COURT FILE NO.: CR-17-0062-00
DATE: 2020-12-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. A. Sadler, Mr. T. Jukes, for the Crown
- and -
BRAYDEN BUSHBY
Mr. G. Joseph, Mr. R. Green, for the Accused
HEARD: November 2-5, 2020, at Thunder Bay, Ontario
Justice H. Pierce
Reasons for Judgment
Introduction
[1] Before we begin the judgment, I want to express my sincere condolences to the family and friends of Barbara Kentner. I understand that she is greatly missed. I am truly sorry for your loss.
[2] I would also like to express my thanks to counsel for their thorough and thoughtful preparation of this case. The rule of law is fostered by your advocacy, and the community and I are greatly in your debt.
[3] Mr. Bushby stands charged that on or about January 29, 2017:
(a) he committed aggravated assault on Barbara Kentner contrary to s. 268 of the Criminal Code, and
(b) he committed the manslaughter of Ms. Kentner, contrary to s. 236 of the Criminal Code.
[4] At trial, Mr. Bushby pleaded guilty to the charge of aggravated assault, but not guilty to manslaughter.
[5] Section 268 of the Criminal Code defines aggravated assault as wounding, maiming, disfiguring, or endangering the life of another. By pleading guilty to aggravated assault, Mr. Bushby has admitted that the Crown can prove beyond a reasonable doubt that he intentionally applied force to Ms. Kentner to which she did not consent, and to which he knew she did not consent. While the indictment does not specify the result of his actions, the evidence supports that he wounded her and endangered her life when he did so.
[6] It is not disputed that Ms. Kentner was seriously injured when, in the early morning hours of January 29, 2017, she was struck with a heavy trailer hitch that Mr. Bushby threw at her from a moving car. She was struck in the abdomen with a force that perforated her small bowel.
[7] Ms. Kentner was taken to hospital later that day where she underwent surgery. At the time of her injury, Ms. Kentner was seriously ill with liver disease. She died some five months later.
[8] In this case, the medical evidence refers interchangeably to the terms, “small bowel” and “small intestine”; in fact, they are the same organ.
[9] At trial, the Crown’s principal witness was Dr. Toby Rose, the forensic pathologist who conducted the post mortem on Ms. Kentner.
[10] The defence did not call any evidence.
[11] The Crown submits that it has proven beyond a reasonable doubt that Mr. Bushby committed the unlawful act of throwing a trailer hitch at Ms. Kentner, striking her, and causing her death as defined by law. It therefore submits that a conviction on manslaughter should follow.
[12] The defence argues that:
a) the Crown has not proven, beyond a reasonable doubt, that Mr. Bushby caused Ms. Kentner’s death as defined by law;
b) alternatively, the defence contends that there was an intervening cause that broke the chain of causation, such that, in law, Mr. Bushby was not morally responsible for her death.
The Issues
[13] The court must determine whether Mr. Bushby’s act of striking Ms. Kentner with the trailer hitch was a contributing cause of her death that was not minimal. It must also consider whether there was an intervening cause that broke the chain of causation.
Legal Principles
The Burden and Standard of Proof
[14] The Crown has the burden of proving each essential element of the charge against Mr. Bushby beyond a reasonable doubt. This includes proving beyond a reasonable doubt that striking Ms. Kentner with a trailer hitch was a significant contributing cause of her death.
[15] Proof beyond a reasonable doubt is a high test. It is has been made intentionally high so that individuals charged with offences are not wrongfully convicted. However, the Crown is not required to prove any case to an absolute certainty.
[16] The Supreme Court of Canada discussed the Crown’s burden of proof in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. It held that if there are reasonable inferences other than the guilt of the accused, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt: at para. 35.
[17] The Crown’s proof of an offence must arise from the whole of the evidence, based on reason and common sense, when the evidence or absence of evidence is considered. In Villaroman, the court added that a gap in the evidence may suggest inferences other than guilt, provided those inferences are reasonable when all the evidence, including any lack of evidence, is considered: at para. 36.
[18] The court in Villaroman clarified that while the Crown may need to counter “other reasonable possibilities” inconsistent with guilt, it need not “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused.” In other words, the Crown is not obliged to disprove defence theories based on speculation: at para. 37.
The Offence of Manslaughter
[19] It is helpful to understand the scheme set out in the Criminal Code for defining types of homicide, including manslaughter. These definitions describe what manslaughter is and what it is not. Before I describe the relevant sections of the Criminal Code, I will explain the definitions of some of the terms that are used in these sections.
[20] “Homicide” means causing the death of a person. “Infanticide” refers to a mother causing the death of her newborn. Obviously, we are not concerned with infanticide in this trial.
[21] Not all homicides are culpable in law. The word “culpable” is not defined in the Criminal Code; however, its ordinary definition means “deserving of blame.” If a homicide is not culpable, it is not blameworthy and does not amount to an offence in law.
[22] Section 222 of the Criminal Code states:
- (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
(2) Homicide is culpable or not culpable.
(3) Homicide that is not culpable is not an offence.
(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,
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death, or
(d) by willfully frightening that human being, in the case of a child or sick person.
(6) Notwithstanding anything in this section, a person does not commit homicide within the meaning of this Act by reason only that he causes the death of a human being by procuring, by false evidence, the conviction and death of that human being by sentence of law.
[23] Section 234 of the Criminal Code distinguishes manslaughter from other types of homicides. It states:
- Culpable homicide that is not murder or infanticide is manslaughter.
[24] In this case, the Crown alleges that Mr. Bushby caused the death of Ms. Kentner by an unlawful act: striking her with a trailer hitch.
[25] Whether Mr. Bushby caused Ms. Kentner’s death is the central issue in this trial. In considering whether the Crown has proven beyond a reasonable doubt that he caused her death, the court must consider the factual cause of death, and apply the legal definition for causation.
[26] The mental element or mens rea for manslaughter requires proof that the risk of non-trivial bodily harm is “foreseeable at the time of the dangerous and unlawful acts”: R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at para. 36. As the Maybin case provides a helpful analysis of the issues that arise in this case, I will refer to it at some length.
[27] The facts in Maybin are as follows. One of the accused took exception to the victim touching a pool ball on his table in a bar. He punched the victim in the face and head. The second accused, Maybin’s brother, joined in, but was pulled away from the scene by the bar staff. After the victim had been struck several times without defending himself, he collapsed, face down on the pool table.
[28] Within a minute, the bouncer struck the victim in the back of the head while he was unconscious. The victim died from bleeding in the brain. At trial, the Maybins argued that the blow administered by the bouncer was an intervening act that absolved them from criminal responsibility. The bouncer was acquitted at trial; the Maybin brothers were convicted: at paras. 8 and 12.
[29] In order to determine a factual cause of death, the court must consider the “medical, mechanical or physical” circumstances of how a person died, and how an accused contributed to the death: Maybin, at para. 15.
[30] The Supreme Court of Canada discussed “legal causation” in the leading cases of R. v. Smithers, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506, [1978] 1 S.C.R. 506, R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, and, more recently, in R. v. Maybin, where the standards for legal causation were summarized by Justice Karakatsanis.
[31] At para. 14 of Maybin, the Court described the Smithers test for causation in manslaughter as “a contributing cause of death, outside of the de minimis range.”
[32] In Nette, at para. 71, the Supreme Court clarified the test for causation as “a significant contributing cause.” Justice L’Heureux-Dubé, in para. 2 of her concurring judgment, adopted the definition, “a contributing cause that is not trivial or insignificant.”
[33] Legal causation requires finding that the actions of an accused person are sufficiently tied to the death to make him morally responsible. As Justice Arbour reflected at para. 45 of Nette, it is a fundamental principle of criminal justice that that “the morally innocent should not be punished.”
[34] The Maybin case also considered whether legal responsibility in a manslaughter case was displaced by an intervening act.
[35] The courts have struggled to articulate what is an intervening act that breaks the chain of causation between an accused person’s acts and the death. In each case, the court’s analysis will depend on the facts.
[36] In Maybin, at paras. 26 and 27, the Court approved of two types of causation analyses, depending upon the facts:
a) whether the intervening act was objectively or reasonably foreseeable; or
b) whether the intervening act is an independent factor that severs the chain of causation.
[37] Ultimately, whatever tool the court uses to analyze the evidence, it must decide: “Were the dangerous, unlawful acts of the accused a significant contributing cause of the victim’s death?” (Maybin, at para. 28).
[38] When considering reasonable foreseeability in Maybin, the court held that the time for assessing reasonable foreseeability of an intervening act is at the time of the initial assault. Further, the specific intervening act that in fact occurred need not be reasonably foreseeable: Maybin, at para. 35.
[39] Justice Karakatsanis explained at para. 34:
In my view, the chain of causation should not be broken only because the specific subsequent attack by the bouncer was not reasonably foreseeable. Because the time to assess reasonable foreseeability is at the time of the initial assault, rather than at the time of the intervening act, it is too restrictive to require the precise details of the event to be objectively foreseeable. In some cases, while the general nature of the ensuing acts and the risk of further harm may be reasonably likely, the specific manner in which it could occur may be entirely unpredictable. From the perspective of moral responsibility, it is sufficient if the general nature of the intervening act and the risk of non-trivial harm are objectively foreseeable at the time of the dangerous and unlawful acts.
[40] The second type of causation analysis deals with whether the intervening act by a third party absolves the accused of responsibility for the harm inflicted: Maybin, at para. 46. In other words, are the actions of the accused overtaken by “another party acting independently”? Or does the moral culpability of the accused survive the intervening acts?
[41] At para. 49 of Maybin, the Court framed the question this way:
…did the act of the accused merely set the scene, allowing other circumstances to (coincidentally) intervene, or did the act of the accused trigger or provoke the action of the intervening party?
[42] At para. 50 of Maybin, the Court distinguished between “natural events” and “extraordinary events.” Natural events are more likely to be foreseeable; for example, the incoming tide that causes an injured and unconscious person who was left on the beach to drown.
[43] Where there is an intervening act of an independent third party, “exercising his or her free will,” the court will scrutinize the independence of the actions.
[44] In R. v. Romano, 2017 ONCA 837, 41 C.R. (7th) 305, a police officer was charged with dangerous driving causing death when his speeding vehicle struck a pedestrian in a residential area who was jaywalking to reach her house. At para. 30, Justice Paciocco cautioned that the criminal law does not recognize concepts of contributory negligence, a concept from tort law; nor does it apportion responsibility for harm caused by criminal conduct. He commented that:
…if an accused is already engaged in an unlawful act, the intensity of the causal connection required to furnish moral blame for the consequence can be modest.
[45] The Criminal Code expressly preserves the causal connection between an accused person’s unlawful act and a victim’s death in three specific circumstances.
[46] Section 224 states:
- Where a person, by an act or omission, does any thing that results in the death of a human being, he causes the death of that human being notwithstanding that death from that cause might have been prevented by resorting to proper means.
[47] Section 225 deals with death from the treatment of an injury. It states:
- Where a person causes to a human being a bodily injury that is of itself of a dangerous nature and from which death results, he causes the death of that human being notwithstanding that the immediate cause of death is proper or improper treatment that is applied in good faith.
[48] Finally, s. 226 of the Criminal Code deals with acceleration of death. It states:
- Where a person causes to a human being a bodily injury that results in death, he causes the death of that human being notwithstanding that the effect of the bodily injury is only to accelerate his death from a disease or disorder arising from some other cause.
[49] I am reminded that in evaluating the evidence in this case, the court is not restricted to the medical evidence: R. v. Shanks, 1996 CanLII 2080 (ON CA), 4 C.R. (5th) 79, at para. 11. The case of R. v. M. (W.), 2007 ONCA 720, 87 O.R. (3d) 425, is an object lesson in a wrongful conviction arising from the court’s undue deference to medical experts. The court is not obliged to accept expert medical opinion; as with all evidence, the court may accept all, part, or none of it.
[50] As an example of the court’s obligation to scrutinize expert evidence, the defence cited R. v. Hiller, 2020 ONSC 6097. In Hiller, the court acquitted the accused of manslaughter when the forensic pathologist concluded that the accused applied a headlock to the deceased’s neck during a fight. The deceased suffered a cardiac arrest and died. However, there was no evidence that a headlock had been used. In the absence of that causal connection, the court rejected the pathologist’s conclusion that the cause of death was cardiac arrest caused by a headlock that caused the heart to stop.
[51] The court in Hiller was also critical of the expert’s failure to consider whether extensive resuscitation efforts accounted for the injuries on which he relied to conclude that neck compression caused the cardiac arrest. The court concluded that the Crown had failed to disprove other exculpatory possibilities for death suggested by the evidence.
The Offence
[52] The circumstances leading to Barbara Kentner’s injury are not disputed. In the early morning hours of January 29, 2017, after a day of ice fishing and drinking, Mr. Bushby and his friends were driving around the city, putting in time. One of his friends described Mr. Bushby as rowdy. He threw up twice, feeling the effects of his day-long drinking. He told one of his friends that he wanted to drive around and yell at sex workers.
[53] During the drive, Mr. Bushby spotted a trailer hitch on the ground and jumped out of the car to retrieve it. He said that he wanted to throw it through the window of an acquaintance.
[54] While driving in a residential area after 1:00 a.m. on January 29, 2017, Mr. Bushby eased himself out of the passenger window of the moving car and heaved the trailer hitch at Barbara Kentner, who was walking with her sister, Melissa, along the side of the road. He struck Barbara in her abdomen, with a force that caused her to drop to her knees in pain. The Kentners heard Mr. Bushby say, “Yeah, I got one of them.” One of the occupants of the vehicle heard him laugh.
[55] At the time of this assault, Ms. Kentner suffered from advanced liver disease. She was taken to hospital later that afternoon and underwent emergency surgery to repair a rupture to her small bowel caused by the impact of the trailer hitch.
[56] With the concurrence of Barbara, Melissa reported the attack to police after her surgery. Melissa had picked up the trailer hitch from the road and turned it over to the police.
[57] The police were concerned that the Kentners may have been targeted because they are Indigenous. When Melissa was asked whether she felt that they had been targeted, she replied, “No, just people being stupid.”
[58] Barbara Kentner was discharged from the hospital on February 4, 2017. Her discharge documents warned her to seek medical attention if she experienced increased pain, swelling, fever, nausea, vomiting, or extensive drainage from her wounds.
[59] Ms. Kentner returned to hospital on February 9 or 10, 2017, complaining of abdominal pain and serious drainage coming from her surgical incisions. She remained in the hospital for treatment until March 24, 2017, when she was discharged for end of life care at home. She died on July 4, 2017, aged 34.
The Mental Element
[60] As I have said, when Mr. Bushby pleaded guilty to aggravated assault, he admitted that he intentionally injured Ms. Kentner. In doing so, he acknowledges that he committed an unlawful act.
[61] At trial, the Crown filed transcript evidence from two young people who were present in the car that night and who testified at the preliminary inquiry. The Crown also filed the videotaped statement of Barbara Kentner. Melissa Kentner testified at trial. She was present when her sister was injured and recovered the trailer hitch at the scene.
[62] In this case, I find that the Crown has proven beyond a reasonable doubt that Mr. Bushby committed a dangerous and unlawful act when he hurled a heavy trailer hitch at Ms. Kentner, causing her small bowel to rupture. The injury to her bowel required surgery to repair. It constituted non-trivial bodily harm.
[63] As I have said, the mental element or mens rea for manslaughter requires proof that the risk of non-trivial bodily harm is “foreseeable at the time of the dangerous and unlawful acts:”
[64] After he picked up the hitch, Mr. Bushby expressed to his friend that he wanted to throw it through an acquaintance’s window. He knew that the hitch was heavy enough to cause damage.
[65] We also know from Mr. Bushby’s statement, “I got one of them!” that he was aiming to hit one of the Kentner women with the trailer hitch. This was not a snowball. The hitch, which is in evidence as exhibit 1, is heavy enough that it requires two hands to hold it securely.
[66] I find that it would have been foreseeable to Mr. Bushby that hitting a person with such a heavy object would cause serious injury. Furthermore, the vehicle was moving when he threw the hitch, adding to its force. It was an objectively dangerous act that would have been foreseeable to Mr. Bushby at the time it was thrown. It was also foreseeable that Barbara Kentner would suffer non-trivial bodily harm if she was struck.
[67] Thus, the Crown has proven the mental element of the offence of manslaughter beyond a reasonable doubt. However, that is not the end of the matter. The burden is also on the Crown to prove beyond a reasonable doubt that Mr. Bushby’s unlawful act caused or contributed significantly to Ms. Kentner’s death.
Causation
[68] Dr. Toby Rose is a forensic pathologist. She performed a post-mortem examination of Ms. Kentner on July 7, 2017, three days after her death. The Crown called her to testify about Ms. Kentner’s cause of death.
[69] Dr. Rose has performed more than 6,000 post-mortem examinations. The details of her career are set out in her curriculum vitae, filed as Exhibit 7. At trial, she was qualified to give expert testimony in the specialty of forensic pathology, a field in which she qualified and has practiced since 1997.
[70] Dr. Rose’s conclusions about Ms. Kentner’s cause of death are contained in exhibit 8, which is her report of post-mortem examination. She indicated this was a complicated cause of death statement. Part I of her conclusions identify the immediate cause of death as:
a) bronchopneumonia and acute-on-chronic peritonitis, due to or as a consequence of
b) traumatic rupture of the small intestine, due to or as a consequence of
c) blunt force injury to abdomen.
[71] Part II identifies “other significant conditions contributing to the death but not causally related to the immediate cause (a)” as “end-stage liver disease.”
[72] Dr. Rose described the post-mortem. Ms. Kentner’s body was subjected to a CT scan, then her medical and social history were considered, including information from police or others. Dr. Rose was aware that Ms. Kentner had been struck by a trailer hitch about six months before her death.
[73] Although she had some medical information before the post-mortem, Dr. Rose reviewed Ms. Kentner’s medical records at length after her examination. The reports she viewed as most significant are summarized in exhibit 8.
[74] An external examination of the body was performed, followed by an internal examination, where the internal structures and organs were viewed and tissue samples, photographs, diagrams and descriptions were taken for later review.
[75] These samples were viewed under the microscope. Finally, after considering the medico-legal issues in the case, Dr. Rose wrote her report.
[76] Despite the able representations from the defence, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Bushby’s action in striking Ms. Kentner with the trailer hitch was a contributing cause of her death that is not trivial or insignificant and which accelerated her death.
[77] While there is no burden on the defence to present evidence or to prove anything, I also wish to explain why I have not accepted certain of the defence arguments about causation. My reasons for these conclusions follow.
[78] Dr. Rose testified that Ms. Kentner had a complex medical history. Dr. Davenport’s operative report of January 29, 2017, presents a snapshot of her health preceding her injury.
[79] Before her injury, she was significantly compromised by advanced liver disease. In addition to liver disease, she had a prior medical history of pneumonia and ascites. She had not been taking her medications.
[80] Dr. Rose explained that ascites is an abnormal collection of fluid in the abdominal cavity (also known as the peritoneal cavity), where it becomes the focus for infection. Although she indicated that ascites is a concomitant of liver disease, it can also be caused by cancer or heart failure. Ms. Kentner did not suffer from these other causes.
[81] The defence submitted that Dr. Davenport’s operative note could be admitted only for the purpose of showing what Dr. Rose relied upon to form her opinion and not for any opinion offered by Dr. Davenport. The defence made no other objection to the use of the remaining medical reports filed at trial.
[82] The Crown indicated that it was filing Dr. Davenport’s report to show what he did and what he saw in the operation but not his opinion.
[83] In my view, the steps Dr. Davenport took to obtain Ms. Kentner’s medical history and informed consent prior to surgery form part of the factual matrix of the surgery as they are directly connected to his surgical plan about which Dr. Rose testified. When he obtained her consent, he established her mental status at the time.
[84] Dr. Davenport obtained Ms. Kentner’s informed consent to surgery. He warned her that her underlying liver disease “put her at risk of death, both from the trauma and from an operation.” He also explained to her that patients with liver disease typically will have decompensation, meaning complications following surgery. Dr. Rose also testified about complications she attributed to Ms. Kentner’s injury.
[85] Dr. Davenport’s strategy for Ms. Kentner’s surgery involved using a laparoscopic technique to minimize the incision length and therefore the invasiveness of the surgery. His description of the surgery forms a foundation for the changes in Ms. Kentner’s small bowel that Dr. Rose discovered during her post-mortem.
[86] Ms. Kentner’s small bowel was ruptured by the impact of the trailer hitch. Dr. Davenport’s operative record indicates that Ms. Kentner was started on antibiotics in advance of the surgery. Imaging before surgery showed that she had air outside her gastro-intestinal tract where it did not belong. A laparoscopic incision was made, and the abdominal cavity was suctioned to remove ascites and turbid fluid present. The cavity was washed to remove contaminants and to allow the surgeon a better view of the abdominal structures.
[87] Ms. Kentner’s other abdominal organs were examined and injury ruled out. Then many metres of her small bowel were taken out and examined, hand over hand, to locate the injury. The term for this process is “running the bowel.” The injury site was located and repaired. Two drains were inserted to allow for drainage from the abdominal cavity during Ms. Kentner’s recovery. Next, the area of injury was again washed, and the incision closed. A further course of antibiotics was prescribed.
[88] The discharge information Ms. Kentner was given on February 4 warned her to watch for complications and to seek medical attention if she experienced increased pain, swelling, fever, nausea, vomiting or excessive drainage from the wound. In fact, Ms. Kentner returned to hospital with complications on February 9 and was not discharged until March 24, 2017.
[89] Other medical personnel identified complications from liver disease. Exhibit 20, which is a medical evaluation of Ms. Kentner on March 21, 2017, describes decompensated liver disease as a medical issue.
[90] Dr, Rose described trauma as a damaging physical event that calls on the body to mount an inflammatory response, such as bleeding, infection or other complications, as the body tries to deal with the consequences. She explained that an operation, even though carried out under sterile conditions for the purpose of healing, is also traumatic to the body, and can generate complications. In other words, as Dr. Rose explained, Ms. Kentner could expect to get worse in the aftermath of surgery.
[91] Dr Rose added that a person with severe liver disease, such as Ms. Kentner had, is already compromised in the response her body can make to either trauma or surgery. She commented that patients with ascites and severe liver disease, also called cirrhosis of the liver, are high risk surgical patients.
[92] Dr. Rose explained that the perforation of the small bowel allowed bacteria from the bowel to leak into the abdominal cavity, where it can cause infection. She added that, while bacteria do their task very well when confined to the gastro-intestinal system, they are a source of infection when they escape into the abdominal cavity. She indicated that Dr. Davenport’s description of suctioning turbid fluid from Ms. Kentner’s abdominal cavity shows the spillage of bacteria caused by the injury to the bowel.
[93] One of the immediate causes of Ms. Kentner’s death that Dr. Rose identified was acute-on-chronic-peritonitis.
[94] Dr. Rose explained that the peritoneum is the silk-like membrane that lines the inner abdominal wall and covers the organs of the abdomen. When it becomes inflamed, peritonitis is the result. Peritonitis is usually caused by a bacterial or a fungal infection. She testified that peritonitis can result from several causes, usually involving the introduction of infection into the abdominal cavity. She listed examples such as appendicitis, untreated bowel cancer, a perforated ulcer, or injury to the gastro-intestinal tract. Of these possibilities, only the last cause applies in Ms. Kentner’s case.
[95] Dr. Rose stated that modern medicine has identified two types of peritonitis: bacterial peritonitis, usually associated with an underlying infection, such as a ruptured appendix, and spontaneous bacterial peritonitis. The latter is associated with cirrhosis where ascites is present. She added that there is no means known to medicine to distinguish between the two.
[96] During Ms. Kentner’s post-mortem, Dr. Rose made an unusual observation. She noted two different types of ascites in the abdominal cavity. She said that ascites is a well-known complication of cirrhosis and so she was not surprised to see a clear dark green fluid in Ms. Kentner’s upper abdominal cavity. However, she was surprised to see reddish, murky ascites in the lower cavity, which she attributed to peritonitis. The two types of ascites could not mix because of the barrier in the abdominal cavity caused by fibrous adhesions in the small bowel.
[97] Dr. Rose confirmed inflammation and scarring related to the reddish ascites under microscopic examination.
[98] It was Dr. Rose’s opinion that Ms. Kentner “had serious reason for peritonitis: the traumatic rupture to her small bowel which introduced bacteria into the abdominal cavity.” She commented that even the wash-out performed during surgery could not have removed all the bacteria leaking from the small bowel.
[99] During the post-mortem, Dr. Rose examined Ms. Kentner’s small bowel and made another surprising finding that supported her conclusion that chronic peritonitis was a cause of death. She found that instead of the loops of bowel laying unattached in the abdominal cavity, they were matted together by fibrous adhesions. She was unable to “run the bowel” during the post-mortem as it was one mass of tissue. She testified that the adhesions were a result of the surgery.
[100] It was Dr. Rose’s opinion that Dr. Davenport would not have been able to “run the bowel” as he described during surgery if these adhesions had been present. She added that, if there were adhesions at the time of the surgery, they would not have been as extensive as she found them.
[101] She also commented that she expected Dr. Davenport would have described this unusual condition in his surgical note. I accept her evidence in this regard. I conclude that the mass of fibrous adhesions was a complication that developed after Ms. Kentner’s injury.
[102] Dr. Rose testified that inflammation in the abdominal cavity can cause adhesions. Common causes of adhesions are a previous surgery or infection. Having reviewed Dr. Davenport’s operative note and upon examining the cells from the adhesions under the microscope, she concluded that the fibrous adhesions and scarring developed as a response to an infectious process that had been ongoing for weeks or months, caused by Ms. Kentner’s injury. She also stated that the chronic nature of the infection explained the presence of two types of ascites separated by a barrier of fibrous adhesions that formed a wall of scar tissue over time.
[103] I also accept this conclusion.
[104] Dr. Rose identified bronchopneumonia (or simply pneumonia) as a second immediate cause of death. CT imaging at the post-mortem showed fluid around Ms. Kentner’s lungs. Microscopic examination confirmed congestion and edema or swelling in both lungs.
[105] Dr. Rose indicated that pneumonia is a common pathway to death when individuals are bed-ridden and don’t breathe deeply. Certainly, Ms. Kentner had a history of pneumonia, both before and after her injury.
[106] Dr. Rose observed that because Ms. Kentner’s abdomen was full of fluid and fibrous adhesions that had overtaken her small bowel, her diaphragm was pushed higher in the chest than usual, putting pressure on the lungs so they could not fully inflate. This condition, attributable to infection, and Ms. Kentner’s liver disease made her more susceptible to pneumonia, one of the causes of her death.
[107] Finally, Dr. Rose testified that end-stage liver disease was a significant contributing cause of Ms. Kentner’s death. Examination of her liver during the post-mortem ruled out cancer but confirmed cirrhosis. Although most individuals who die of liver disease are significantly jaundiced, Ms. Kentner was not. However, Dr. Rose agreed that Ms. Kentner’s medical records documented earlier episodes of jaundice.
[108] Dr. Rose testified that complications of the injury to Ms. Kentner’s small bowel, against her pre-existing liver disease, hastened her death. When pressed during cross-examination to say by how much death was hastened, she answered that Ms. Kentner was a very sick woman who would have died as a result of liver disease, but the complications hastened her death. However, she was unable to say by how much.
[109] In my view, the Crown is not required to prove to an absolute certainty what medical science does not know. Medical knowledge, like other forms of knowledge, exists on a continuum. It can say some things with certainty, such as the cause of death from a gun shot to the head. However, there are other areas in which medical knowledge continues to develop. Distinguishing between types of peritonitis is an example. Where medical science cannot account for a triggering event, peritonitis is simply classified as spontaneous.
[110] The defence asked Dr. Rose whether a different pathologist might reach a different conclusion about the cause of death. She agreed that it was possible. In my view, Dr. Rose’s candour does not undermine her conclusion about the cause of Ms. Kentner’s death. The court is being invited to speculate about the evidence a hypothetical pathologist might offer. The Crown is not obliged to disprove a hypothetical for which there is no evidence.
[111] I accept the opinion of Dr. Rose that the complications of blunt force trauma to Ms. Kentner’s small bowel accelerated her death for these reasons.
[112] First, there is a triggering event – the injury – after which Ms. Kentner’s health rapidly declines.
[113] There is a linear connection from the time of the injury to Ms. Kentner’s death during which she was seldom out of hospital, or if at home, was subject to continuing medical care. When compared with her history of hospital treatment between September 3, 2016, and January 29, 2017, summarized by Dr. Rose in her report, it is a very different picture. If hospitalized in the fall of 2016, it is for short periods, and sometimes for problems unrelated to her liver disease.
[114] Second, patients with serious liver disease are known to decline after trauma or surgery. Dr. Davenport warned Ms. Kentner about this. Dr. Rose identified complications arising from the body’s response to trauma and to surgery, which the body experiences as trauma. These complications were flagged for Ms. Kentner on her first discharge from hospital. Ms. Kentner experienced both trauma and surgery. The immediate decline in her health following surgery illustrates the point.
[115] Third, there is evidence that bacteria from the rupture of the small bowel was introduced into Ms. Kentner’s abdominal cavity, providing a potential source of infection immediately and chronically. Other causes for peritonitis were not detected at the post-mortem. The fact that Dr. Rose found infection in the abdominal cavity and a mass of well-established fibrous adhesions in the small bowel supports that infection had been at work for some period of time.
[116] The defence submits that Ms. Kentner made a complete recovery from surgery and that her subsequent attendances at hospital were only caused by her liver disease. In my view, the evidence does not support this theory, which asks the court to ignore the history and significance of trauma and treatment against the backdrop of Ms. Kentner’s serious liver disease.
[117] The defence also submits that Ms. Kentner’s confused and paranoid thinking when she was hospitalized was evidence of declining cognitive function associated with her existing liver disease and not as a result of her injury. This cognitive dysfunction is known as hepatic encephalopathy.
[118] The evidence does not support this theory. In obtaining Ms. Kentner’s informed consent to surgery on January 29, Dr. Davenport determined that she was not encephalopathic and was able to give her informed consent to surgery.
[119] Ms. Kentner was subsequently seen in hospital by a psychiatrist, Dr. Allain, on February 1, 2017, because of anxious and paranoid thoughts and attempts to leave the hospital against medical advice.
[120] In fact, as Dr. Rose testified, Dr. Allain attributed Ms. Kentner’s mental state to other causes and not to liver disease.
[121] Ms. Kentner’s discharge report on February 4 makes no mention of confused and paranoid thinking at that time and does not recommend psychiatric follow-up. There is no further record in Ms. Kentner’s medical reports filed at trial of confused or paranoid thinking or referrals for psychiatric care.
[122] The case at bar is distinguishable from the Hiller case where the Crown failed to disprove other exculpatory possibilities. In this case, there is evidence that the injury to Ms. Kentner was caused by Mr. Bushby striking her with a trailer hitch. We do not need to infer it. There is no gap in the evidence as referred to in the Villaroman case.
[123] For these reasons, I find that the Crown has proven, beyond a reasonable doubt, that Mr. Bushby’s dangerous and unlawful act accelerated and caused Ms. Kentner’s death. However, this conclusion is not the end of the analysis. I must also consider whether there was an intervening act that absolves Mr. Bushby of criminal responsibility.
Intervening Act
[124] The defence argues that, in the alternative, if Mr. Bushby is linked to the evidence establishing Barbara Kentner’s death, there was an intervening act that broke the chain of causation, such that Mr. Bushby cannot be considered responsible in law for her death. Specifically, the defence identifies the delay in Ms. Kentner accessing medical treatment following her injury as an intervening act. As well, the defence points to Ms. Kentner discharging herself from hospital against medical advice.
[125] The defence points to the contradiction in the evidence between Ms. Kentner, in her videotaped statement, and the testimony of her sister, Melissa Kentner, about efforts to get Barbara medical attention after she was struck by the trailer hitch.
[126] Ms. Kentner stated that she wanted to go to the hospital immediately, but her sister advised her to wait until morning.
[127] By contrast, Melissa Kentner testified that Ms. Kentner did not want to go to the hospital that night. Rather, she just wanted to sleep and see how she felt later. Melissa said that by 7:00 a.m. Barbara wanted to go to the hospital. However, she also testified that Barbara was admitted at 10:00 p.m. that evening. She was adamant that Barbara was in serious pain and that she would have called an ambulance if she had agreed to go to hospital.
[128] The defence asked Dr. Rose whether it would be medically significant if Ms. Kentner was not taken to hospital until between 13 and 17 hours after her injury, given that the contents of her small bowel would be leaking into her abdominal cavity. Dr. Rose responded that it would not matter if someone prevented Ms. Kentner from going to hospital or she just did not go.
[129] The evidence of Ms. Kentner suggests that she was not taken to hospital until the afternoon of January 29. She said that she was in surgery within two hours.
[130] The operative report of Dr. Davenport describes being called in to see her on the evening of January 29, 2017. By the time he commenced surgery, Ms. Kentner had already received antibiotics. She was formally admitted to hospital on January 30, presumably after her urgent surgery was completed.
[131] In my view, it is not necessary to reconcile the contradictions in evidence between Barbara Kentner and her sister, Melissa. At the time of the assault, it was reasonably foreseeable that Ms. Kentner might not receive immediate medical attention. She was injured late on a winter night. The sisters were alone and on foot. There were no other individuals in the area whom they could immediately summon for help. Mr. Bushby did not immediately stop to offer assistance or call an ambulance.
[132] As well, there is no evidence that the time taken to access treatment was medically significant; it is simply speculative. Thus, there is no burden on the Crown to disprove this argument.
[133] In reaching this conclusion, I rely on the following evidence. Dr. Davenport’s operative note indicates there is “no necrotic or devitalized tissue” at the injury site. Dr. Rose described the surgeon’s efforts to minimize the surgical risks and to combat infection. She agreed with the defence that the surgery was a success. Ms. Kentner’s only limitation on discharge was limited lifting.
[134] Here, there is no act of another party acting independently that overtakes the injury caused by Mr. Bushby. Nor do notions of contributory negligence apply in criminal law, as Justice Paciocco explained in Romano, at para. 30.
[135] Further, s 224 of the Criminal Code applies in this case. It provides that:
Where a person, by an act or omission, does any thing that results in the death of a human being, he causes the death of that human being notwithstanding that death from that cause might have been prevented by resorting to proper means.
[136] On the facts of this case, “proper means” may be understood to mean securing prompt medical care for Ms. Kentner. In my view, it was entirely foreseeable that she might not get medical attention immediately.
[137] I agree with the Crown’s submission that Mr. Bushby must take his victim as he finds her: poor, in declining health, and sometimes non-compliant with medical care.
[138] Dr. Rose was asked in cross-examination whether complications could arise if a patient was not under constant medical observation, such as when she left the hospital. Dr. Rose agreed that we do not know what happens when a patient leaves the hospital.
[139] In my view, the defence argument suggesting an intervening cause when Ms. Kentner left hospital is also speculative, and not grounded in the evidence. In my view, there is no burden on the Crown to disprove this argument for the following reasons.
[140] The post-mortem report summarizes medical care Ms. Kentner received, actually or inferentially, after her injury until her death as follows:
- January 29 – February 4, 2017: hospitalized;
- February 9 – March 24: hospitalized with recommendation on discharge for palliative care;
- April 8: palliative care note;
- June 14 – 16: hospitalized;
- June 19 – June 27: hospitalized, then transferred to St. Joseph’s Care Group for palliative care;
- June 27 – July 4: hospitalized.
[141] In addition, Ms. Kentner’s videotaped statement was taken by police in her home on April 4, 2017.
[142] The psychiatric consult shows that Ms. Kentner was agitated and attempted to leave hospital on February 1, against medical advice. However, her discharge summary shows that she remained in hospital until February 4. By then, there is no indication on her discharge documents that she was leaving against medical advice. In any event, she returned to hospital on February 9 or 10 because of serious drainage from her laparoscopy incisions (exhibit 11).
[143] I conclude that because Ms. Kentner’s health rapidly declined, there was little time when she was not under medical supervision.
[144] Mr. Bushby is still responsible if he injures a person whose health, social and psychological condition makes it less likely that she will recover. On the facts of this case, I find that the Crown has proven, beyond a reasonable doubt, that there was no intervening act that displaces his responsibility in law for Ms. Kentner’s injury and ensuing death.
Conclusion
[145] For the foregoing reasons, I find that the Crown has proven, beyond a reasonable doubt, that by an unlawful act, Brayden Bushby injured Barbara Kentner, accelerating and causing her death, and further, that the Crown has met its burden to disprove intervening causes.
[146] Therefore, I find Brayden Bushby guilty as charged of the offence of manslaughter.
“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: December 14, 2020
COURT FILE NO.: CR-17-0062-00
DATE: 2020-12-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and –
BRAYDEN BUSHBY
Accused
REASONS FOR JUDGMENT
Pierce J.
Released: December 14, 2020
/lvb