Court of Appeal for Ontario

Date: 20211217 Docket: C66863

Simmons, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Kristin Kuntz Appellant

Counsel: Michael Lacy and Bryan Badali, for the appellant Michael Dunn, for the respondent

Heard: October 18, 2021 by video conference

On appeal from the conviction entered and the sentence imposed on May 6, 2019 by Justice Susan E. Healey of the Superior Court of Justice, sitting with a jury.

Simmons J.A.:

A. Introduction

[1] Chi-Ki “Jackie” Yeung died at the Tamaracks adult residential group home in the early morning hours of April 22, 2016. Mr. Yeung was 41 years old at the time and a long-time resident of Tamaracks. He suffered from Smith-Magenis syndrome, a genetic disorder that causes physical, mental and behavioural issues.

[2] The appellant was the overnight attendant on duty at Tamaracks when Mr. Yeung died. Shortly after 1 a.m. on April 22, 2016, the appellant assisted Mr. Yeung in getting into the bathtub because Mr. Yeung had soiled himself. According to the appellant, Mr. Yeung became aggressive with him when he attempted to check the cause of what appeared to be bleeding from Mr. Yeung’s mouth. In accordance with what the appellant testified was his understanding of the appropriate protocol, he left Mr. Yeung alone in the bathtub for approximately 16 minutes to socially isolate him and allow him to calm down. This, however, was not in compliance with Tamaracks’ “eyes-on” bathing protocol for Mr. Yeung, which was premised on a risk of seizure or falling asleep in the tub.

[3] According to the appellant, when he returned to the bathroom, Mr. Yeung was submerged in the bathtub struggling to breathe. The appellant called 911 and followed the instructions of the dispatcher. Mr. Yeung was pronounced dead at 2:06 a.m.

[4] In November 2016, the appellant was charged with criminal negligence causing death. At trial, the Crown challenged the credibility of aspects of the appellant’s evidence: i) the appellant’s claim that Mr. Yeung was aggressive with him, requiring him to invoke the social isolation protocol; and ii) the appellant’s evidence that when he returned to the bathroom, Mr. Yeung’s nose and mouth were above water. In addition to credibility, the contested issues at trial included whether the appellant’s actions showed wanton or reckless disregard for the life or safety of Mr. Yeung; whether the appellant was operating under an honest and reasonable mistake of fact when he socially isolated Mr. Yeung; and whether the appellant’s actions contributed significantly to Mr. Yeung’s death (i.e., causation).

[5] Concerning causation, the Crown relied on the evidence of Dr. Noel McAuliffe, the forensic pathologist who conducted Mr. Yeung’s autopsy. Dr. McAuliffe opined that the immediate cause of death was drowning. In his post‑mortem report he identified Smith-Magenis syndrome as a significant contributing condition. During cross-examination, Dr. McAuliffe acknowledged he could not specify what led to the drowning. Nor could he eliminate a sudden cardiac event as the cause of death.

[6] The appellant appeals from conviction and seeks leave to appeal sentence. He raises the following issues on appeal:

i. the verdict was unreasonable;

ii. the trial judge erred in her charge to the jury on reasonable mistake of fact;

iii. in light of the burden of proof, the trial judge erred by failing to properly instruct the jury concerning the absence of expert evidence in relation to Mr. Yeung’s Smith-Magenis condition; and

iv. the trial judge improperly used lack of remorse as an aggravating factor on sentence.

[7] For the reasons that follow, I would allow the appeal, hold that the finding of guilt was unreasonable, set aside the conviction and enter an acquittal.

B. Background

(1) Tamaracks and Mr. Yeung

[8] Tamaracks was one of several group homes operated by New Leaf: Living and Learning Together Inc. to provide residential care and support for adults with developmental disabilities. In 2016, six residents, including Mr. Yeung, lived at Tamaracks. Tamaracks was staffed 24 hours a day, seven days per week and employed about a dozen employees.

[9] Mr. Yeung moved into Tamaracks in 2006, and, apart from a one-year sojourn at another New Leaf group home, remained at Tamaracks until his death. At the time of his admission, Mr. Yeung’s diagnoses included Smith-Magenis syndrome and sleep apnea.

[10] The only medical witness who testified about Smith-Magenis syndrome was Dr. McAuliffe. He had received information that Mr. Yeung suffered from Smith‑Magenis syndrome. He described the syndrome as a rare condition arising from a missing gene that leaves affected individuals with both physical and mental disabilities. He said Mr. Yeung was described as having attention deficit hyperactivity disorder associated with the condition. Dr. McAuliffe did not provide any additional information about the syndrome. Rather, he testified, “if you want any more information on this rare condition you might refer to somebody who specializes in these things.”

[11] Roger Romses, New Leaf’s manager of residential services, estimated Mr. Yeung had a mental age of four to five years old. He testified that people with Smith-Magenis syndrome struggle with shared attention and shared objects and could be quick to escalate conflict over sharing. Other staff members said Mr. Yeung could be aggressive at times, including hitting staff members and other residents. He was therefore given mood stabilizing drugs, such as clonazepam. Mr. Romses testified that another side effect of Smith-Magenis was that Mr. Yeung had disruptive sleep patterns such that, at times, he would fall asleep at odd times during the day.

[12] Although Mr. Romses was not employed at Tamaracks in 2006, he understood that Mr. Yeung also suffered from sleep apnea at the time of his admission and was at risk of seizures as a result. Mr. Romses believed that Mr. Yeung was quite heavy at the time of his admission, that following his admission he lost weight over time and that, as a result, his sleep apnea resolved to the point that he no longer required a CPAP machine. Records relating to Mr. Yeung indicated that his sleep apnea had sufficiently resolved by 2012 such that he no longer required a CPAP machine.

[13] In 2010, a special unit was built for Mr. Yeung on the lower level of Tamaracks. The unit had its own bedroom, bathroom and living space as well as an area of the backyard fenced off from the space used by other residents.

(2) The Bathing Protocol

[14] It was undisputed at trial that Mr. Yeung was capable of managing himself physically while in the bathtub. However, the Tamaracks’ Behavioural Support Plan and Plan of Care for Mr. Yeung mandated “eyes on” supervision of Mr. Yeung while in the bathtub because his file indicated a history of seizures and a risk that he could fall asleep while in the bathtub.

[15] The Plan of Care indicated in bold capitalized letters that “Jack[ie] requires eyes on supervision at all times when i[n] the bathtub due to his potential for seizures and falling asleep.” An information package for overnight awake staff specified that “[a]t no time is [Mr. Yeung] to have unsupervised use of his bathtub due to a potential risk of seizures and drowning.”

[16] As a result of this protocol, Mr. Yeung’s unit had a separate water shutoff behind a locked panel that allowed staff to control whether water was available for his bathtub. Staff were instructed not to let the water keep running and to ensure that the water was shut off when he was not in the bathtub.

[17] Despite the protocol, there was no record of Mr. Yeung having a seizure while at Tamaracks. [1] Further, although staff members, including the appellant testified to having seen Mr. Yeung fall asleep while in the bathtub, there was no evidence of him ever having to be rescued because of falling asleep in the bathtub.

(3) The CCTV Footage

[18] The Crown introduced CCTV footage from inside Mr. Yeung’s unit for the timeframe immediately preceding and following his death. The camera captured Mr. Yeung’s bedroom, an open door leading into a hallway and the bathroom across the hall. With the bathroom door open, the camera captured the toilet but not the sink or the bathtub.

[19] The footage ran from 12:51 a.m. to just before 1:46 a.m. on April 22, 2016. It showed that the appellant first entered Mr. Yeung’s unit at 12:52:12 a.m. and assisted Mr. Yeung getting clothes from his closet. The appellant then left the unit. Over the next 15 minutes the footage showed Mr. Yeung take off his clothing, enter the bathroom, hunch over the toilet for about a minute and then sit on it. Mr. Yeung then returned to his bedroom and laid down on his bed. The appellant returned to Mr. Yeung’s unit at 1:07:30 a.m. Mr. Yeung entered the bathroom at 1:10:15 a.m. Over the next few minutes, the appellant entered and exited the unit several times, checking in with Mr. Yeung in the bathroom. Among other things, he obtained cleaning products to clean the bed. At 1:16:23 a.m. the appellant entered the bathroom. Fifteen seconds later he appeared to lean down, then straightened up and left the bathroom and the unit.

[20] The appellant returned to the unit approximately 16 minutes after leaving. He re-entered the bathroom shortly before 1:34 a.m. The camera did not capture any further activity until the appellant opened the door approximately four minutes later. Mr. Yeung was lying on the floor. Over the next couple of minutes, the footage revealed the appellant speaking on the phone, bringing Mr. Yeung into the bedroom and performing CPR until EMS workers arrived.

(4) Cause of Death Evidence

[21] In examination-in-chief, Dr. McAuliffe confirmed that, in his opinion, the immediate cause of death was drowning. Further, he had information that Mr. Yeung had a disability known as Smith-Magenis syndrome, which he had identified as a significant condition contributing to death in his post-mortem report.

[22] Dr. McAuliffe explained that drowning is a form of asphyxia in which the air supply to the body is cut off as a result of submersion in a fluid, usually water. The average person will not survive for longer than five or six minutes once their air supply is cut off; however, the length of time it takes to drown can vary from person to person. For example, a person can die almost immediately from inhaling cold water into the larynx which could stop the heart: the submersion in water in this circumstance would fulfill the criteria for drowning.

[23] During cross-examination, Dr. McAuliffe confirmed that drowning is a diagnosis of exclusion based on ruling out other causes of death and taking account of the circumstances surrounding the death. He explained, “[t]here is no specific anatomical finding for drowning … [d]rowning is essentially a diagnosis of negative findings conjoined with appropriate circumstances.”

[24] In this case, Dr. McAuliffe received information that Mr. Yeung was found “without vital signs with his head fully submerged” in the bathtub. That information factored into his diagnosis of drowning as the cause of death. In the “Summary and Opinion” section of his post-mortem report he wrote:

He was found lifeless, fully submerged in a bathtub. There was no other sign of injury to the body. A toxicology screen shows no significant abnormality and there is no other evidence of injury on the body. [Emphasis added.]

[25] Dr. McAuliffe was cross-examined about the various risk factors Tamaracks had identified for Mr. Yeung while in the bathtub. When advised there was no documented incident of Mr. Yeung suffering a seizure during the ten years he was in care, Dr. McAuliffe said that the likelihood of a seizure “contributing to his demise would have to be qualified as a very remote or the remotest possible connection.”

[26] Concerning Smith-Magenis syndrome, Dr. McAuliffe confirmed that was background information in his report, but the “drowning per se [was] not qualified as to why drowning occurred.” Further, he had “no problem accepting” that Mr. Yeung’s physical capabilities did not lead to a risk of drowning if they had not presented as a risk at Tamaracks in the past.

[27] When asked what he would expect to happen if Mr. Yeung had fallen asleep in the bathtub taking account of the medications he was on, Dr. McAuliffe responded:

Well, I think in most circumstances one would immediately wake up. If one was to have water into their nose and mouth one would immediately wake up and that would be the end of the matter.

[28] Having discounted the likelihood that the identified risk factors were potential causes of the drowning, Dr. McAuliffe agreed it was a possibility that the cause of death was something not detectable on autopsy, such as a sudden cardiac arrest due to “an irregularity of the heartbeat, an arrhythmia which isn’t visible.” He confirmed that an undetected arrythmia that contributed to a sudden cardiac arrest “might or might not” lead to some distress before death occurs; that it could lead to a stoppage of breathing; and that CPR may or may not resuscitate someone. He went on to say, “hypothetically drowning may not be the cause of death.” However, “one would probably invoke the factor that caused the death with terminal drowning and conjoin the issue in that way.”

[29] Dr. McAuliffe subsequently agreed that if drowning was the cause of death there would have to be a reason for drowning to happen. Further, if there was no known reason for the drowning that could open up the possibility of a different cause of death. However, he had “no finding at autopsy that [he could] invoke to indicate what’s happened.” Nonetheless, he agreed that absent a known cause of the drowning it is possible there is an unexplained cause of death:

Q. And if those first three aren’t there [seizure, disability, falling asleep] and we don’t have any other reason, then it would open up the possibility that, because you say it’s a diagnosis of exclusion, we have a different cause of death and he was simply immersed in the water.

A. Again, that would be a reasonable invocation, but I have no finding at autopsy that I can invoke to indicate what’s happened.

Q. I’m not saying you do, but I am saying that if we rule out the first three, then, I mean, and we don’t have a reason for him to have been submerged, isn’t it possible there’s some unexplained cause of death?

A. Indeed.

A. – but just to make my position clear again, the fact that one sits in a bathtub of water as many people will do on a daily basis doesn’t raise any high degree of danger that you’re going to drown … If one is to drown in a bathtub there will generally be a reason why one has drowned in the bathtub. That could be as simple as alcohol intoxication, for instance. It could be drugs and alcohol overdose. It could be a head injury. It could be inflicted injury by somebody else. It could be traumatic as in somebody’s held under the water or it could be disease process, some of which we’ve been talking about here, and some disease processes of course don’t show anatomic stigmata at autopsy such as a cardiac arrhythmia or a seizure, but the natural course of a person’s life certainly doesn’t invoke drowning without something, some causative mechanism being added.

[30] Near the close of cross-examination, Dr. McAuliffe said the finding of fluid in the lungs “would support at least an element of drowning in a man with whatever provoked it.” However, in re-examination, he clarified that pulmonary edema (fluid in the lungs) does not mean water per se. Rather, the “lungs have exerted fluids” called pulmonary edema. While a typical finding associated with drowning, it is not diagnostic of drowning and is found in many other conditions, including cardiac issues.

[31] When asked in re-examination about his evidence that cardiac death would not be demonstrable, Dr. McAuliffe confirmed it would not be. He explained that the known causes of cardiac disease “were not of a prominence here” but said “cardiac deaths can occur for mysterious reasons in many cases”. If a heart problem caused Mr. Yeung to be submerged in the water Dr. McAuliffe thought that, provided he was submerged, most forensic pathologists would conjoin the precipitant and the element of drowning as the cause of death. Dr. McAuliffe also confirmed that if he had information that Mr. Yeung was moving, twitching or thrashing after being submerged and then pulled from the bathtub, that would give him “pause that some other issue wasn’t involved.” His information “in signing off the cause of death was that the person was submerged and lifeless.” If Mr. Yeung was found moving to some degree, he said, “one would have to be more speculative into the exact mechanism of what’s happened if that was the case.”

[32] Dr. McAuliffe was not asked about, nor did he comment on, Mr. Yeung’s action in leaning over the toilet as captured on video nor the bleeding the appellant testified to observing from Jackie’s mouth.

(5) The Appellant’s Evidence

[33] The appellant testified at trial. He confirmed that he had worked at Tamaracks since 2006 almost exclusively as an overnight awake counsellor. Mr. Yeung arrived at Tamaracks soon after the appellant began working there. The appellant worked with Mr. Yeung regularly.

[34] Although he enjoyed working with Mr. Yeung, the appellant testified that Mr. Yeung was aggressive every day and often hit the appellant. According to the appellant, Mr. Yeung was frequently aggressive while in the bathtub. The appellant confirmed having observed Mr. Yeung doze off while in the tub and then wake up again on previous occasions.

[35] The appellant testified that the Crisis Prevention Intervention training he took provided a number of strategies for dealing with aggressive residents. The main strategy he was trained to use, when the sole staff member on duty, was social isolation which involved removing the target of aggression and letting the resident cool down. The appellant was prohibited from physically engaging with Mr. Yeung one on one. He was particularly concerned about engaging with Mr. Yeung when no other staff were present because Mr. Yeung could have injured him, creating a risk for other residents. The appellant therefore understood from his training that the preferred strategy if Mr. Yeung became aggressive while the appellant was working alone was to socially isolate him for 10-15 minutes.

[36] The appellant went to check on Mr. Yeung around 12:50 a.m. on April 22, 2016 because he noticed Mr. Yeung was awake. It appeared Mr. Yeung had wet himself, so the appellant helped him get some clothes and then left to let him change. A short while later, the appellant checked the video monitor and noticed Mr. Yeung was still lying on the bed and had not changed his clothes. When he returned to Mr. Yeung’s unit, the appellant discovered Mr. Yeung had soiled himself. The appellant turned on the water so Mr. Yeung could take a bath. Mr. Yeung seemed to be pointing at some red liquid, which appeared to be blood, around his mouth. The appellant helped Mr. Yeung to the bath, retrieved some cleaning supplies and tried to call his on-call supervisor. He went back to check on Mr. Yeung who was by then in the bathtub. He tried to look into Mr. Yeung’s mouth but as soon as he did, Mr. Yeung tried to kick him and began yelling and gesturing at him. He therefore left Mr. Yeung, in accordance with his understanding of the social isolation protocol, to allow him to calm down. The appellant had not observed Mr. Yeung leaning over the toilet as was depicted on the CCTV footage.

[37] The appellant went back to the staff office located on the lower level of Tamaracks. After about 16 minutes, he returned to Mr. Yeung’s unit. He had intended to allow Mr. Yeung a 15-minute window to calm down and said he continued to hear Mr. Yeung in the bath until about a minute or so before his return.

[38] When he returned to Mr. Yeung’s unit, the appellant noticed the bathtub was overflowing. He shut the water off and then went into the bathroom. He saw that Mr. Yeung was in distress, with his nose above the water and his mouth slightly under it. He lifted Mr. Yeung up by his arms. Mr. Yeung was making a weird inhaling sound. The appellant called 911. The 911 operator directed the appellant to pull Mr. Yeung out of the bathtub and do a breath check. The appellant laid Mr. Yeung on his side. Mr. Yeung took a breath. The appellant pulled Mr. Yeung into his bedroom so he could do CPR. Mr. Yeung was no longer breathing.

[39] The appellant was challenged in cross-examination about his failure to mention Mr. Yeung being aggressive on the date in question until his police interview. He was also challenged about his statements on the 911 call and to the police to the effect that Mr. Yeung was “under the water” or “under the tub” when he found him and his failure to previously mention that Mr. Yeung’s nose was above water. The appellant agreed in cross-examination that the CCTV video did not show Mr. Yeung making any independent movements once he was pulled from the bathroom.

(6) The 911 Call

[40] A recording of the appellant’s 911 call was played during his testimony and made an exhibit at trial. [2]

[41] The recording includes the following exchanges:

Mr. Kuntz: “I have a man I think he’s drowning”

Dispatch: “Is the person awake?”

Mr. Kuntz: “He’s he’s out like out of it, his lips are blue”

Dispatch: “How old is he?”

Mr. Kuntz: “Uh he is taking breaths but I don’t know um”

Dispatch: “He’s breathing but you can’t wake him?”

Mr. Kuntz: “Nope”

Dispatch: “Okay sir you said he’s breathing?”

Mr. Kuntz: “He’s ... I don’t know ... fuck ... I don’t know ... he’s … JACKIE ... he was looking at me but now he’s out like he’s gone.”

Dispatch: “Is his chest rising and falling?”

Mr. Kuntz: “Nope.”

Dispatch: “No?”

Mr. Kuntz: “Nope.”

Dispatch asks Mr. Kuntz to do a breathing check

Mr. Kuntz: “He just took a breath.”

Dispatch: “He just took a breath?”

Mr. Kuntz: “Yup.”

Dispatch: “Okay.”

Mr. Kuntz: “I’m going to try pulling him out of the tub.”

Dispatch: “You found him in the tub?”

Mr. Kuntz: “Yeah I’m trying to pull him out right now.”

Dispatch: “Okay.”

Mr. Kuntz: “I got him out.”

Dispatch: “You got him out?”

Mr. Kuntz: “Yeah.”

Dispatch: “Okay.”

Dispatch: “Was he under the water when you found him?”

Mr. Kuntz: “Yup.”

Mr. Kuntz: “He keeps taking a breath like every couple seconds. He’s got blood coming out of his nose.”

Dispatch: “He’s not moving at all?”

Mr. Kuntz: “No no he’s not moving.”

Mr. Kuntz: “He woke up about an hour ago and he had like it sounded like pneumonia.”

Dispatch: “like he was having trouble breathing?”

Mr. Kuntz: “trouble breathing ... but he defecated … all over the bed so I put him in the tub … but he was walking, talking, he was fine, all of a sudden I left him for two minutes and came back and he was all in the tub and under so I pulled him up and out his lips were blue.”

Dispatch: “How long was he in the tub for?”

Mr. Kuntz: “oh, 5 minutes.”

Dispatch: “Is he still breathing? Is he still taking those puffs of air or?”

Mr. Kuntz: “No.”

Dispatch: “He stopped?”

Mr. Kuntz: “Yes. He’s full of water…”

C. Discussion

(a) Was the Verdict Unreasonable?

(i) The test for an unreasonable verdict

[42] Although appellate courts afford considerable deference to a jury verdict, the verdict is not immune from appellate review. Where an unreasonable verdict is alleged, the question is “whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered”: R. v. Yebes, [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, [2000] 1 S.C.R. 381, at para. 36. Where the Crown’s case depends on circumstantial evidence, an appellate court must ask whether the jury, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the evidence taken as a whole: R. v. Villaroman, [2016] 1 S.C.R. 1000, at paras. 55-56. The availability of competing inferences does not in itself make a verdict unreasonable. The question is whether the competing inferences are reasonable. It is for the trier of fact to draw the line that separates reasonable doubt from speculation.

(ii) The appellant’s argument that the Crown failed to prove causation

[43] The appellant contends that the verdict was unreasonable on two bases. I will address the appellant’s submission that the verdict was unreasonable because there was insufficient evidence for the jury to conclude that the appellant caused Mr. Yeung’s death because, in my view, this argument is dispositive of the appeal.

[44] In order to prove criminal negligence causing death, the Crown was required to prove beyond a reasonable doubt:

i. the appellant undertook an act, or omitted to do something it was his legal duty to do;

ii. that the appellant’s act or omission showed a wanton or reckless disregard for the life or safety of the deceased; and

iii. the appellant’s act or omissions caused the deceased death.

See R. v. Javanmardi, 439 D.L.R. (4th) 579, at paras. 19-21.

[45] The trial judge broke the second element down into the following steps:

a) has the Crown established beyond a reasonable doubt that the appellant’s conduct posed an obvious and serious risk to the life or safety of Mr. Yeung;

b) has the Crown established beyond a reasonable doubt that a reasonable person in the circumstances would have foreseen that such conduct posed a serious risk to the life or safety of Mr. Yeung and what the conduct of a reasonable person would be in the circumstances; and

c) has the Crown established beyond a reasonable doubt that the appellant’s conduct showed a wanton and reckless disregard for the life or safety of Mr. Yeung by proving that his conduct was a marked and substantial departure from what a reasonably prudent person would do in the same circumstances?

[46] Concerning the element of causation, the Crown must show that the appellant’s conduct contributed significantly to the deceased’s death: R. v. Nette, [2001] 3 S.C.R. 488. That may occur even if the appellant’s conduct was not the sole or main cause of the deceased’s death. If the appellant’s conduct contributed significantly to the deceased’s death, it does not matter that timely medical treatment might have saved the deceased’s life or that the appellant’s conduct only accelerated the deceased’s death from some existing disease or condition.

[47] Here, the appellant acknowledges that it was open to the jury to reject the entirety of his evidence concerning his interactions with Mr. Yeung on the night in question. Nonetheless, he submits that the evidence of his statements on the 911 call is compelling res gestae evidence that should have raised at least a doubt concerning whether Mr. Yeung took breaths after the appellant found him.

[48] In any event, the appellant submits there was no reasonable basis in the evidence on which a jury, acting reasonably, could conclude the appellant’s actions caused Mr. Yeung’s death. The Crown adduced no medical evidence at trial to confirm Mr. Yeung had any ongoing risk of seizures. Dr. McAuliffe’s evidence was that falling asleep in a bathtub would be unlikely to lead to death by drowning. Dr. McAuliffe could not eliminate an unknown cause, such as cardiac arrhythmia, as the cause of death.

[49] In response, the Crown submits that the only evidence at trial was that the cause of death was drowning. The jury did not have to find that Mr. Yeung had a seizure or fell asleep in the tub in order to find causation. It was open to the jury to accept the medical evidence that Mr. Yeung drowned. On that finding, the appellant’s conduct in leaving him alone in the tub was obviously a significant contributing factor leading to his death. The fact that Dr. McAuliffe could not identify the cause of the drowning or eliminate cardiac arrythmia as a cause of death does not make the verdict unreasonable. The presence of competing inferences does not make a verdict unreasonable. It is for the trier of fact to draw the line between reasonable inferences and speculation: Villaroman, at para. 71. Here, the suggestion that Mr. Yeung died as a result of a cardiac arrhythmia was nothing more than speculation.

[50] Even accepting that the jury rejected the appellant’s evidence, including the 911 call res gestae evidence, in its entirety, in my view, there was insufficient evidence in this case to prove beyond a reasonable doubt that the appellant’s actions were a significant contributing cause in Mr. Yeung’s death.

[51] As a starting point, Dr. McAuliffe made it very clear in his evidence that his conclusion that Mr. Yeung drowned was premised on two things he was told: Mr. Yeung was found both submerged and lifeless in the bathtub. There was no evidence at trial concerning the source of this report. It was undoubtedly open to the jury to reject the appellant’s trial evidence that Mr. Yeung’s nose was above the water when the appellant found him and to infer from the appellant’s statements on the 911 call that Mr. Yeung was fully submerged in the tub when the appellant found him. However, even if the jury rejected the appellant’s statements on the 911 call that he observed Mr. Yeung taking breaths, that left a lacuna of evidence on the issue of whether Mr. Yeung was showing any signs of life.

[52] Second, the Crown led no medical evidence at trial to establish that Mr. Yeung had any risk factors related to bathing alone in a bathtub. The evidence led at trial indicated that his supposed risk of seizures arose from sleep apnea. The evidence suggested this condition had significantly improved, if not resolved, by 2012. Although there was anecdotal evidence of Mr. Yeung falling asleep in the bathtub due to Smith-Magenis syndrome, there was no medical evidence to support the likelihood that he was at risk of drowning for that reason. Moreover, given that there was no evidence of Mr. Yeung suffering a seizure while at Tamaracks, Dr. McAuliffe dismissed as remote the possibility that he suffered a seizure on April 22, 2016. Further, Dr. McAuliffe testified that one’s natural instinct in the event of water entering the mouth and nose while asleep, would be to wake up.

[53] Finally, and perhaps most importantly, Dr. McAuliffe acknowledged in his evidence that drowning is a diagnosis of exclusion: there is no specific anatomical finding for drowning. It is premised on excluding other demonstrable causes and combining that with the known circumstances surrounding the death. Dr. McAuliffe arrived at his diagnosis of drowning based to some degree on his understanding of the state in which Mr. Yeung was found. However, as discussed above, his understanding was not fully supported by the record. Moreover, it is not apparent that he was aware of all the circumstances surrounding the death (e.g., the toilet incident). Dr. McAuliffe did not purport to identify the cause of any drowning. Further, a careful reading of his evidence reveals he could neither demonstrate nor eliminate cardiac arrythmia as a cause of death.

[54] In the absence of evidence to demonstrate what may have led to any drowning and given that Dr. McAuliffe could not eliminate cardiac arrythmia as a cause of death, I would hold that the verdict was unreasonable. In these circumstances, there was insufficient evidence to enable a trier of fact, acting reasonably, to conclude that the outcome would not have been any different had the appellant remained in the bathroom throughout Mr. Yeung’s bath.

[55] In my view, this is a type of case that presents a risk of an unreasonable verdict. The legal complexities surrounding the charge of criminal negligence causing death and the circumstances of this case (the credibility challenges surrounding the appellant’s evidence) created a real risk that the jury might reason backwards. In other words, there was a real risk the jury could jump to the conclusion that because Mr. Yeung died in the bathtub, the appellant’s conduct in leaving him alone in the bathtub must have played a significant contributing role in his death.

D. Disposition

[56] Based on the foregoing reasons, I would allow the appeal, set aside the conviction and enter an acquittal.

Released: December 17, 2021 “J.S.” “Janet Simmons J.A.” “I agree. P. Lauwers J.A.” “I agree. G. Pardu J.A.”

Footnotes

[1] In a 2009 note, the appellant recorded observations (Mr. Yeung was shaking badly and appeared lethargic) that the appellant believed at the time may have indicated Mr. Yeung suffered a seizure. When asked about the note, Dr. McAuliffe testified, “shaking and very lethargic doesn’t indicate a seizure per se to me.” However, Dr. McAuliffe also noted that there was reference to anti-convulsant medications suggesting there was a legitimate issue at some stage, albeit eight years previously.

[2] It appears that the appellant reached a central 911 dispatch on placing the 911 call and was transferred to ambulance dispatch after speaking to the initial operator. There were accordingly two exhibits at trial: Exhibit 16, labelled “Kuntz, Kristin: YRP 911 CALL” and Exhibit 17, labelled “Kuntz, Kristin: EMS 911 CALL”.