witnesses in an order that makes better narrative sense.

5Ms. Xie’s daughter, Lucy Zhao told the Court that her mother was born in 1944 and that her first language was Mandarin. Her mother had come to Canada in 1995 and could carry on a basic conversation in English. She died at approximately 1:00 p.m. on September 17, 2022 at the Ottawa Civic Hospital. Prior to her death, her daughter would see her weekly. She had been physically healthy for her age. Ms. Zhao had never known her mother to pretend that she had been injured. She had noticed her mother display some short-term memory deficits at least a year before her death. For example, she would forget where she had left her house keys. However, she was not aware of any diagnosis. She had never seen her mother get aggressive or violent. She had never known her mother to have problems with dizziness, circulation, or balance. She had never seen her slip or fall. She last saw her mother a few days before her death and did not observe her to have any physical injuries.

6She testified that she knew Ian Rooney and identified him in the courtroom. She had first met him some six to eight months prior to the death and had seen him at least three times. She believed that he and her mother were more than friends and believed that they saw each other often. However, she noted that her mother did not tell her much about her private life. She had learned of Mr. Rooney’s presence in her mother’s life a couple of years prior but was aware that they had known each other for a lot longer than that.

7It was her evidence that her mother never told her that she had gone to the Queensway-Carleton Hospital for abdominal pains. It had been Mr. Rooney who had had to inform her of that a couple of days prior to her death.

8On September 15, she received several communications from Mr. Rooney. The first was at 2:40 p.m. when she received a text message from him asking about her mother’s Social Insurance Number as they were going to call Revenue Canada about her income assessment. Then Ms. Zhao and Mr. Rooney had a telephone conversation a bit later in the day on that topic.

9There were then two calls, the first at 9:20 p.m. and the second three minutes later. During the first call, Mr. Rooney sounded very angry. He told Ms. Zhao that her mother had accused him of taking $500 and then scratched him whereupon he had punched her. He noted that she now had a black eye. He told Ms. Zhao that he had spent the whole afternoon trying to help her make phone calls. He wanted Ms. Zhao to come and take her mother home as he did not wish her to ever come to his residence again. The call then was disconnected. Then at 9:23 p.m., her phone rang again. This time she heard only her mother’s voice saying words to the effect of “I am going home by bus.” Her mother did not sound as if she was close to the phone. Then the call disconnected again.

10During cross-examination, Ms. Zhao agreed her mother had accused Mr. Rooney of taking money on another occasion or occasions prior to that day. As well, she allowed that there had been at least one earlier occurrence where her mother had called her while arguing with the accused and she, Ms. Zhao, had spoken to him.

11Mr. Granger explored her evidence about the ‘punch’. He suggested that the more general word ‘hit’ had been used by his client during that conversation. Ms. Zhao was adamant in court that the word ‘punch’ had been used by Mr. Rooney. She accepted, however, that when questioned by the police in the days after her mother was taken to hospital, she had told them “I think its punch” but explained that she was certain he had used “punch’ but when speaking to the police had not been paying close attention to the way she was expressing herself. I note that while Ms. Zhao is presently convinced that the word used was ‘punched’, her response to the officer was as a result of the specific question “Did he say ‘punch’ or ‘hit’ or what?” Her response to that question is indicative of less than 100% certainty. Furthermore, I note that the evidence of the fire captain (see below) was that Mr. Rooney used the word ‘slap’ when speaking to him.

12Various video clips and photos were adduced through the testimony of Sergeant Joanne Pilotte, the lead homicide investigator assigned to the case once Ms. Xie had died. I will refer to this corpus of material only as necessary. For example, the sergeant testified to video clips that document the routes taken by Ms. Xie and Mr. Rooney at first independently and then together from his residence to hers. Ms. Zhao was shown these depictions of her mother in transit. It was her opinion that her mother appeared to be saying “Leave me alone” to Mr. Rooney. Ms. Zhao testified that from these images, it seemed that her mother was in pain. She remarked that her mother kept pointing at her chest and was grimacing a lot. She had not seen her mother do this before. Comparing her mother in a video from the morning and one from the evening, she testified that her mother appeared to be in pain.

13With the exception of the reliability issue to which I have just referred a few moments ago, I find that Ms. Zhao was both credible and reliable.

14Ryley MacWilliams was one of the other passengers caught by the video camera on the bus taken by Ms. Xie and the accused. He was seated very close to them. He assumed that they were strangers to each other because they had been apart prior to boarding. The woman did not seem to welcome the man’s attention. He did not hear what the two people were saying. He had been concerned that the woman did not want to be touched by the man and, as well, that he appeared to be trying to put something into her bag. I find that this witness was both reliable and credible.

15Several communications on September 16, 2022 between Mr. Rooney and 911 were adduced through the testimony of Sergeant Pilotte. I will here summarize those calls. The first communication is a 911 call placed by Mr. Rooney at 00:30 hrs. He advises the Emergency Services operator that he is calling about “an elderly woman in distress”, “She’s in real trouble here” and provides the address of Ms. Xie’s apartment. He further explains that “she is going into some convulsions or something” which he then describes as “some kind of minor seizure.” When asked what happened to cause this, he states “She fell down.” He then describes her as possibly having some trouble breathing and notes that “her whole stomach is twitching.”

16Less than six minutes later, Mr. Rooney calls 911 again and cancels the ambulance that had been dispatched. He sounds much calmer. He explains “She woke up, she’s gone to sleep now. She’s sleeping.” However, approximately twenty-five minutes later, he contacts 911 again and attempts to have an ambulance dispatched again. While waiting to be transferred to the ambulance dispatcher, he is recorded talking seemingly to Ms. Xie “Wake up. Come on. Wake up. Wake up” and perhaps more but the recording is not very clear at that point. The ambulance dispatcher then comes on the line. With the utmost of respect to 911 operators who perform a difficult job, the operator who took this call could perhaps benefit from some training on the use of appropriate tones of voice and sensitivity in dealing with distraught callers. Mr. Rooney gets frustrated and angry with this operator and terminates the call. He calls back seconds later and asks to be connected to the ambulance dispatcher but as that is being done is recorded saying to himself “Nope. Fuck, no. I’m not calling. I’m not calling, sir.” and hangs up. When 911 contacts him again under a minute later, he quickly dismisses them indicating that an ambulance is not needed.

17Mr. Rooney then calls back a little over an hour later. He explains that he is concerned because of an unresponsive person “she’s still breathing fine, but she won’t wake up. She’s unconscious.” However, he then describes her breathing as “semi-normally” and notes that she is gurgling and snoring. Emergency Services arrive minutes later.

18Also adduced through Sergeant Pilotte were the reports of a civilian analyst in the Homicide Unit. Said analyst reviewed the data extracted from Mr. Rooney’s cellular telephone and computer as well as Ms. Zhao’s cell phone. These devices had been seized by the police after Mr. Rooney’s arrest. From the analyst’s report it is clear that during the time period that Mr. Rooney had the various communications with 911, he was also conducting online searches in an attempt to understand what was occurring with Ms. Xie; for example: “normal sleeping pulse rate for elderly woman”, “suffering patient snoring, unresponsive to awakening”, and “First aid for someone who is unresponsive and breathing.”

19Captain Daniel Leblanc of the Ottawa Fire Service and his crew were dispatched to Unit 208 at 865 Gladstone at around 12:30 a.m. on September 16, 2022 for a medical call. However, as they were on their way there, they received word from dispatch that they were not required and so returned to their station. Then, at approximately 2:12 a.m., he and his crew were dispatched to that address again and were on the road at 2:14 a.m. The information on that second call was that the patient was vital signs absent. As the fire hall is situated very close to the address, they were on scene in approximately three minutes. They were met at the door by Mr. Rooney who advised them that he had made the 911 call. Captain Leblanc testified that Mr. Rooney was “calm, nothing out of the ordinary.” As they went inside the building, the captain asked a few questions about the patient. Mr. Rooney explained that he was taking care of her but did not live there. He mentioned dementia and that she had been aggressive with him over the last couple of days and that he had had to use physical force to defend himself. Specifically, he told Mr. Leblanc that he had had to slap her in the face a couple of times.

20When they entered the apartment, Mr. Leblanc observed Ms. Xie in the bedroom lying on her left side on the bed. She was breathing but not otherwise moving. There was a small pool of a rosy-ish coloured liquid on the floor by the bed; he believed it to be saliva. His crew then went into the room to assess her. He continued to talk to Mr. Rooney who showed him some bruising on his right arm shoulder area as well as a cut with dried blood on the front of his right hip below the pant line. He specified that the shoulder injury had possibly been caused by a bite from Ms. Xie. Mr. Rooney repeated multiple times that he was taking care of Ms. Xie and the issue of dementia and aggressiveness was mentioned.

21The paramedics then arrived. Two of them went to deal with the patient while the supervisor stayed in the hallway. She asked Mr. Rooney the same types of questions that the captain had put to him. Then, Mr. Rooney tried to show her the injuries that he had shown Mr. Leblanc. At that moment, Mr. Leblanc turned to see what his crew were doing but heard the supervisor say “Don’t expose yourself to me.” He described what occurred next. Mr. Rooney became angry towards the reaction of the supervisor and “At that point, the situation escalated as far as, as the reaction from both sides, so that’s when I tried to defuse the situation and remove the male person and kind of talk to him on the side a little bit more.” He then observed the supervisor ask one of her colleagues to call a ‘10-2’, a code with which Mr. Leblanc was not familiar.

22The captain testified that during his interactions with the accused, he noticed that he did not like being called ‘sir’. He preferred to be called ‘Ian’ and so Mr. Leblanc switched to using his name. During cross-examination, when asked by Ms. Drennan, Mr. Leblanc stated that he had not felt that the accused was exposing himself when he had moved his clothing to show the injury to his groin. Mr. Leblanc had no recollection of the accused having sworn at the paramedic supervisor.

23Mr. Leblanc assisted the paramedics in getting Ms. Xie into the elevator. He then returned to the apartment. He noticed that Mr. Rooney was no longer open to discussing what had happened. He and his crew then left the scene at 2:40 a.m. to return to the fire station.

24I heard the evidence of a second firefighter: Stephen Kitchen. He recounted being dispatched along with Captain Leblanc and recalled that there had been an earlier cancelled call to that address. He testified to arriving on scene, gathering the medical gear and then following the captain into the building. They were met by a man in the lobby who took them to the apartment. Mr. Kitchen recalled the man as indicating that his wife had dementia and he had hit her when she came after him trying to hit and bite him. He testified that he believed that the man had indicated that the patient was not breathing. Mr. Kitchen was not certain of the exact wording of any of the utterances made by Mr. Rooney.

25Mr. Kitchen and another firefighter went into the room where Ms. Xie was lying on her side. They rolled her over and determined that she was breathing and had a pulse but was unconscious. There was blood on the sheets and some facial trauma. The paramedics arrived and took over the patient care. The firefighters then assisted in loading Ms. Xie onto the gurney and taking her out of the building. I find both Captain Leblanc and Mr. Kitchen to have been credible and reliable witnesses.

26Rebekah Spratt is an Advanced Care Paramedic with the Ottawa Paramedic Service. She was dispatched to the Gladstone Avenue address shortly after 2:00 a.m. for a potential cardiac arrest. When she arrived on scene, a fire truck was already there as was a transport ambulance with two paramedics who were unloading their equipment. The three paramedics then went to the main doors of the building but discovered that they were locked. They then arranged for a firefighter to come downstairs. However, it was Mr. Rooney who did so after four or five minutes saying words to the effect of “She’s breathing okay but I can’t wake her up.” He was asked how he knew the patient and responded that he had been her partner for twenty-six years. Ms. Spratt testified that he was very calm at this point.

27The paramedics entered the building and used the elevator to go to the second floor; there was no room in the elevator for Mr. Rooney. Once on the second floor, they moved towards Apartment 208. The door to the unit was open and they saw a firefighter standing in the hallway and received some information from him. Ms. Spratt continued to talk to him while the other two paramedics went further into the apartment to assess the patient. Mr. Rooney then came into hallway and placed himself between her and the firefighter. She again asked about his relationship to the patient and was told that he was her partner. Based on information that she had just received from the firefighter, she asked Mr. Rooney whether it was true that paramedics had been dispatched to this location earlier in the evening. He responded that they had not attended but he confirmed that he had made the call and then called back to cancel it. She then asked him if it was true that he had struck the patient and he responded “Of course I hit her. She attacked me.” He then pulled down his pants to try to show her the extent of his injuries. She did not see anything as she turned her head and asked him to pull his pants up. Mr. Rooney then used his left hand to hide his genitals, pulled his pants further down, and yelled that he was not exposing himself to her. She once again told him to pull up his pants and tried to take a step back but could not go far due to the narrowness of the hallway. Mr. Rooney then stepped towards her continuing to yell while pointing a finger in her face. She asked the other paramedics to call for police back-up and told her colleagues that she could not assist them at that time because Mr. Rooney was being aggressive. It was her evidence that Mr. Rooney then stated “You fucking bitch. I’m not being aggressive.” He also yelled at her when he seemingly figured out that the police had been called. Finally, the firefighter got in between Mr. Rooney and her.

28Ms. Spratt testified to certain other utterances made by the accused. At some point during their interaction, he stated that after the first 911 call was cancelled, he thought she was faking so he put her to bed. In regard to the last 911 call that he made, he told Ms. Spratt “I couldn’t wake her up. I thought she was dead.” Both of these utterances, she testified, were made early in the conversation before he became upset. During cross-examination, I learned that at the time that he stated “Of course I hit her etc.”, he also told Ms. Spratt “Ever since she’s had that booster, she’s been acting crazy.” Also during cross-examination, Ms. Spratt agreed that it was possible that Mr. Rooney’s response “Of course I hit her. She attacked me” may have actually been “She attacked me so I slapped her.”

29Ms. Spratt then went to where the other paramedics were dealing with Ms. Xie. If I have understood her correctly, it was her evidence she was the first person to roll Ms. Xie off her side. She observed that the patient had “very significant facial trauma”: significant bruising to her left eye, swollen mouth and lips with dried blood inside the mouth and also inside the left ear. She displayed no pupillary reflex. I note that during cross-examination, she agreed that she had not observed any bleeding from the patient’s eyes, ears, or nose. She asked her colleagues about Ms. Xie’s other vital signs which were apparently within normal limits. Then, it was decided to move the patient into the ambulance for further assessments or treatment. There, they noticed other injuries including some bleeding to the back of Ms. Xie’s head and bruising and a possible deformity to the left side of her chest. They then transported her to the Ottawa Civic Hospital.

30I find that I must be very careful when considering Ms. Spratt’s evidence. Her reaction to Mr. Rooney seems very odd. He was complaining of an injury. She is a paramedic. He was not attempting to expose himself to her in a sexual manner. She is obviously familiar with the human body as the treatment of injuries is her profession. Moreover, her testimony about the nature of her interaction with Mr. Rooney is not supported to any significant extent by the evidence of the other witnesses who were present. I further note that rather than providing a dispassionate and professional account of Ms. Xie’s injuries, there was the following exchange in chief:

Q. Do you recall yourself making any observations with respect to the patient’s condition?
A. Once we rolled her over – they had saved that until I came in – we rolled her over, and the visual impact of the patient, I actually said, “Holy shit.”

She then described bruising and swelling to the face and some dried blood. Ms. Spratt, according to her own evidence, has been a paramedic for a quarter of a century and is an advanced care paramedic. I think it fair to infer that she had seen significantly worse trauma to the human body than what she observed at that point in Ms. Xie’s apartment. Her narrative commentary was inappropriate.

31The next witness was Paramedic Alexandre Adani. He testified that he and his partner were dispatched at 2:11 a.m. to the Gladstone address about a possible cardiac arrest. They arrived on scene a little less than eight minutes later and Mr. Adani saw a fire truck parked in front of the address. They began to unload their gear and that was when he saw Ms. Spratt arrive. The doors were locked but eventually Mr. Rooney came and let them in advising in effect that he was the one who had dialed 911. He described Mr. Rooney as being calm. The three paramedics then took the elevator to the second floor, Mr. Rooney indicating that he would meet them there.

32Once at the apartment, Mr. Adani and his partner immediately went to the room where Ms. Xie was on a bed. She was lying on her right side and appeared to have significant injuries and trauma to her face specifically bruising and swelling around her eyes, over her cheekbones and above her upper lip. There was liquid coming from her mouth and pooling on the mattress.

33At some point, Ms. Spratt asked him to contact dispatch to have police attend the scene. Mr. Adani did so and also decided to remove Ms. Xie from the apartment to continue the assessment. He testified that he did so because he thought that he had heard some yelling on scene and “there was a concern for our safety, being the three paramedics and firefighters on scene, and there was some concern about the safety of our patient.” It was his evidence that he contacted dispatch twice, the second time on a higher priority. He provided no explanation as to why he did this.

34During cross-examination, Mr. Granger asked this witness about the “yelling” that he had heard. The voices were in the hallway of the apartment. He was unable to say whether the voices had an angry or nervous tone.

35The paramedics moved Ms. Xie down to their ambulance and there continued their assessment. Mr. Adani observed that she had some bruising under her left breast. Ms. Xie remained unconscious throughout the time she was in Mr. Adani’s presence. Based on his assessment, Mr. Adani determined that her situation was life-threatening and transported her to the Ottawa Civic Hospital at 2:43 a.m. arriving there three minutes later.

36Acting Staff Sergeant Jim O’Connell-Smith of the Ottawa Police Service was on duty during the early hours of September 16, 2022. At 2:29 a.m., he was dispatched to Unit 208 at 865 Gladstone Avenue to assist paramedics on a call. He was advised that the paramedics had a patient who was not displaying any vital signs, that she had possibly been assaulted, and they were dealing with an aggressive male. It was Mr. O’Connell-Smith’s understanding that two other police officers were also being dispatched to that address at that time. He arrived on scene at 2:34 a.m. and observed that the other two officers, Constables Vanderheiden and Munroe, were already there and were in the front lobby talking to a paramedic. He also saw a female patient, Yu Kun Xie, being loaded into an ambulance. Staff Sergeant O’Connell-Smith instructed Constable Munroe to follow the ambulance to the Ottawa Civic Hospital. He spoke as well to Mr. Vanderheiden and received some information from him including the concerns of the paramedics about the state of Ms. Xie and the behaviour of the male. That male was Mr. Rooney.

37Mr. O’Connell-Smith and Mr. Vanderheiden then took the elevator to the second floor. As soon as the doors opened, the two men were confronted by Mr. Rooney. They did not know who he was or how he was related to the incident they were investigating. He demanded to know to where Ms. Xie was being taken and how she was doing. He then stated words “It was done in self-defence” or words very close to those. The staff sergeant observed Constable Vanderheiden ask Mr. Rooney to stop talking and place him under arrest for aggravated assault. This was just outside of the elevator doors. The constable then read out the rights to counsel, cautions, and the s. 524 warning. During the process of the arrest, Mr. Rooney then stated “She attacked me and it was in self-defence” or, once again, words very close to those. Mr. O’Connell-Smith described Mr. Rooney as becoming more confrontational with the officers during this process. Once Mr. Rooney had been arrested, he instructed Constable Vanderheiden and another constable to transport him to the central police station. He himself then drove to the hospital.

38Mr. O’Connell-Smith arrived at the Ottawa Civic at approximately 2:53 a.m. Medical personal were still attending to Ms. Xie. At 3:30 a.m., he was advised by a doctor that the injuries sustained by her would be fatal and that she would likely die in the next couple of days. Recognizing that Mr. Rooney’s legal jeopardy had just changed, the staff sergeant contacted Constable Vanderheiden at the police station and told him to caution Mr. Rooney that the charges were being upgraded to murder. Mr. O’Connell-Smith then returned to 865 Gladstone at 3:49 a.m. and assisted in the investigation on scene.

39Constable Tyler Vanderheiden testified that he too responded to the radio dispatch of 2:29 a.m. and headed to the Gladstone address. He understood that he was being sent there to assist the paramedics in a suspicious situation with a person whose vital signs were absent. He arrived there at 2:32 or 2:33 a.m. and observed that both fire and ambulance services were already there. As he was entering into the lobby of this building, he saw the paramedics coming out with Ms. Xie. He had a brief conversation with one of them and learned that she felt that Ms. Xie had been badly assaulted and that when they asked Mr. Rooney what had happened he had become defensive and argumentative and a firefighter had had to intervene. Mr. Vanderheiden then looked quickly at the patient on the gurney as she was being moved out and observed that her lips were swollen and her left eye was swollen shut.

40Constable Vanderheiden then got into the elevator along with Staff Sergeant O’Connell-Smith who had just arrived. When the elevator doors opened on the second floor, Mr. Rooney was right in front of them asking where Ms. Xie was being taken. Immediately after this conversation, the constable cautioned the accused to ensure that he would not say things that could be used in court against him. Mr. Vanderheiden at that point decided to arrest Mr. Rooney for aggravated assault, did so and read all the rights and cautions. This arrest was at 2:36 a.m. as was the reading out of the rights to counsel, etc. Mr. Rooney indicated his understanding of the rights and primary and secondary cautions. However, the officer testified that he became very agitated when the s. 524 warning was read out, pulling away from the officers and yelling and screaming.

41The three men then used the elevator to return to the ground floor and Mr. Rooney was transported to the police station. He was then paraded before the cellblock sergeant, searched, and a voice mail was left for counsel of choice. While Mr. Rooney was being searched, Constable Vanderheiden noticed small cuts on the prisoner’s hands. As a result, he arranged to have a forensic identification officer attend to take photos of those wounds. That officer came and took custody of Mr. Rooney in order to document the wounds and Mr. Vanderheiden left their presence. He returned after receiving a phone call from Staff Sergeant O’Connell-Smith who told him about the change in Mr. Rooney’s jeopardy and told him to inform Mr. Rooney of this development and read out the rights to counsel again but this time in the context of a murder charge. This was at 3:32 a.m. At 4:17 a.m., he was asked whether he wished to try to call his lawyer again; counsel had still not responded to the voice mail left by Mr. Vanderheiden. He opted to wait. He was then housed in a cell. At 9:50 a.m., a phone call was made by police to Mr. Granger, the law partner of the counsel of choice. Mr. Rooney and Mr. Granger spoke until 10:23 a.m. I find that both Mr. Vanderheiden and Mr. O’Connell-Smith were reliable and credible.

42Detective Marie-Josée Séguin began her shift at 6:00 a.m. on the morning of September 16 and was assigned to the case of Mr. Rooney that had come in overnight. I have no concerns about the credibility or reliability of Det. Séguin. She began to review the material that was in the file and then contacted Constable Munro who was at the hospital at 6:36 a.m. to get an update on the status of Ms. Xie. The detective was advised that while she still alive, it was not likely that she would survive her injuries. It was unknown, however, how long she would remain alive. Ms. Séguin was further advised that next-of-kin was expected to be at the hospital at 7:00 a.m. She then continued with her investigation. She received a phone call at approximately 9:30 a.m. from medical staff at the hospital reiterating that Ms. Xie would not survive her injuries.

43At 10:22 a.m., she was notified that Mr. Granger was calling. She spoke to him and confirmed that his client would be held for show cause and that the charge was still aggravated assault but that it might change if Ms. Xie died. Then at 11:26 a.m., she was notified by another detective that the medical staff had advised him that Ms. Xie would die once she was unplugged from life support.[1]

44One hour after receiving this last bit of information, at 12:26 p.m., Detective Séguin began an interview with Mr. Rooney. She was aware that he had been arrested for aggravated assault but had later been cautioned for murder. She cautioned him again but this time for aggravated assault, attempt murder, and murder. Mr. Radcliffe has chosen to lead the statement that Mr. Rooney provided during that interview as part of the Crown case.

45He explained that he and Ms. Xie had been in a relationship for fifteen years. He explained how they had met when he was 42 and she was 62 years old. They never married and do not seem to have set up a household but would alternate between their individual residences. He described the relationship as having difficulties due to her dementia the main symptom of which was “extreme memory loss”. Mr. Rooney told the detective that he and the daughter had exchanged texts on the issue of Ms. Xie’s dementia. He also stated that she had attacked him on prior occasions but he would immobilize her without hurting her. He told the detective that he had sustained some injuries from these attacks. He had not reported these aggressions to the police but had told Ms. Xie’s daughter about this behaviour in text messages.

46He described an incident two weeks earlier when she complained of chest pain and insisted on going to hospital. They went to Queensway Carleton Hospital by ambulance. By the time they got to see the doctor, she was holding her chest and rocking back and forth. The doctor did all types of tests but it seems that there was nothing seriously wrong and that she was exaggerating. During other earlier incidents when she was attacking him, she would claim he was breaking her arm or wrist when he was restraining her so he would let go and she would then immediately attack him again. That is why he had thought she was crying wolf, he explained, when he had cancelled the ambulance calls.

47With respect to the incident that had led to Ms. Xie’s hospitalization, he told Detective Séguin that “my recollection isn’t that clear of what happened.” He recounted how the day before (i.e., September 15) he and Ms. Xie had been at his home. He had been helping her trying to get a record of her income from the Canada Revenue Agency to maintain her rent subsidy. She then went to take a bath. He was in another room. She accused him at one point of having made a key to her apartment. At some point he thought he heard her slip and fall “a little bit” in the bath. He asked and she confirmed that she was Okay. Ms. Xie then came out of the bathroom.

48They sat on the couch and he gave her a cup of tea. She then threw it at him; it was hot but not scalding. He tried to immobilize her, but she fought back by scratching and kicking and biting. As well, she tried to damage some of his property. He had difficulty controlling her and she was hurting him. She tried to use a chair to hit him. At one point, she grabbed his groin area. He described this action as “… she grabbed me by the balls. She basically just ripped my balls off.” Mr. Rooney stated that he would release her but she would then attack him again. He recounted to Detective Séguin that at one point during the struggle, he put his knee to her midriff/stomach area to immobilize her.

49He admitted to slapping her in the mouth during this struggle and thereby causing the bleeding: “I think it was like a backhand, like a swipe where I just, ‘Please get away.’ I had to get her away from me” and “I should have found some other option to get away, but I was still being held. I had to break her grip. I had to get her away. I had to use some force.” He added, “So I smacked her harder than I should have but I smacked her to kind of wake her up and try to snap her out of it. And “I believe that probably when she fell, when she hit her head, when she hit her other eye.” However, he denied having punched her in the eye and having told Ms. Xie’s daughter that he had done so. He did not know what had caused the injury to her eye.

50After he slapped her, she fell down and he moved away from her. He began to clean up the room. She seemed calmer and then left the house. Prior to leaving, Ms. Xie claimed that he had injured her in that body area and he was worried about that. He had followed her after she left his dwelling because he was concerned about that injury: “And I was worried that I would go to her place and see her on the floor or knock on the door and see her dying or something, and I had to, somebody had to check on her.”

51He recounted how he had left his house to follow Ms. Xie and eventually caught up with her. They eventually got off a bus and walked around for a while. She told Mr. Rooney that she wanted to go see her daughter, however, they went to Ms. Xie’s apartment. Mr. Rooney told the detective that he did not want Ms. Xie to go to hospital or call police. He stated “My main fear when her lip was split, I thought oh my god, you know, something’s going to happen. Like I’m going to be charged for being the aggressor when in fact, no, I was attacked first.”

52Once at her apartment, Ms. Xie told him to leave because she needed to lie down. He responded that he would not leave until he was sure that she was okay. He asked her whether she wanted to go to hospital and she responded “Maybe. I don’t feel well.” He monitored her and she seemed to get worse and he tried to wake her up. He thought she might be faking. He explained that he canceled the ambulance because he was afraid that they would both get in a lot of trouble if she was faking it. He called again because she seemed to be getting worse. He stated “My memory isn’t great. I checked her about three times. The first time I checked her, she looked terrible but she was still just snoring. I looked up on the computer. I checked her pulse rate. I looked up on the computer. I said “What’s the regular pulse rate for somebody sleeping?” I checked the pulse rate on her neck; it was normal. So I decided to cancel the hospital call. Something along those lines. I am not sure the exact sequence of events of time. Something like that happened.”

53A series of photographs depicting injuries to Mr. Rooney were adduced through the detective. In no particular order, one observes redness to the knuckles of Mr. Rooney’s left hand, abrasions and scratches to his left hand, thumb, wrist, and forearm, similar injuries to his right shoulder, ribs, inner elbow, and biceps and both sides of his upper stomach, on his right lower stomach, to his left shoulder and triceps, both sides of his lower back and a significant cut to the top of his right buttock, to his right upper outer leg, his right knee, his left leg above the knee and on the hamstring, a series of three parallel scratches where his right leg and body meet, in other words, very close to his genitals (it seems that these wounds bled sufficiently to cause staining through to the outside of his underwear), as well as bruising to the top of both feet.

54Dr. Charis Kepron was qualified to testify at this trial as an expert in forensic pathology, the nature and cause of injuries, and cause and mechanism of death. It is the doctor’s opinion that Ms. Xie’s cause of death was complications of blunt force head injury. She explained that as a result of an impact or impacts to her head, Ms. Xie suffered a subdural hematoma which is bleeding that occurs on the surface of the brain between the that organ and the skull, in other words in the subdural space. Sufficient blood accumulated there to put pressure on her brain. That pressure forced the brain to begin to squeeze out mainly through the hole at the base of the skull where the brainstem connects with the spinal cord in a process called herniation. As this was going on, the pressure from this process also caused the brain to swell. Ultimately, death resulted from this mechanism caused by blunt force trauma.

55Mr. Radcliffe questioned Dr. Kepron on whether herniation and swelling will cause death.

A. Not inevitably, but in many cases, yes. So there certainly are situations where people can survive a head injury like this, but typically when there is – when the pressure is sufficient that there is significant herniation of the brain, the prognosis is very poor at that point and the majority of people will not survive that, especially without any sort of intervention.

Typically, if people are going to survive an injury like this, there will have been some sort of neurosurgical intervention to relieve the pressure on the brain.

Q. Is there any value to timely intervention?

A. Yes, I would say in general, yes, the sooner the better, but timely treatment is not a guarantee of survival.

56Dr. Kepron described the recent injuries that she noted during the course of the autopsy:

• bruise around the left eye and a smaller bruise on the right upper eyelid;
• bruising to the inside of both lips and the inside of the left cheek; the inside of the lower lip had a laceration;
• a small bruise on the outside of the right cheek by the mouth;
• a small laceration inside the left nostril;
• on the lower left surface of the jaw, there were two bruises;
• three areas of bruising on the chest, the largest being on the left side;
• a scrape or abrasion on the left side of the back and a bruise on the lower right side of the back;
• a number of bruises on the arms and legs. With respect to the arms, the bruises were on the upper arm, forearm, and wrist;
• three fractured ribs on the left side in line with the armpit; the doctor testified that CPR had not been utilized on Ms. Xie; she opined that these fractures could have been caused by her having been hit by something, or her having fallen on a hard surface, or her having been squeezed; due to the lack of significant bruising to the skin over this area, it was her opinion that the fractures had been caused by some form of compression, however, she did allow that an alternative explanation could have been a fall onto a flat surface;
• bruising, not visible externally, to the middle of the back of the head;
• bruising to a muscle in the area of the left temple;
• with respect to the internal cranium, subdural hemorrhage, brain swelling, and herniation of the brain;

57Dr. Kepron opined that the foregoing injuries could have been sustained as a result of something striking Ms. Xie’s face or a fall onto an unyielding surface. When asked about how many blows could have caused the injuries, she was unable to say as one blow could theoretically cause more than one injury and, furthermore, some of the injuries could have been caused when she was being moved by medical or paramedical staff (e.g. the bruises to the upper arms). However, it was her opinion that with respect to the bruising to the head, that to the back of the head and that to the right eye would have each been separate impacts from the blow or blows that caused the other facial bruising. She testified that “it would seem that there would be at least three impacts to the head.” She could not say as much with respect to the rest of the body.

58Mr. Radcliffe questioned Dr. Kepron about whether the subdural hemorrhage could have been caused by a single slap to Ms. Xie’s face. She answered that it was possible but that a significant amount of force would have been required. In regard to the fractured ribs, she testified that they could have been caused by a person weighing between 175 and 200 lbs. kneeling on Ms. Xie’s chest. It was also her opinion that a person, having been slapped across the face and thereby sustaining a subdural hemorrhage, would have been able to travel the distances that Ms. Xie did during a lucid interval. Dr. Kepron defined a “lucid interval” as the period of time during which the individual who has sustained a traumatic injury that has caused bleeding inside the skull is still awake and alert and can interact until the symptoms of the injury manifest themselves and they ultimately lose consciousness. During cross-examination, the doctor agreed that if instead of a slap, the subdural hemorrhage had been caused by a fall onto a hard unyielding surface, the person still would have been able to travel as Ms. Xie did. She also agreed that if the hemorrhage had been caused thirty minutes earlier, it would probably not have changed her answer.

59It is important to note that during cross-examination, Dr. Kepron testified that she was unable to say which impact or impacts caused the subdural hemorrhage in this case: the impact that caused the subdural bruise to the back of the head or one of the impacts to the face. However, she agreed that a fall with the head hitting the ground is a more common cause for this type of injury and that it would be unusual to see a subdural hemorrhage resulting from a punch or slap to the face in individuals with normal brains. That being said, it was also her evidence that as a result of Alzheimer’s disease, Ms. Xie’s brain was more vulnerable to that type of injury. But at the end of the day, she agreed with two defence suggestions. First of all, that a slip and fall with the head striking the ground could account for the acute subdural hemorrhage seen in this case. Secondly, that the likelihood of this injury would be increased if the individual had Alzheimer’s disease.

60The Crown asked Dr. Kepron about what symptoms would typically become visible to an observer at the end of the lucid period. She responded that it would depend on where the injury to the brain is located, however, typically, there would be vomiting, unsteadiness, stumbling, falling, complaints of pain, slurring of speech, and other speech difficulties, seizures, and then drowsiness and finally a loss of consciousness. However, not every symptom is present in every case.

61Dr. Kepron also testified about the findings of one of her colleagues who had performed a much closer examination of Ms. Xie’s brain. That pathologist confirmed Dr. Kepron’s opinion about the injuries to the brain and noted that they had been sustained less than 48 hours prior to death. The colleague also found signs of two neurodegenerative conditions: Alzheimer’s disease and changes to the blood vessels within the brain. Dr. Kepron agreed that the changes to the brain due to Alzheimer’s disease were of sufficient severity to produce clinical symptoms of dementia including cognitive impairment. However, the neuropathological examination could not determine what specific symptoms that Ms. Xie may have experienced. She testified that memory lapses are the most common early symptoms and as the disease progresses, one would expect to see behavioural change such as disinhibition, aggression, and loss of the ability to reason. She agreed that the degree of cognitive impairment for someone with Alzheimer’s disease is often worse if they also have a cerebrovascular disease. Dr. Kepron noted that the presence of these neurodegenerative conditions would have contributed to an overall worse prognosis for Ms. Xie’s ability to survive the head injury.

62At the end of the examination in chief, the doctor was asked “At what point in the lucid interval is medical intervention most helpful?” Her response was as follows:

The answer is always going to be the sooner the better, so the sooner after the head injury occurs and the bleeding starts, the more likely you are to have a favourable outcome. The longer you wait, then the poorer the prognosis. But, you know, the exact point of – you know, what is the point of no return, so to speak, is going to be variable from patient to patient and from head injury to head injury.

Dr. Kepron testified that subdural hemorrhages are not inevitably fatal. While she was initially not in a position to agree with the suggestion that there is a high mortality rate associated with this type of injury generally speaking, she did agree that where it occurred along with complications of bleeding into the brain stem (as in the present case), the prognosis becomes very poor.

63The doctor testified during cross-examination that she had learned from the medical records that the neurosurgery team that had been consulted about Ms. Xie had opted not to do surgery as they felt her injury was not survivable at the time they were asked to assess her. Based on the information that she had in this case, she could not say whether even timely medical intervention would have saved Ms. Xie’s life. Mr. Granger asked her about this.

Q. Now, in terms of the timing of medical intervention, I think you told us earlier it’s difficult to say with any degree of certainty what, what impact, if any, the timing of medical intervention in this case had.

A. Correct.

Q. So you’d be speculating to suggest that, with medical intervention any earlier, the outcome would’ve been different.

A. Correct.

Q. And playing into that combination of Ms. Xie’s age, her underlying dementia and underlying cerebrovascular disease, those factors all would have made her prognosis worse, even with earlier medical intervention.

A. Yes, I think that’s fair.

64During cross-examination, Dr. Kepron was asked about the sub-scalp bruise on the back of Ms. Xie’s head. She agreed that one of the potential causes of that injury could have been a fall resulting in Ms. Xie’s head striking a firm unyielding surface. She agreed, upon being shown a photograph of the bathtub at Mr. Rooney’s apartment, that that would present such a surface. She further agreed that that this injury to the back of Ms. Xie’s head could have been caused by her having slipped and striking her head on the bathtub. The resulting bruise would not have been visible on the surface of her skin.

65Mr. Rooney testified in his own defence. He testified that he had met Ms. Xie through outings to a casino sixteen years ago. They become lovers and companions over that time period. However, due to Ms. Xie’s desire for secrecy, he had only met Ms. Xie’s daughter about two years prior to the incident before the court and only perhaps three times. He recounted that while he and Ms. Xie maintained their separate households, by the time of her death, they were spending almost every night together as well as during the day.

66According to Mr. Rooney, Ms. Xie, in the last years of her life, had begun to display mental difficulties. She could become unresponsive, she would ask the same question repeatedly, but she would recover fairly quickly. She had become paranoid about her money. He was concerned as well, about another change in her personality; she was becoming increasingly violent and would slap him very hard on his body and had also bitten him.

67Mr. Rooney testified in chief about an incident that occurred during the last month of Ms. Xie’s life. Despite the fact that the incident was not directly related to the allegations of September 15-16, 2022, Mr. Rooney’s position at trial is it informed his cancelling of the 911 calls he had made. I have already made reference to this incident when discussing Mr. Rooney’s statement that was adduced by Crown.

68At some point during the month prior to her death, Mr. Rooney accompanied Ms. Xie to the Queensway-Carleton Hospital as she was transported by ambulance to the Emergency Department.

and we went into the Emergency room and we were waiting there. And I believe that she wanted to get through the line quicker so what she did was she like convulsed on it. She kind of slid off her seat onto the floor and convulsed a bit on the floor like with her legs.

And then an attendant nurse came over in concern and said, “Is everything okay here?” and had her re-seat, and questioned her a little bit, and eventually decided to give her a – just an antacid, which is known as a “pink lady,” which is a mixture of – it’s a mixture of that Pepto-Bismol with the freezing agent they use in Chloraseptic, that throat spray. So that’s known as a “pink lady,” and they gave her that.

And I believe they bumped us up through. We got really quickly into the doctor – into the Emergency room with the doctor, and I believe that that was a result of her - kind of her, her dramatics or – but - so we got into the doctor, and he ascertained that the pink lady had worked and that her pain was gone, which she admitted.

And he seemed ups... - ups... – the doctor seemed quite upset at that point. He seemed not quite upset but he seemed a bit – a bit nonplussed - like, you know, “Okay, you took an ambulance.”

…

Okay. Well, she mentioned that, “Oh, but by the way, I have a side pain I’d like you to look at,” and then that’s when he became upset and he said, “You, you took an ambulance here for heartburn. Heartburn.” And he said, “If you have any other issues, you take that up with your family doctor.” But he, he seemed like urgent – “Like, come on, get out, get moving,” kind of thing; you know, “we’ve got more important things.”

I note here that it was the evidence of Ms. Zhao that Mr. Rooney had mentioned this incident to her a few days prior to her mother’s death.

69Turning to the events of September 15, 2022, Mr. Rooney testified that they were still close. However, due to her declining mental condition, he felt that the relationship had become one more of him being immersed in helping her than one of mutual affection. They spent the day together and then went to his home, arriving there after dark. Ms. Xie went to take a bath. Mr. Rooney was making some herbal tea when he heard a loud thump and assumed that she had fallen down again. A few seconds later, there were a couple of further thumps. It was his evidence that her had heard her fall before at her apartment and elsewhere without sustaining any serious injuries and noted that she had been falling frequently over the last couple of years. This time, he went and checked on her in the bathroom and asked if she was okay. He testified that she had an enraged look on her face and stated “Give me back the key to my apartment.” He responded that he did not have a key and asked why she thought he did. She then accused him of putting medication into her “things”. He then tried to hug her but she let out a scream and bit his shoulder so he left the bathroom and went back to preparing the tea hoping that it would calm her down.

70She eventually came out of the bathroom and he gave her the tea as she sat on the couch. He turned away from her and then felt her throw the tea onto his back and heard the cup fall to the ground. He went and got a mop and started to clean up the mess. However, Ms. Xie was still very upset and came towards him screaming. He grabbed her wrists to prevent her from scratching or biting him and placed her back onto the couch. She kept on screaming despite him asking her to calm down. So he “very gently” put his hand over her mouth and said “Quiet. Quiet” and as he did so she bit the tip of his finger. He described the bite as so hard that if he had not pulled his hand away she would have bitten it off. As one of her hands was now free, she started grabbing at him and ended up grabbing his scrotum and squeezing. Mr. Rooney picked up a pillow and used it to push her back onto the couch and she then let go but soon grabbed him in the same place again and also came at him scratching and biting and pulling at a lanyard key he had around his neck.

71Mr. Rooney attempted to control her but ultimately could not. She continued fighting and screaming. Eventually, he hit at her with the back of his hand and struck her in the mouth albeit ‘not with maximum force”. He was then able to get away from her. She stopped screaming but may have hit her head against “the fridge or, or, or a chair or something.” He described her as just sitting there. He walked away from her and then returned and told her to leave his home. He also told her that he was going to call her daughter. She then got ready and left. He was worried that Ms. Xie might fall down again somewhere or take the wrong bus. So he called Lucy Zhao, the daughter, hoping that she might be able to help.

72Mr. Granger asked him about what occurred during that telephone conversation.

Q. Now, you mentioned a call with Lucy. And you heard Lucy testify in this trial and tell us that - she says you told her: Take your mother home. She scratched me. I punched her. She has a black eye and I don’t ever want her to come to my place anymore. What, what do you say about those, those comments?

A. That’s not – that’s not accurate. I believe I called her and I, I said that she had attacked me, that I had hit her, and that, as far as I was concerned, we had to do something about the situation, you know, before we got together again, if we ever got together again. I was pretty well saying that I was at my wits’ end, kind of thing. Like I had tried everything.

Q. Did you punch Yu Kun at any point that night?

A. No.

He denied having observed Ms. Xie with a black eye while she was still at his home and that he had mentioned it during the telephone call to Ms. Zhao. He did allow that he had seen Ms. Xie with a black eye when they were at her apartment later that evening.

73Due to his concerns for Ms. Xie, he decided to try and catch up with her. He finally did at a transit hub and boarded a bus with her. That bus could take them to either Ms. Xie’s place or the nearby home of Ms. Zhao. Mr. Rooney recalled that they got off at a stop closer to the latter and they started walking towards it. He testified that he was in search of help. He was also apprehensive because he wanted to be sure that Ms. Zhao heard both sides of the story, not just her mother’s. However, according to Mr. Rooney, Ms. Zhao ultimately seemed to decide that she did not wish to go to her daughter’s place and walked towards her own dwelling. The two of them went in.

74Once inside, she soon asked again that Mr. Rooney return her key and grabbed at the lanyard and began pulling him around, screaming and scratching him. He attempted to pull away and as she was holding on, she was pulled forward and fell down. She then got up and lay down on the bed. She would not answer any of the questions he was putting to her such as “Do you want me to go?’ He testified that at that point he did not know what to do. He considered calling the Royal Ottawa Hospital or another psychiatric facility. In the end, he called 911 because he felt that she was not acting normally and was not answering his questions.

75During this 911 call, he explained what he had observed and was told to take her downstairs and wait. He then tried to convince her to come with him but she seemed resistant to the idea. Mr. Granger asked him what he meant.

Just seems like angry body language, like kind of, “Leave me alone,” muttering in Chinese. And so I decided to call back. I’m torn; I think maybe she’s gonna be okay after all. It seems like more of the – more of the usual, the usual things that we’ve gone through, and I’m hoping that maybe some rest will calm her down to the point where we can resume discussing where to go forward from there.

Q. And you say you decide to call back 911. What, what happens there?

A. I called back to 911. I say that things seem to be okay for now, basically. Those aren’t the exact words but....

76After this second 911 call, Mr. Rooney described himself as having been stuck in the same situation. Nothing changed. Thus, he came to the conclusion that he would have to call 911 a third time. He did so. Mr. Granger asked him the reason. He responded “Because I want to make sure that I could leave there safely, and knowing that she’s okay, hoping – hope, hope - hoping for a resolution to the situation.” His recollection was that the 911 operator advised him that the paramedics would have difficulty entering the building because there was no ring number for the apartment.

77His lawyer then asked him about the fourth call he placed to 911. He explained

Again, I, I believe that I – I believe that I called and cancelled. Nothing seemed to be really changing. She seemed to be asleep, snoring. And I had thoughts in my head that there was gonna be difficulties with her - getting her downstairs, getting her to cooperate, or maybe being attacked again or some - anything, anything of that nature.

78Mr. Rooney “eventually” checked on Ms. Xie and was still worried. He used Google to try to find some information on his own to see if her pulse rate was normal and whether she was breathing normally. He looked in on her again and noticed that she looked pale. As a result, he decided to call 911 a fifth time. He went downstairs to let the firefighters in and the paramedics arrived afterwards. He testified about the interaction that he had with Ms. Spratt.

I was hoping she would rush in and check on Yu Kun, but she seemed more concerned with, you know, questioning me as to what, what was going on, to find out more about Yu Kun – I guess to find out more about Yu Kun’s condition. So I basically – I said, “Well, we had a fight earlier.” And she looked at me with reproach. And I said, “But, you know, she attacked me.” And I showed her all of – all the injuries on my body.

Q. What - generally speaking, what areas of your body do you show her?

A. I showed her my front, my back, my arms, my, my wrists, my hands - there was scars everywhere - on my legs. I tried to show her a groin injury where she had scratched me, and she took offence to that.

Q. How did she take offence to that?

A. “Do not expose yourself to me.”

Q. Were you trying to expose yourself to her?

A. No. I was trying to show her a scratch beside my underwear, and I thought that because she was a trained medical professional that you know, she’d seen basically it all, so it really didn’t cross my mind that this was a – this was any different for her.

Q. And you heard her say that - she says that you said to her, “You fucking bitch, I’m not being aggressive.” What do you say about that?

A. I, I don’t remember saying that. And I had no reason to be angry with her, really. I mean – so I can’t imagine myself going to the point of using profanity at her when she was just there trying to sort things out. So I don’t believe that that even happened. I don’t believe that I used profanity.

79Mr. Granger took Mr. Rooney through the photographs of his injuries taken at the police station when he was arrested. It was his evidence that the various wounds visible in those photographs were all sustained when he was defending himself from Ms. Xie on the night in question.

80Mr. Radcliffe cross-examined Mr. Rooney at length on the 911 calls he made that night. The accused agreed with the Crown’s suggestions that he had made those calls because he wanted to help Ms. Xie. He agreed that he was trying to be accurate when he described the situation to the 911 operators. Mr. Radcliffe then went over some of the details of those calls. He began by asking whether the accused had told a 911 operator that Ms. Xie was having some kind of minor seizure. Mr. Rooney responded “I forget”, an odd response in the circumstances. He was then taken to a transcript of that call and then conceded that he had said those words and that they accurately reflected what he was observing at the time. He further agreed that he told an operator that she was having trouble breathing, possibly heart problems, and that her whole stomach was twitching.

81The Crown’s questions then turned to Mr. Rooney’s Google searches. It was Mr. Rooney’s position that Ms. Xie’s condition remained static until the very end when he noticed her becoming pale.

82At one point during the cross-examination, Mr. Radcliffe made the suggestion that certain things about which Mr. Rooney had testified were things that he had not mentioned to the police when he had been interviewed after his arrest. Mr. Radcliffe went further and suggested that these new things “are merely inventions and are not actually true.” Mr. Rooney disagreed with the suggestion. Mr. Radcliffe then listed several such topics, for example: that 911 had told him to bring Ms. Xie downstairs. He maintained that he had indeed heard the thumps which he insisted were the sounds of Ms. Xie having fallen. Mr. Radcliffe took him to the transcript of his interview with the police where it was clear that he had not been as certain at that time that she had actually fallen: “I thought I heard her slip and fall a little bit in the bath.” He agreed as well that he had not mentioned that the sounds were ‘loud’.

83Mr. Rooney had testified that when he went into the bathroom to check on Ms. Xie after he had heard the thump, he had asked her if she was okay but she had not answered. When Mr. Radcliffe questioned him about what he had told the police in his statement on this point, his answer lacked any credibility. Mr. Rooney was clearly flailing around trying to account for the inconsistency.

Q. I’m going to suggest to you, sir, that she did answer you and she said she was okay.

A. Yeah, see, my condition at that time was much, much worse than today. Like I had not slept in about three days. I agree that I said that, that she, she said that she’s okay. But for her - a lot of our – because she’s Chinese, a lot of our – it’s hard to explain it, but a lot of it is non-verbal communication, it’s, it’s like if she – I say, “Are you okay?” And she doesn’t do anything or she doesn’t - she doesn’t – I don’t know, she doesn’t – she’s not adamant about being un-okay. I may have interpreted it that way, that she didn’t answer me, okay, she must be okay...

Q. Sir, I’m going to suggest to you....

A. ...but I probably mis-phrased it there by saying that she had - she said that she was okay. I believe she did not say that she was okay. I don’t think she answered me.

Q. Are you suggesting to the Court, sir, that your memory, almost two years after the fact of that incident, is better today than it was...

A. Yes.

Q. ...the day after the incident?

A. Yes. Yes. I was in bad, bad, bad condition that night.

Q. You said you hadn’t slept for three days, is that right?

A. Yes, I didn’t have my pain medication. I didn’t have my sleep medication and everything. And the conditions of the – of the actual incarceration, et cetera, exacerbating everything. And the shock that I had been through, the trauma, everything, all of them combined, I’m not in the optimum medical condition or, or....

Q. So, is it your evidence, sir, that you had been in police custody for three days, approximately, prior to this interview?

A. Okay, I would agree with that, if that’s on your records. My – I don’t have good det... – I’m not a details man, but I – approximately, yes. Yes.

Q. So approximately three days in police custody.

A. Yes.

Q. And is that why you hadn’t slept?

A. Yes.

Q. If I were to suggest to you, sir, that this interview that we’re referring to, the 98-pager, happened on Friday, September 16th, which was merely a few hours after, I’ll say - approximately let’s say 12 hours, just for....

A. Okay.

Q. Where do the three days of no sleep come from, Mr. Rooney?

A. Well, that’s not exclusively the police incarceration period, maybe I had – I have sleep problems at home. But, again, I would – I would add in the trauma that I had been through as exacerbating my ability to concentrate and to just having the energy to, to recall clearly and, you know, enunciate clearly everything exactly.

Q. Is that the end of your answer, sir?

A. Yeah.

84Mr. Rooney had testified that the attack by Ms. Xie had commenced in the bathroom with the bite to the shoulder. Mr. Radcliffe pointed out to him that in his September 16, 2022 statement to the police, he had stated that her attack had occurred when she was sitting on the couch and had thrown a cup of tea at him.

Q. I suggest to you, sir, there’s absolutely no indication to the police officer in this interview that you gave on September 16th, so within hours of the incident, of any commencement of the attack occurring in the bathroom. Do you agree with me or not?

A. (Pause) I’m not sure. I would have to – you mean the very beginning of the inter... – from the very beginning of the interview with Séguin?

Q. I’ll ask my question a different way, sir, if it’s - if it’s troublesome for you. Do you believe there’s any indication in the interview with Séguin about the so-called attack starting in the bathroom?

A. I can’t recall. I can’t recall it. I’d have to look at the beginning of the interview with Séguin and see where we went through it.

I have reviewed the statement in question and have found no such reference.

85There were other such inconsistencies put to him by the Crown. As well, and as we have already seen, Mr. Rooney took the position that his memory at trial of the events of roughly two years earlier was better than it had been a few hours after his arrest and that this would explain any apparent inconsistencies. This flies in the face of logic and human experience.

86Despite taking the position that his memory at trial was superior to that immediately following the events, I heard the following.

Q. You’ve also said to us today, sir, that she may have hit her head against the fridge or a chair or something. Do you recall saying that to us today?

A. Yes.

Q. I’m going to suggest to you that she hit her head after falling as a result of your strike. Do you agree with that?

A. That’s – everything happened so quickly. She was pulling on a thing around my waist – I mean around my neck. She was pulling at my waist. There was a pillow involved at one point, where I was blocking and kind of pushing her off but, for the life of me - and I swear, I can’t photographically or filmat... – filmatographically [sic] sequentially recreate that in mind, what happened.

Q. I’m going to suggest to you, sir, what happened is she fell off the couch after you struck her. She didn’t hit the fridge; she didn’t hit a chair.

A. No, she would’ve been on her feet at that time.

87In his statement to the police, Mr. Rooney had mentioned kneeling on Ms. Xie’s chest. He agreed with Mr. Radcliffe’s suggestion that he had not mentioned it during his examination in chief.

88Mr. Rooney had testified in chief to being attacked a second time that evening by Ms. Xie, this time at her apartment. However, he agreed with the Crown’s suggestion that he had never mentioned this second attack to anyone before his testimony. He also agreed that it was a “new memory, that is, from your perspective, clearer today than it was within 12 hours of the event.”

89He testified during cross examination that it had been Ms. Xie who had decided to not go to her daughter’s place. He had wanted to do so because he was at his wit’s end. However, he agreed with Mr. Radcliffe that he could have called Ms. Zhao again at any point after her mother attacked him but that he had not. He disagreed that he had dissuaded Ms. Xie from going to the nearby Civic Hospital as they were walking. He then agreed only in part with the Crown’s suggestion that his actions after Ms. Xie had left his home had been principally motivated by his fear of being charged for having assaulted her and that that had been his main fear stating “Not my main – not my main fear. I mean, definitely, definitely that is in, in the back of my mind that I will be charged as the attacker.” Mr. Radcliffe then pointed out that hours after his arrest, he had told the police that it had indeed been his main fear and asked whether that had been the case? Mr. Rooney responded, after a pause, “Not really.”

90Mr. Radcliffe continued along this line of questioning. He had Mr. Rooney agree that he had told the investigating officer “Next thing I know, split lip, oh, my God, the police are going to be here. I’m, I’m, I’m public enemy number one, basically. Right?” and “I didn’t want her to go to the hospital or whatever ... I didn’t want her ... I didn’t want her to call the police or anything like this.” Mr. Rooney then explained to the Court

And I would qualify that with it wasn’t that simple because it would open up a whole – a whole thing where I would have to identify Yu Kun as the aggressor and she would have to be - possibly suffer some consequences for that or – so this was – it wasn’t purely – I would agree [sic] with your – I would disagree with your statement that it was purely selfish.

Mr. Radcliffe then took him to another part of his statement to the police where he had said

And then, ... I thought, ‘No, this is going to get... cause me a lot of trouble. It’s going to get us both in, in her ... if she’s faking ..., it’s going to [be a] waste [of] time ... So, I ... I cancelled the ambulance...

leading Mr. Rooney to testify

Okay, I could rephrase that. It’s – this is going to get us both in a lot of trouble was really what I was trying to say but, under the duress, under the circumstances, you know, my, my diction isn’t perfect, but that was what I was trying to get out.

And

Well, it would cause me trouble if she got in trouble. It would cause both of us – it would – it would cause - you know, anyway, you get the point.

91Mr. Rooney maintained that he had been defending himself and that Ms. Xie had been the aggressor. It was also his evidence that he had not lied to the 911 operators when he had cancelled the ambulances and that those cancellations had not been due to his self interest. He denied having struck Ms. Xie “harder than [he] should have” and that he consciously and intentionally withheld help from her. He explained, somewhat bizarrely,

I mean, if I had known, obviously I would have gotten help immediately, but she had faked incidences in the past and I wasn’t convinced of the serious [sic] of – seriousness of the situation. And my mood at that time was exacerbated by just some of the things that I was experiencing. I was experiencing disconnected calls myself.

92Mr. Radcliffe asked Mr. Rooney about why he had not obtained help for Ms. Xie when Ms. Xie was pointing to her ribs and chest during the bus ride to her home. Mr. Rooney explained that she had not used words to express pain as he would have expected and thus there was no urgency. Plus, she had faked things “very similar in the past, just a week prior.” He then stated, “I hadn’t made a hard and fast decision. I mean, I was still watching her on the bus, I was – if it got any worse.”

93Mr. Rooney has a short and dated criminal record. In 1995, the passing of sentence was suspended and he was placed on probation for a period of eighteen months for one count of common assault. Then, in 2003, he received another suspended sentence and two years of probation for one count of indecent act. Finally, in 2010, his sentence for one count of mischief was, in light of seven days of pre-trial custody, another suspended sentence and eighteen months of probation.

94I am of the view that Mr. Rooney is an unreliable historian. It is unclear to me whether this is due to issues of testimonial capacity, credibility, or both. Part of the problem in determining whether the issue is merely one of credibility is that Mr. Rooney clearly has some psychological and/or neurological problems. During the course of this multiday trial, he has sat with his eyes usually closed tightly, and his shoulders frequently hunched over. There were times when he wore earplugs in court. When he testified, his mannerisms were odd. Part of the cause of these behaviours was doubtless due to the stress of facing the present charge and taking the stand in his own defence. But it is obvious that there was more at play here than a reaction to an uncomfortable situation.

95The only evidence before me as to why he so presents comes from Mr. Rooney himself. He was born in England and came to Canada in 1968. He completed Grade 12 and then worked for temporary employment agencies. He explained that he then went on disability (i.e., ODSP) in 1992. However, his explanation for why he did so is very far from clear:

Q. Why did you go on Disability?

A. I was having so many difficulties in life. was having trouble finding work, I was having trouble learning, and I was at wits’ end. I thought that there was something wrong with me so I, I decided to go on Disability.

Q. And was there ever any particular diagnosis of anything wrong with you?

A. Yeah, anti-depression [sic] and - sorry, I was on anti-depressants. I was on [sic] depression and also, I had a series of accidents. I had nerve damage in my body...

Q. And you’re hold....

A. ...which is affecting my – everything, my whole, whole life, my sleep, my physical abilities to work physically.

He explained that he had sustained nerve damage to the left side of his body and was wearing some sort of a brace on his left wrist while testifying. It will be noted that there was not a real answer to the question of diagnosis. Moreover, the manner in which he presented in court was seemingly indicative of more than nerve damage and/or depression. Indeed, after his arrest, he explained to Detective Séguin that he was “neurologically damaged” due to alcohol poisoning, concussions, and some sort of choke-out game played as a child. However, Mr. Rooney’s laptop was seized and searched by the police as part of this investigation. Results stemming from that search were adduced by the Crown. Someone used that computer for some reason to search out topics related to anger and autism.

96At the end of the day, I have no real understanding of why Mr. Rooney presents as he does. As a result, and as I have already indicated, I am unable to determine whether he is not credible or unreliable. However, it is clear that I must treat his evidence with caution.

97Further to the testimony of the foregoing witnesses and the exhibits entered through them, a significant number of admissions were made.

i. At the time of these allegations, Mr. Rooney had been residing at 26 Winthrop Private since 2017.
ii. At the time of these allegations, Ms. Xie had been residing at Unit 208 – 865 Gladstone Avenue since 2005.
iii. Mr. Rooney was arrested by Constable Vanderheiden on September 16, 2022 at approximately 2:36 a.m. at 865 Gladstone and is the accused before the court in this matter.
iv. Mr. Rooney made the statements attributed to him in the 911 calls.
v. The audio recordings of Mr. Rooney with 911 and Paramedics during those calls are accurate, authentic, and admissible.
vi. The statements of Mr. Rooney during those calls were voluntary.
vii. All the video recordings from OC Transpo and private sources are accurate, authentic, and admissible.
viii. Ms. Xie died at the Civic Hospital on September 17, 2022 at approximately 1:05 p.m.
ix. Following her death, her body remained subject to proper continuity until the autopsy performed by Dr. Kepron.
x. All photos filed as exhibits accurately depict their subjects and are authentic.
xi. Nothing was disturbed inside 26 Winthrop Private between the final departure of Ms. Xie and Mr. Rooney on September 15, 2022 and the execution of the search warrant on September 16, 2022.
xii. During the execution of this warrant, police seized the laptop referred to in Exhibit 18.
xiii. Nothing was disturbed inside 208-865 Gladstone Ave. between the departure of Ms. Xie with paramedics on September 16, 2022 and the execution of the search warrant later that day.
xiv. All items seized by police have remained subject to proper continuity throughout their detention by police.
xv. The digital evidence report prepared by Det. Jonathan Gardiner attached to these admissions is accurate and admitted on consent. This is a 26 page report dated September 16, 2022 regarding “Lucy’s iPhone.”
xvi. The four photographs 22-247451_2214_IMG_2637-40 of Ms. Xie attached to these admissions were taken at the Civic Hospital on September 16, 2022 at approximately 9:00 a.m.
xvii. The fourteen photographs 22-247451_1922_IMG_4041-54 of Ms. Xie attached to these admissions were taken at the morgue on the afternoon of September 17, 2022.
xviii. On September 16, 2022, swabs were taken from under Ms. Xie’s right hand fingernails at the Civic Hospital. On September 19, 2022, clippings were taken of her fingernails during the postmortem examination. Testing of these items resulted in DNA from Ms. Xie plus one male. Mr. Rooney cannot be excluded as the source of a male profile from a swab of her right hand fingernails and from a swab of the underside of her right hand fingernail clippings. The STR DNA results are estimated to be greater than one trillion times more likely if that male profile originates from Mr. Rooney than if it originates from an unknown person unrelated to him.
xix. The DNA testing referred to in the above paragraph is the only DNA testing completed in association with this investigation.
xx. Neuropathologist Dr. Leslie Hamilton undertook a post-mortem neuropathological examination of Ms. Xie’s brain. Her observations included the following:
a. There were neuropathological changes to the brain consistent with Alzheimer’s Disease. These changes were in evolution from an intermediate to high level; and
b. There was evidence of cerebrovascular disease in the brain, specifically mild-moderate atherosclerosis and mild-moderate arteriolosclerosis.
xxi. Prior to determining that Ms. Xie was not a candidate for neurosurgical intervention, a CT scan was conducted on her brain on September 16, 2022 between 3:21 and 3:36 a.m.
xxii. From at least 3:36 a.m. on September 16, 2022 onwards, the injury that she had suffered was not survivable.
xxiii. Mr. Rooney’s cell phone was seized incident to arrest. The contents of the phone were searched pursuant to search warrant. The search period was from August 16 to September 16, 2022 inclusive. Exhibit 13 includes all text messages between Mr. Rooney’s cell phone and a cell phone with phone number 613 983 5012 (which has been identified as belonging to Lucy Zhao) that were seized during the execution of this search warrant.
xxiv. No forensic analysis was undertaken in relation to any fixed red staining located by members of the Ottawa Police Service during searches at 26 Winthrop Private or 865 Gladstone Avenue.

98Exhibit 13, to which I have just referred, is a corpus of texts between Mr. Rooney and Ms. Zhao. I will here only refer to those which are relevant to the various issues before me. In a text to Ms. Zhao dated August 20, 2022, Mr. Rooney refers to what he believes are “micro seizures” that her mother has been having. On September 10, he mentions Ms. Xie’s “cognitive decline.” That same day, Ms. Zhao responds and commiserates “I am sorry to hear that [the situation] is awful.”

The Law

99As the defence has called evidence in this matter, I must analyze the corpus of evidence before me within the well-known general framework established by the Supreme Court of Canada in R. v. W.D., [1991] SCR 742 at para. 28:

• if I believe the accused’s evidence, he must be acquitted;
• if I do not believe his evidence but it raises a reasonable doubt, he must be acquitted;
• if I do not believe his evidence and it does not raise a reasonable doubt, the remaining evidence that is believed must establish his guilt beyond a reasonable doubt.

100As the Crown case against Mr. Rooney with respect to the allegation of unlawful act manslaughter is based largely on circumstantial evidence, I must be mindful of the manner in which this type of evidence is to be considered. Cromwell J., for the unanimous Supreme Court of Canada, stated the following in R. v. Villaroman, 2016 SCC 33 at paragraphs 40-42:

40The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375:

In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.

41While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation.

42The second is from R. v. Dipnarine, [cite omitted] The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.

101The sections of the Criminal Code defining the offence of manslaughter are as follows:

222 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act;

(b) by criminal negligence;

234 Culpable homicide that is not murder or infanticide is manslaughter.

102With respect to unlawful act manslaughter, the Crown is required to prove beyond a reasonable doubt as actus reus that the accused committed an unlawful act and that said act caused the death of the victim. The mens rea to be proven to that same standard is objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, coupled with the fault element for the predicate offence (summarized in R. v. Javanmardi, 2019 SCC 54 at paras. 25-26, and 31). There is no requirement that the unlawful act alone have been the cause of the person’s death (R. v. Maybin, 2012 SCC 24).

103I turn now to manslaughter by criminal negligence. The Supreme Court decision in Javanmardi (at paras. 19-20) reviews the elements that the Crown must prove. With respect to the actus reus, it must be shown to the requisite standard that the accused undertook an act or omitted to do anything that it was their legal duty to do. It must also be shown that the act or omission caused the person’s death. The mens rea of Criminal negligence manslaughter will be established where the Crown has proven that the act or omission “shows wanton or reckless disregard for the lives or safety of other persons” (s. 219(1) Criminal Code). The terms ‘wanton’ and ‘reckless’ in this context have been explained by Hill J. in R. v. Menezes, [2002] O.J. No. 551 at para 72 (cited with favour by the Ontario Court of Appeal in R. v. J.L., 2006):

The term wanton means “heedlessly”, “ungoverned” and “undisciplined” or an “unrestrained disregard for the consequences”. The word “reckless” means “heedless of consequences, headlong, irresponsible.” [citations omitted].

The Supreme Court has held that this requires the Crown to prove beyond a reasonable doubt that the accused’s conduct constituted a marked and substantial departure from the conduct of a reasonable person in the accused’s circumstances (see Javanmardi at paras. 21-23).

104I turn now to the element of causation. The Ontario Court of Appeal discussed this issue at paragraphs 21ff. in R. v. Kippax.

21] To determine whether a person can be held responsible for causing a particular result, in this case death or bodily harm, we must determine whether the person caused that result not only in fact but also in law: …

22Factual causation involves an inquiry about how the victim died or suffered bodily harm, in a medical, mechanical or physical sense, and an accused’s contribution to that result: …

23Factual causation involves a determination of whether A caused B. The answer to the question of whether A caused B is resolved in a criminal case by the evidence of witnesses, those who testify about facts and others who offer relevant opinions: … The factual determination of whether A caused B has nothing to do with intention, foresight or risk: …

24To prove factual causation, the Crown does not have prove that an accused’s conduct was either the direct or predominant contributing cause of the prohibited consequence, whether death or bodily harm. It is no defence for an accused to say that the conduct of another was a greater or more substantial cause of the death or injuries. The Crown need only prove that an accused’s conduct was a significant contributing cause of the death or injuries or, said another way, that the accused’s conduct was “at least a contributing cause…outside the de minimis range”: …

26Legal causation, on the other hand, has to do with whether an accused should be held responsible in law for a prohibited consequence of his or her conduct, for example, death or bodily harm: … In legal causation, the inquiry is directed at the question of whether an accused should be held criminally responsible for the consequences that occurred: … In the analysis of legal causation in negligence-based offences, like dangerous driving, reasonable foreseeability of harm is a relevant consideration: …

28It is well-established that independent, voluntary human intervention in events started by an accused may break the chain of causation: … A new event may result in an accused’s conduct not being a significant contributing cause of a prohibited consequence. But legal responsibility for an event will remain and the chain of causation will not be broken where an accused intentionally produced the outcome, recklessly brought it about, or if the ordinarily circumspect person would have seen it as a likely consequence of his or her own conduct: … [citations omitted]

105More recently, in R. v. Romano, 2017 ONCA 837, the Ontario Court of Appeal returned to this issue. It dealt with legal causation at paragraph 29.

The legal causation inquiry recognizes that there are cases where the factual causation test is facially met, but where the accused should not be held criminally responsible because circumstances affect the level of moral fault or blameworthiness of the accused, making it inappropriate to treat his contribution to the consequence as “significant.” As the Supreme Court of Canada explained in Maybin, at para. 16, “[l]egal causation … is [therefore] a narrowing concept which funnels a wider range of factual causes into those which are sufficiently connected to a harm to warrant legal responsibility.” It enables some cases where the factual causation test is technically satisfied to be removed from the net of criminal liability because moral blame should not be imputed to the accused. In effect, circumstances can impel recognition that the act of the accused should not be imputed as a significant contributing cause: … [citations omitted]

106As Mr. Rooney’s position is that Ms. Xie attacked him and he acted in self-defence, I am required to analyze his actions through the lens of s. 34 Criminal Code.

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

107The Supreme Court of Canada reviewed this section in R. v. Khill, 2021 SCC 37. At paragraph 51, Martin J. (for the majority) remarked “[t]he three inquiries under s. 34(1), set out above, can usefully be conceptualized as (1) the catalyst; (2) the motive; and (3) the response …”

108The catalyst refers to “the accused’s state of mind and the perception of events that led them to act” (at paragraph 52). However, Martin J. stressed, at paragraph 53, that the accused’s belief must also be objectively reasonable.

109The inquiry into motive is where the court considers the accused’s purpose in committing the act that constitutes the alleged offence. Were they acting to defend or protect themselves or others? (see at paragraph 59).

110The final inquiry is that into the response itself. The Supreme Court explained at paragraph 64 that

[t]hrough s. 34(2), Parliament has also expressly structured how a decision maker ought to determine whether an act of self-defence was reasonable in the circumstances. As the language of the provision dictates, the starting point is that reasonableness will be measured according to “the relevant circumstances of the person, the other parties and the act”. This standard both casts a wide net of inquiry covering how the act happened and what role each person played and modifies the objective standard to take into account certain characteristics of the accused — including size, age, gender, and physical capabilities (s. 34(2)(e)). Also added into the equation are certain experiences of the accused, including the relationship and history of violence between the parties (s. 34(2)(f) and (f.1)).

Analysis

111I have already indicated that I find that Mr. Rooney was a witness about whose evidence I must be very cautious. Given the level of my concerns about his credibility and/or reliability, I am of the view that there are many parts of his evidence that I can accept only where there is some independent corroboration to be found in the evidentiary record. Keeping this in mind, I turn first to the issue of unlawful act manslaughter where it is the Crown position that Mr. Rooney was not acting in self-defence but if he was so acting, his response to Ms. Xie’s assault was excessive.

112I will start by indicating that I am unable to accept Mr. Rooney’s version of the events given the problems with his evidence. However, his evidence, combined with certain other elements in the evidentiary record leave me with a reasonable doubt that the following could have occurred: that Ms. Xie threw a cup of tea at him and had then attacked him. He, as a result, had taken steps to immobilize her in order to defend himself and in the course of doing so, Ms. Xie had sustained some or all of the injuries noted by Dr. Kepron. It is to be remembered that a response in self-defence is not required to be measured to a nicety. I have a reasonable doubt that Mr. Rooney had difficulty in controlling Ms. Xie and that her actions caused him severe pain. I do not see the one slap and the use of his body weight to keep her down as unreasonable. I am cognizant of the differences in age, size, and strength between Ms. Xie and Mr. Rooney. However, and as I will discuss, the evidence independent of Mr. Rooney’s testimony supports the possibility that she was aggressive at the time and would have been difficult to control.

113The Crown submits that Ms. Xie would have been justified in injuring Mr. Rooney as she did in order to defend herself from an attack by Mr. Rooney. While this may be true, there is nothing inherent in the injuries sustained by the accused that leads me to believe that she inflicted them in legitimate self-defence rather than as part of her attack on him. As well, the extent of Mr. Rooney’s injuries indicate that the fight was far from one-sided.

114It was the evidence of Mr. Rooney that Ms. Xie had, in the last years of her life, begun to display problems with cognition. This is supported by the evidence of Ms. Zhao who had noted these problems. It was the further evidence of the accused that, in the period leading up to her death, Ms. Xie had begun to display aggressive behaviours. This was not corroborated by her daughter, however, it was his evidence that he had told Ms. Zhao about this in texts. The texts that were adduced as evidence do not refer to violent behaviour but do mention “micro seizures” and “cognitive decline”. Furthermore, Ms. Zhao allowed during cross-examination that there had been an occurrence when the accused and her mother had been arguing and Ms. Xie had called her and she had spoken with Mr. Rooney. Also relevant here is the call that Ms. Zhao testified that she had received on September 15, 2022 when Mr. Rooney complained that Ms. Xie had accused him of stealing $500 and had then scratched him.

115Then there is the evidence of Dr. Kepron relevant to this point: Ms. Xie’s brain showed signs of both Alzheimer’s disease and a cerebrovascular disease. The doctor testified that the changes to the brain that resulted were sufficiently severe to produce clinical symptoms of dementia. While the doctor could not testify to what specific symptoms Ms. Xie would have displayed as a result of the observed changes to her brain, Dr. Kepron would have expected to see manifestations of disinhibition, aggression, and an inability to reason as the disease progressed.

116Thus, I find that Mr. Rooney’s evidence is corroborated to an extent that I find myself, while not believing him, left in a state of reasonable doubt that Ms. Xie assaulted him and that she sustained her injuries as a result of his reasonable efforts to defend himself. I am unable to determine exactly at what point the fatal injury was sustained, however, given my conclusion, I need not examine the issue of whether it occurred as a result of a slip in the bath. Moreover, given my conclusion, I prefer to deal with the issue of causation as part of my analysis of the alternative Crown theory.

117I turn now to that second Crown theory: manslaughter by criminal negligence. The Crown submits that the criminal failure to seek assistance for Ms. Xie commenced immediately after he assaulted her at his home. However, I have already dismissed the Crown’s theory of an assault by Mr. Rooney. Moreover, Ms. Xie was able to leave the house and head off to her own home during the lucid period. While she had sustained the fatal injury while at Mr. Rooney’s dwelling, its existence would not have been apparent to anyone at that point and during the lucid period. Furthermore, none of the other injuries sustained by Ms. Xie required immediate medical attention as was evidenced by her ability to travel to her own home.

118That situation changed after Mr. Rooney and Ms. Xie arrive at her place. At some point, Mr. Rooney became concerned enough about Ms. Xie’s state that he called 911 more than once. Mr. Rooney has explained that he cancelled the emergency calls due to a belief that she was faking and that she would get into trouble once that was discovered by the paramedics. I do not believe him and that makes little sense. The normal and safe thing for him to have done in the circumstances would be to allow the paramedics to examine her. The defence has conceded that he owed Ms. Xie a duty of care (s. 215(1)(b) Criminal Code). I find that Mr. Rooney, despite his concern and affection for Ms. Xie, was motivated to cancel the emergency calls due to a concern that he would get into trouble for having injured her and was reckless as to the consequences. In these circumstances, this constitutes a marked and substantial departure from the conduct of a reasonable person.

119Where the Crown case fails is on the issue of causation. Dr. Kepron’s evidence on this point is central:

Q. So you’d be speculating to suggest that, with medical intervention any earlier, the outcome would’ve been different.

A. Correct.

I cannot find, based on this evidence, that the Crown has proven to the required standard that Mr. Rooney’s negligence contributed to Ms. Xie’s death.

120The fact scenario in the present case is akin to that dealt with by the Ontario Court of Justice (General Division) in R. v. Smith, [1997] O.J. No. 4721. Mr. Smith was charged with criminal negligence causing death, failure to provide the necessaries of life, and assault. The deceased was his infant son. The Crown theory was that Mr. Smith delayed taking the baby for medical assistance because he was afraid that he would be found responsible for having mistreated him. He eventually did seek medical help but only when the baby’s medical condition became desperate (see at paragraph 32).

121Two medical experts testified at that trial. Neither could say whether earlier medical intervention would have saved the life of the child. Justice Lederman dealt with this issue at paragraphs 63-64 of his decision.

63 The Crown is required to prove the elements of the offence beyond a reasonable doubt. In this case, part of the actus reus of criminal negligence causing death is that the accused caused the death of Latrell within the meaning of Smithers, supra. The indictment charges that the accused's criminally negligent act was failing to secure medical treatment for Latrell. The evidence of Dr. Ferris is that there is no basis to conclude that earlier medical intervention could have saved this infant. Dr. Smith's testimony on this issue is equivocal. At best, he could only say that, as a general rule, earlier medical treatment means there is a greater likelihood a child in peril will survive.

64 Based on the medical evidence one can only speculate that the delay in bringing Latrell in to the Scarborough medical clinic was a contributing cause beyond the de minimus level. … Second, Dr. Smith was unable to determine the point of irreversibility when medical attention would not have been of any value. Accordingly, the evidence adduced does not amount to proof beyond a reasonable doubt that the accused's failure to secure immediate medical attention for his son was a contributing cause of his son's death. Accordingly, on this ground alone, the Crown has not proved its case beyond a reasonable doubt to establish criminal negligence causing death.

122Mr. Rooney’s actions in cancelling the 911 calls were selfish and reprehensible. However, they were not criminal as the Crown has not proven any causal link beyond the de minimis level to those actions and the death of Ms. Xie.

123The charge against Mr. Rooney is dismissed.

Released: February 21, 2025
Signed: Justice Berg

1Detective Séguin was advised on September 17 at 1:50 p.m. that Ms. Xie had passed away.