Court File and Parties

COURT FILE NO.: CR-21-0022-00 DATE: 2022-10-11 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

TIMOTHY GUNTER

Counsel: Vicky Bae, for the Crown Oliver Abergel, for the Accused

HEARD: July 25, 27, 28, 29 and August 2, 3, and 4, 2022

REASONS FOR DECISION

HURLEY, J

[1] Judson Gunter died at his home in Bancroft the evening of March 8, 2020, shortly after a physical altercation with his son, the accused Timothy Gunter. Because their surnames are the same, I will refer to them by their first names in this decision.

[2] Timothy is charged with manslaughter, assault causing bodily harm and breach of probation.

[3] The Crown alleges that Timothy assaulted his father on March 8 and the assault caused his death. Timothy was bound by a probation order at the time, one term of which was that he keep the peace and be of good behaviour.

[4] I will begin by outlining the applicable legal principles. Next, I will summarize relevant background facts which are largely undisputed. I will then review the events of March 8. Following that, I will discuss the pathological evidence; it is of particular importance in this case. The final part of my decision will be my analysis of whether the Crown has proven the charges beyond a reasonable doubt.

The applicable legal principles

Manslaughter

[5] The formal charge states:

Timothy Judson Gunter on or about the 8th day of March in the year 2020 at the Town of Bancroft in the said Region, did unlawfully kill Judson Gunter and thereby commit manslaughter contrary to section 236(b) of the Criminal Code of Canada.

[6] S. 222(1) of the Criminal Code states that a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. Ss. (5) provides that a person commits culpable homicide when he causes the death of a human being by means of an unlawful act. Under s. 234, manslaughter is defined as culpable homicide that is not murder or infanticide.

[7] The Crown must prove each of the following essential elements beyond a reasonable doubt:

1. Timothy committed an unlawful act

2. The unlawful act was dangerous in the circumstances; and

3. The unlawful act caused Judson’s death.

[8] The unlawful act alleged in this case is assault causing bodily harm.

[9] With respect to the second essential element, the Crown must establish that a reasonable person in the same circumstances as Timothy would have realized that he was exposing Judson to a risk of bodily harm. Bodily harm, in turn, is any hurt or injury that interferes with a person’s health or comfort and is more than just brief or minor.

[10] For the third, and final, essential element the Crown must prove that Timothy’s unlawful act contributed significantly to his father’s death. A person’s conduct may contribute significantly to another person’s death even though the conduct is not the sole or main cause of death.

[11] 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 act”: R v. Maybin, 2012 SCC 24 at para. 36. The Crown does not have to prove objective foreseeability of the risk of death: R v. Creighton, 1993 CanLII 61 (SCC).

[12] A central issue in this case is causation. It has two components: one is factual, the other legal.

[13] In order to determine the factual cause of death, I consider the “medical, mechanical or physical” circumstances of how Judson died, and how Timothy contributed to the death. I must ask myself the question: But for the actions of Timothy, would the death have occurred? (Maybin at para.15). What is required is proof that the accused’s acts were a significant contributing cause of death: Maybin at paras 5 and 14; R v. Nette, 2001 SCC 78 at para. 71. As Watt, J. A. stated in R v. McDonald, 2017 ONCA 568 at para. 152: “Not the only cause. Or even the most probable cause. But a significant contributing cause.”

[14] Anyone accused of culpable homicide must take the victim as they find them. There may be several contributing causes of death. A significant contributing cause can be something that exacerbates an existing fatal or potentially fatal condition, thereby accelerating death: McDonald at paras. 139 and 153.

[15] Legal causation requires finding that the actions of an accused person are sufficiently tied to the death to make him morally responsible. It is a fundamental principle of criminal justice that “the morally innocent should not be punished”: Maybin at para. 16 and Nette at para. 83. This has been described as a “narrowing concept” which “filters a wider range of factual causes into a residuum of those sufficiently connected with the harm caused – the death of another person – to warrant assignment of criminal responsibility for having caused that death”: McDonald at para. 138.

[16] I do not engage in a two-part analysis of causation. Rather, I decide, on the basis of all the evidence, whether the Crown has proven beyond a reasonable doubt that it was the accused who caused the death of the deceased. I am not restricted to the medical opinion about the cause: R v. Shanks, 1996 CanLII 2080 (ON CA).

Assault causing bodily harm

[17] The formal charge reads:

Timothy Judson Gunter on or about the 8th day of March in the year 2020 at the Town of Bancroft in the said Region, did in committing an assault upon Judson Gunter cause bodily harm to him contrary to section 267(b) of the Criminal Code of Canada.

[18] The Crown must prove each of the following essential elements beyond a reasonable doubt:

1. Timothy intentionally applied force to Judson

2. Judson did not consent to the force that Timothy applied

3. Timothy knew that Judson did not consent to the force that he applied; and

4. Timothy caused bodily harm to Judson.

[19] There is no dispute that there was a physical altercation between Timothy and his father. The main issues are whether it was a consensual scuffle and if consent was vitiated in the circumstances. Consent is vitiated only when the accused intended to cause serious bodily harm and he caused serious bodily harm: R v. McDonald, 2012 ONCA 379 at para. 28.

[20] Timothy did not testify. I bear in mind the direction of Blair, J. A. in R. v. B.D., 2011 ONCA 51 at para. 114:

What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused’s guilt. In that event, they must acquit.

[21] I will come back to some of the legal principles in the analysis stage of my reasons.

Background

[22] Timothy lived with his father at 51 Faraday Street in Bancroft. Judson was 70 years old in 2020; Timothy, 42.

[23] His mother, Karen Gunter, also lived in Bancroft but did not have a close relationship with Timothy. Karen and Judson had separated when Timothy was a child.

[24] Although their marriage ended many years ago, Karen described Judson as her “best friend” and had continued to have regular contact with him.

[25] Karen testified that Timothy had a substance use disorder and suffered from mental illness. His condition worsened in the period 2018 – 2020. She was aware that he received some form of medical treatment for his condition but did not know the details of it.

[26] Judson told her about Timothy’s ongoing paranoid behaviour which included staying up all night and auditory and visual hallucinations. According to Judson, Timothy damaged property at the home and was verbally, but not physically, abusive towards him.

[27] She had spoken to Judson about Timothy’s behaviour and thought that he should tell Timothy to leave the home. However, she described Judson as “torn” over doing that because he loved his son.

[28] She knew that Judson had suffered a heart attack in 1997 and took medication for his heart condition but she did not know what it was. She did not observe him to have any symptoms related to his heart but she remained concerned about his cardiac health. In the year before his death, she accompanied him to some medical appointments but these were for a urinary tract condition.

[29] Another family member, Joseph Gunter, testified about the relationship between Timothy and his father.

[30] Judson was Joseph’s paternal uncle. They spent a lot of time together, especially in the winter months when both were laid off from their employment. Joseph lived nearby and said that he would either see or talk to Judson on a daily basis.

[31] Joseph had little contact with Timothy but Judson told him about Timothy’s erratic behaviour which Joseph thought was due both to his drug use and mental illness. Judson had told him about Timothy staying up all night and damaging things at the house.

[32] Joseph testified that he contacted the police after Judson told him about some sort of altercation with Timothy at the house, saying that he had threatened to burn the house down and was in a “crazy state”. Joseph said this call took place a week before Joseph’s death but also indicated it was on Saturday, March 7.

[33] Judson had never complained to Joseph that Timothy had assaulted him but did say he was scared about living at the house. Joseph claimed that Judson felt like he was a hostage in his own home but was unsure if Judson had actually used the word “hostage”. It was not clear to me if Joseph was recalling an actual conversation he had with Judson or just his perception of how Judson felt about his living situation. Joseph believed that Judson was reluctant to tell his son to leave because Timothy had no other place to go. In Joseph’s words, Judson “did not want to kick him to the curb.”

[34] Joseph was aware that Judson had suffered a heart attack in 1997 but did not know what medical treatment he had received or anything about his medication. He was not asked, nor did he say, whether Judson exhibited any symptoms consistent with heart disease such as shortness of breath, fatigue or a lack of physical stamina.

The uttering threats conviction in 2019

[35] On May 28, 2019, Timothy pleaded guilty to uttering threats to cause bodily harm to Judson in the Ontario Court of Justice at Bancroft. The transcript of his plea and sentencing was entered as an exhibit.

[36] The offence date was April 5, 2019. On that date, Timothy was at home with his father and, according to the Crown, “probably under the influence of substances”. Timothy approached his father, with his fists clenched, stating that he was going to “punch him out”. Judson went to his room and Timothy followed him, continuing to say that he was going to punch him out. Judson contacted the police and, before they arrived, Timothy fled from the house. Two days later, Timothy called his father and told him that he was going to “dig a hole and put him in it”. Judson interpreted this to be a threat to kill him.

[37] Justice Knott imposed a six day jail sentence on top of Timothy’s pre-sentence custody which was assessed at 24 days. He allowed him to serve the sentence intermittently because Timothy had, at the time, employment in the construction field.

[38] He also placed him on probation for 12 months, the terms of which included to keep the peace and be of good behaviour; not to contact his father or attend at his residence except with his written revocable consent; and participate in counselling for substance abuse.

[39] The next day, Judson filed a consent with the Bancroft probation office, allowing Timothy to contact him and return home. Timothy did and remained living at the house until March 8, 2020.

The police involvement with Judson and Timothy in 2020.

[40] Officers with the Bancroft detachment of the Ontario Provincial Police testified about three occasions in 2020 on which they attended 51 Faraday Road in response to complaints about Timothy’s behaviour.

[41] The police were dispatched to the residence on February 1 at about 8:30 p.m. after receiving a call from Karen Gunter. She reported that Timothy and Judson were arguing.

[42] Constable Philip Regeamy testified that, when he arrived, Timothy was gathering up some personal belongings, preparing to leave the house. He subsequently did so.

[43] Judson told Constable Regeamy that he wanted Timothy out of the house. He did not allege that Timothy had done anything criminal in nature. The officer was aware of Timothy’s probation order and spoke to Judson about a trespass notice. Judson told him that he did not want any criminal charges laid against his son nor was he interested in a trespass notice. He did not appear fearful of Timothy.

[44] The police next attended the house on March 1 shortly after 9 p.m. This time, Judson had called them to complain that Timothy was pulling out the phone lines, had been drinking and had possibly consumed drugs. He said that he would call them back if Timothy became violent.

[45] The police decided to attend at the residence. When Constable Kyle Storey arrived a little after 9:30 p.m., he spoke to Judson who told him that Timothy had not been violent but had been consuming alcohol and drugs that week.

[46] Constable Storey arrested Timothy for breach of the peace. He described him as agitated. Timothy did not want to leave the house or go to jail. He was lodged at the detachment that evening and released in the morning.

[47] The police returned to the house the next evening at around 8:30 p.m. Judson had called the police to report that Timothy was yelling at him and had damaged some curtains and a light. He thought that his son was under the influence of drugs. He told the police that nothing physical had occurred between them.

[48] When Constable Storey arrived that night, Judson told him that Timothy was downstairs. The officer told Judson that the police could remove him from the house again and charge him with mischief. Judson said that he did not want any criminal charges laid and declined to provide a statement. Another officer then reported to Constable Storey that Timothy had fled from the house, leaving by the basement exit.

[49] On all three occasions, the officers did not observe Judson to be in any physical distress nor did he have any injuries.

The recorded conversations between Timothy and Judson

[50] Judson’s phone contained recorded conversations between Timothy and him. The police were able to identify the date of these conversations and ones that took place on February 16, February 26, March 1 and March 2, 2020 were introduced at trial. It is not known why Judson made these recordings. Apparently, there were many but only four were adduced in evidence at trial.

[51] It was the Crown’s position that these conversations, which were in substance arguments, showed Timothy’s animus towards his father and were particularly relevant because of their temporal proximity to March 8.

[52] During them, Timothy threatened to harm his father, repeatedly saying that he was going to punch him out. He seems to be angry and hostile towards his father for no ostensible reason. He often insults Judson, usually in profane terms. Timothy does most of the talking. Judson’s responses are generally short and it appears that he is trying to placate Timothy at various times during these conversations.

[53] Timothy also refers to his father’s heart condition twice on February 16.

[54] There is this exchange:

Judson: Why, what were you going to do?

Timothy: I wasn’t going to do nothing. I just said what I said, didn’t I. What, the words that come out of your mouth, fucking near killed you. And if they didn’t, they should. Now if you want to have a heart attack tonight or do you want to live through the night. Because this right here’s going to cause you a heart attack. Do you want me to get che… Jody to come and tec tuck you in? See I stuttered on that. I slurred my words and everything else. Do you want me to get her to come tuck you in? You say them words to.

[55] Later in the conversation, they say to each other:

Judson: Are you going to carry on like this all night?

Timothy: Who else could do it…. yes, I am. I already told you that. You going to have a heart attack, good. I ask you what means more, money or me. If it was me shake my fucking hand, if it’s not put money in it.

The testimony of Dr. Joseph Campbell

[56] Dr. Joseph Campbell was Judson’s treating cardiologist. He had taken over his care in 2004. He testified that Judson had not undergone surgery after his heart attack in 1997 and that his condition had been conservatively managed with medication.

[57] Judson’s function improved substantially with this treatment. He remained asymptomatic which can be the case even for people who have severe coronary disease. Judson did not have any angina but had periodic shortness of breath which could have been due to his heavy smoking.

[58] Most of the medication Dr. Campbell prescribed was for hypertension and hyperlipidemia. He saw Judson on an annual basis, primarily because Judson had a commercial driver’s license and the Ministry of Transportation required a yearly assessment of his cardiac condition.

[59] Dr. Campbell testified that Judson’s condition had not changed over the years that he treated him. He considered him fit for employment as a truck driver.

[60] He last examined Judson on January 28, 2020. In a consultation note to Judson’s family physician he reported:

I had the pleasure of seeing Mr. Gunter in follow-up in the cardiology clinic on January 28. He is a delightful sixty-nine year-old gentleman who I am following with coronary disease. He presented in 1997 with an acute anterior infarct. He received lytic therapy at that time. His perfusion study did not reveal much in the way of ischemia and he was managed medically. Thankfully, he has had no recurrence of angina. His ventricular function has been known to be fairly well-preserved with only a small apical wall abnormality.

[61] In discussing his current medical history, Dr. Campbell wrote:

He tells me that since his last visit he has been doing well at least from a cardiac perspective. He denies any symptoms to suggest angina. He has had no congestive symptoms or respiratory complaints. He denies palpitations, lightheadedness, syncope, or symptoms to suggest a TIA or stroke.

[62] Dr. Campbell conducted a physical examination. Judson also underwent an electrocardiogram and echocardiogram on that date. Dr. Campbell concluded:

Mr. Gunter has stable coronary disease. He remains essentially asymptomatic since his last visit more than a year ago. His echocardiogram today shows fairly preserved ventricular function. He has a small apical wall motion abnormality. Overall, the findings are unchanged in comparison to a study from last year. His medical treatment is excellent. He does have a commercial driver’s license. He is certainly medically fit to drive commercially. I have not made any medical adjustments today. I will see him back in the office next year for repeat assessment.

[63] Dr. Campbell’s evidence was limited to his treatment of Judson but I permitted him to answer some general questions about cardiac disease. He explained that with a sudden cardiac event, the mode of death is usually arrhythmia. It can happen even without symptoms. With people who have severe underlying coronary disease, physical pain or stress can lead to arrhythmia and he gave examples of what could precipitate this – a treadmill test at his office and a routine physical activity like shoveling snow.

The events of March 8, 2020

[64] Timothy had friends over during the day. Three of them, Ashley Rallison, Jason Stone and Elwood Ostroskie arrived at about 11:00 a.m. Ms. Rallison spoke to Judson outside the house for about a half hour. He seemed to be in a good mood; they joked and laughed together. After they finished talking, Judson left in his truck.

[65] The group sat around and talked for a few hours. Ms. Rallison went to buy more beer at some point in the afternoon. She and Mr. Stone, who was her boyfriend, left the house around 7 p.m. She estimated that Timothy drank 8 beers while they were there. He was not intoxicated but she could tell that he had “a buzz on”. She did not see Timothy take any drugs. She thought he was in a good mood. Mr. Stone’s evidence was to the same effect. Neither of them recalled seeing Judson again before they left the house.

[66] Two more friends, Sandra Randall and Trevor Conlin, came to the house between 2:30 and 3 p.m. They stayed for a little over an hour. Ms. Randall had known Timothy for many years and was formerly in a romantic relationship with him. He did not appear to be under the influence of alcohol or drugs when she saw him that day. She also thought he was in a good mood. Mr. Conlin’s evidence was similar to hers.

[67] Joseph saw Judson that day when he stopped by his house around noon. They spoke for about 10 minutes. They texted each other later that afternoon and in the evening. Joseph thought he looked fine but appeared a little tired. They did not talk about Timothy or anything that was going on at the house. Karen also exchanged texts with Judson that afternoon.

[68] Mr. Ostroskie stayed at the house after the others left. He is a few years younger than Timothy but has known him for over 20 years. Mr. Ostroskie has a long criminal record which spans the period 1998-2022. He was in custody at the time he testified. He acknowledged that he consumed alcohol throughout the day and probably had taken cocaine and methamphetamine that morning.

[69] He recalled that Judson had returned home in the afternoon when the others were present. He did not say how long Judson stayed and nothing of substance happened when he was there. He did not remember the exact time when Judson came back but it was still daylight and only he and Timothy were at the house.

[70] The house is a small bungalow. On the main floor, there is living room, kitchen and, down a short hallway, two bedrooms and a bathroom. The front entrance opens into the kitchen area. There is a basement with a separate entrance.

[71] Soon after Judson came home, he and Timothy started to argue. Both raised their voices. Mr. Ostroskie could not remember what they said to each other but recalled that Judson was upset because Timothy had invited people to the house.

[72] They were arguing in the kitchen area for a period of time. Mr. Ostroskie testified that he was in the adjacent living room when this was going on. At some point, he turned and saw them holding each other by the shirt, with their hands near each other’s necks. Judson’s back was against a wall, by an open closet. Mr. Ostroskie did not see who started the physical altercation; that is, he did not see who grabbed who first. It appeared to be a mutual struggle, which each was equally participating in, the two of them pushing and shoving each other. He did not hear anything which would indicate who was the aggressor.

[73] During this scuffle, Judson ended up in the closet. Mr. Ostroskie could not tell whether that was due to Judson tripping or Timothy pushing him. During his examination-in-chief, Mr. Ostroskie said that Judson “kind of fell into the closet”.

[74] Soon after this happened, Mr. Ostroskie told them to stop it and they immediately let go of each other. It was not clear to me from his testimony who let go first. He initially testified that Timothy let go first but his evidence shifted both during his examination-in-chief and cross-examination. What he was certain about was the duration of it – the scuffle was over quickly and ended by mutual agreement.

[75] Neither of them appeared hurt in any way. According to Mr. Ostroskie, both “looked fine”. He testified that Judson was red in the face but that was his normal complexion.

[76] After they let go of each other, they stayed in the kitchen area. Judson lit a cigarette. Mr. Ostroskie was unsure if Judson got the cigarette from his own pocket or if Timothy gave it to him. Judson and Timothy continued to “bicker” with each other. Judson went down the hallway towards his bedroom. Mr. Ostroskie did not see him go into the bedroom but soon after he returned to the kitchen, still smoking the cigarette. He did not appear to be in any physical distress nor did he complain of any pain. He then walked back down the hallway towards his bedroom.

[77] In chief, Mr. Ostroskie claimed that Timothy followed Judson down the hallway. He agreed in cross-examination that he told the police on March 9 that Timothy did not go down the hallway and acknowledged that statement to be true.

[78] Mr. Ostroskie also acknowledged that, in his testimony at the preliminary inquiry, he said that Judson told him not to interfere when he first tried to intervene during the altercation between Timothy and Judson. There was this exchange:

Q. Okay. What, what I’m trying, all I’m trying to figure, I’m trying to get into Jud’s frame of mind, okay? So you not having touched anybody, you’re watching though what’s going on, and my only point was, and you haven’t, don’t do anything wrong up until this point other than try to help, you come up to see if you can separate them, correct?

A. Yes

Q. Okay. And it’s at that point, not having touched anyone, that Judd tells you get out of here or mind your own business or something like that?

A. Something like that, yes.

Q. Okay. That’s all I’m saying. I’m not saying you’re responsible for anything. I’m saying that when you try to separate them, it’s, in fact, Judd that says he doesn’t need any help from you, right?

A. Essentially, yes.

[79] Mr. Ostroskie agreed at trial that Judson said words to this effect when he asked them to stop it and, in his view, Judson did not want any assistance from him.

[80] Mr. Ostroskie testified that the police arrived about 15-20 minutes after the scuffle ended. He did not know that Judson had called them. He said that Timothy went downstairs when the police arrived.

The 911 call

[81] Judson called 911 at 8:56 p.m. The call was 3 minutes, 37 seconds long but Judson only spoke to the operator briefly. Their conversation was as follows:

Operator: Ontario Provincial Police where is your emergency?

Judson: I need the police at 51 Faraday Street, right away quick because I’m being held hostage.

Operator: Okay, 51 Faraday

Judson: Street Bancroft, Ontario. Tim Gunter has been throwing me around and everything else

Operator: Okay

Judson: I need them here quick. I can’t even get out of the house. I just wrecked my glasses and everything.

Operator: And where’s he?

Judson: He’s inside the door right now.

Operator: And who is he to you?

Judson: I got my shirt ripped

Operator: Who’s he to you?

Judson: Pardon?

Operator: Who is he to you?

Judson: My son

Operator: Okay

Judson: You better get the cops here quick cause I just got in the bedroom. I’m passing out right now.

[82] Those were Judson’s last words. His breathing can be heard. There are muffled voices and a person states “Judd, get the fuck off the floor” and “Tim, come here you fucker”. The parties agreed that those words were spoken by Mr. Ostroskie. Then, the voice of Sgt. Brian Goodwin is heard.

The police investigation

[83] Sgt. Goodwin arrived at the house at 9:04 p.m. Mr. Ostroskie greeted him at the front door. He told him that Judson was in his bedroom and Timothy was in the basement. The officer immediately went to the bedroom and found Judson face down on the floor. He rolled him over and started resuscitation efforts. The paramedics arrived within a few minutes and took over. Judson was transported by ambulance to the Bancroft hospital and pronounced dead at 9:42 p.m.

[84] Timothy was not in the basement. The parties filed an Agreed Statement of Facts about Timothy’s flight from the house and apprehension by the police several hours later. He left the house without a jacket. He showed up at a nearby residence at about 11 p.m. with only socks on. The homeowner allowed him to call Ms. Randall. She had, by that time, learned about Judson’s death. She testified that when she told Timothy his father had died, he seemed surprised by this news.

[85] He left this house and went to another one close by. The homeowner called the police and he left. At around 4:25 a.m., the police found Timothy hiding under the porch at another house. He was arrested and taken to the Bancroft hospital because he complained that his feet were frostbitten. After being seen at the hospital, he was transported to the detachment and interviewed by the investigating officer after speaking with a lawyer.

[86] Two forensic identification officers testified. Most of their evidence consisted of the photographs which they took of the interior and exterior of the house. Nothing appears disturbed in the kitchen area. Judson’s bedroom was in significant disarray but this was likely the result of the paramedics moving things around during their treatment of him.

[87] The police did not seize any clothing or other items from the house. They did not find a torn shirt.

The pathologist’s evidence

[88] Dr. Jeffrey Tanguay, a forensic pathologist, conducted the postmortem examination on March 11. He determined that the cause of death was atherosclerotic heart disease. His examination of the heart revealed that the coronary arteries showed severe atherosclerotic disease with greater than 90% occlusion of several vessels. There was no evidence of an acute myocardial infarct but there was extensive scarring of the left ventricle, indicative of one or more previous myocardial infarcts.

[89] He stated at paragraphs 10 and 11 of his report, under the heading “Summary and Opinion”:

The nature and severity of the heart disease identified would have significantly increased the risk of ventricular arrhythmia and sudden cardiac death at any time. In the context of this increased susceptibility for arrhythmia, any pathophysiological stressor that results in increased heart rate or blood pressure such as increased physical exertion, pain, or significant psychosocial/emotional distress could further exacerbate the underlying heart condition by placing increased demands on an already diseased heart, and therefore potentially increase the risk of a fatal cardiac arrhythmia.

[90] He identified several blunt force injuries which he described in his testimony as “very minor and superficial” and said they were unrelated to the cause of death. He opined that a small abrasion on Judson’s left eyebrow was a “terminal collapse type injury” which commonly happens when a person falls face forward during a sudden cardiac arrest. He testified that he could not date them with any degree of certainty but some appeared recent. They did not appear to be inflicted injuries. He described Judson’s breathing on the 911 call as “agonal”, which is a type of breathing that occurs when a person is near death.

[91] In his examination-in-chief, in response to a hypothetical question that accurately summarized the evidence about the physical struggle and his findings in the postmortem examination, he testified:

Q. To use the terminology from paragraph 11 of your report the term “pathophysiological stressors”, could the situation described in the hypothetical scenario give rise to such “pathophysiological stressors?

A. They may have.

Q. Okay. Could these stressors have increased blood pressure?

A. They may have.

Q. Could these stressors have exacerbated an underlying heart condition by placing increased demands on an already diseased heart?

A. They may have.

Q. And could these stressors potentially increase the risk of a fatal cardiac arrhythmia?

A. Yes; it’s possible.

Q And again; going back to the descriptor that had been used in your report at paragraph 10, could these stressors have contributed significantly to the resulting death?

A. They may have contributed to the resulting death

[92] There was also this exchange:

Q. So, in the context of the hypothetical person that we have just heard about; could the resulting increase in heart rate or blood pressure be significant enough to strain his heart?

A. Well, considering that the person with the same disease could die in their sleep, I think that’s why I said earlier that the – you know – the external stressors could range from very mild to severe – anything is possible. You know – these people with this disease – amount of disease we find – are found deceased in bed not uncommonly so… it’s very hard to say”.

[93] In cross-examination, Dr. Tanguay agreed with the following propositions that were put to him:

i. Due the severity of his coronary disease, Judson could have died at any time, for no ascertainable reason, including in his sleep.

ii. It was equally possible that the physical struggle between Timothy and Judson had nothing to do with his death.

iii.He could not say that the struggle and death were probably connected.

iv. The temporal proximity between the struggle and Judson’s death does not necessarily mean they were connected.

v. Even if the minor injuries were caused by the physical struggle, he could not say if they increased Judson’s stress or blood pressure. It is possible they did.

vi. A pathophysiological stressor that occurred hours before could have been the actual cause of the fatal cardiac event instead of the physical struggle.

[94] The cross-examination concluded with these questions and answers:

Q. Okay. But anything – the reason why you have to say things are possible is because even the most minor emotional stressor, in this case, could’ve been enough to – to hasten his death?

A. It’s – It’s possible. It’s really hard to say for sure.

Q. Okay. And when we talk about stresses that are operating earlier in the day for example; ahh – it could well have been a stress that occurred let’s say two hours before that was the actual cause and not anything that occurred during the shoving match?

A. It’s possible. Ahh – yeah.

Q. And again; when you’re answering – I mean my question and my friend’s question about possible – we’re not into the realm of, “well, Mr. Abergel – anything is – anything is possible”. We’re talking about reasonable medical possibilities?

A. Yes; that’s true.

Q. Yeah. And you said it was possible to my friend that various stressors could add on to each other; correct?

A. Yes.

Q. It’s also possible that they didn’t?

A. Yes.

Q. Okay. In this case Doctor; at the end of the day, while you can say various things are possible, you have a man with advanced heart disease that – that dropped dead essentially of a heart attack; correct?

A. Yes.

Q. Someone who you had said, regardless of any stress, was a ticking time bomb and that could’ve happened at any moment regardless?

A. Yes.

Q. And at the end of the day in terms of medical knowledge, we’re left with saying, “well, it’s possible – ahh – that an argument or a shoving match hastened death – possible”?

A. That’s correct.

Q. It’s certainly not probable?

A. That’s true. It’s …

Q. In the male – so, while it’s possible, it’s also possible it had nothing to do with the death?

A. It’s possible.

Analysis

[95] I will deal first with the charge of manslaughter.

[96] The Crown submits, correctly, that I am not restricted to the medical evidence. Further, as the trier of fact, I do not have to accept an expert opinion. I may give the opinion as much or as little weight as I see fit.

[97] In Shanks, the Court dismissed an appeal from a conviction for manslaughter but allowed the sentence appeal, reducing the jail sentence from six years to two years less a day. In that case, the accused attacked the victim, a neighbour, who he knew to be in poor health because of prior strokes, believing that the victim’s cat had harmed his. The accused threatened the victim and they had a brief physical struggle in which the accused grabbed the victim around the waist and threw him over his shoulder to the ground. The trial judge concluded that the accused had assaulted the victim in doing so.

[98] Unknown to the accused, the victim suffered from severe coronary disease. A pathologist and cardiologist concluded that the victim had suffered a rupture of the plaque buildup in his right coronary artery which in turn caused a clot that blocked the flow of blood to his heart, causing his death. Both experts opined that the clot occurred within 6 to 8 hours of the victim’s death. The assault had happened around 9:30 p.m. and the victim was pronounced dead at a local hospital a little after 11:30 p.m. The trial judge accepted the evidence of the cardiologist and found that the assault probably caused the plaque rupture. He concluded that, based on the totality of the evidence, including the experts’ opinions, the plaque rupture occurred during or immediately after the assault and that led directly to the victim’s sudden cardiac death.

[99] On appeal, the accused argued that the medical evidence should have raised a reasonable doubt on the issue of causation. In upholding the trial judge’s decision, Finlayson, J.A. stated at p. 5:

Causation is a question for the trier of fact, and in making the determination triers of fact are not restricted to the medical opinions tendered before them: Smithers v. The Queen, supra at p. 435. The trial judge was entitled to find that the physical assault was the proximate cause of death. He gave a cogent summary of the evidence that led him to this conclusion. Furthermore, even if such a remedy was available to us, I do not think it would assist the appellant for this court to substitute the trial judge's finding with a conclusion that, in all probability, the events immediately prior to the actual assault would have been sufficient to trigger the plaque rupture that resulted in death. Spurrell was alive for a short time after the physical assault. It would remain a medical fact that the continuum of events from the initial threats by the appellant to his throwing of the deceased to the ground was, as a matter of certainty, the cause of death. In these circumstances, any analysis of the medical evidence directed to establishing that death was virtually inevitable at a given point in the continuum is academic and unhelpful to the determination of whether the unlawful conduct of the appellant was the proximate cause of death.

[100] As Shanks makes clear, causation is fact-driven and, while I am not restricted to the medical evidence, it is something that I must consider, along with all the other evidence, in deciding whether the Crown has proven this element of the offence beyond a reasonable doubt.

[101] At the outset of his report, Dr. Tanguay acknowledged that his overriding duty was to the court. This means that his opinion, and his testimony, must be fair, objective and non-partisan. I find that he fulfilled this obligation. He was an impressive witness who gave deliberative answers, in both examination-in-chief and cross-examination.

[102] I begin with his testimony in chief. He was careful to couch his responses to the key questions about pathophysiological stressors in terms of their “possible” effect or that they “may have” been a factor.

[103] When he was asked about the cumulative impact of them, he said they may have contributed to Judson’s death and did not, as the Crown invited him to, state that they contributed significantly to his death. I interpreted his response to mean that they were not a significant contributing cause which is the applicable legal standard.

[104] He did not change his opinion in any substantial way during cross-examination but the difficulty in coming to any definitive conclusion was highlighted. Because medical science rarely allows an expert to express a judgment with absolute certainty, it is not uncommon for an expert to admit that there were other possible causes for a person’s condition, including what caused their death. But that is not what Dr. Tanguay said. Rather, he agreed that it was equally possible that Timothy’s actions had nothing to do with his father’s death.

[105] It could be argued, as a matter of common sense, that the physical struggle must have been a significant contributing factor because of the relatively brief gap in time between it and Judson’s death. However, I must bear in mind the important distinction between correlation and cause, particularly when considering a medical outcome. In any event, the temporal proximity is but one factor I need to consider. There are other circumstances – the brevity of the altercation, the nature of it and Judson’s apparent condition after it ended – that would militate against a finding that the struggle was a significant contributing cause to his death.

[106] A probable or likely cause is not enough. I must be sure. I find, on the totality of the evidence, that the Crown has failed to prove beyond a reasonable doubt that the alleged unlawful act, whether it was a common assault or assault causing bodily harm, caused Judson’s death.

[107] This finding is dispositive of the manslaughter charge. As I will explain, I also have a reasonable doubt on the charge of assault causing bodily harm and the included offence of assault and this too would lead to an acquittal on the manslaughter charge. I will now turn to my reasons for this conclusion.

[108] The defence submits that the Crown failed to prove that Judson did not consent to the application of force by Timothy. Although Dr. Tanguay noted some injuries, consent cannot be nullified unless there is both intent to cause serious bodily harm and serious bodily harm was caused and I should have a reasonable doubt on these two issues.

[109] There are problems with Mr. Ostroskie’s credibility and the reliability of his testimony given his lengthy criminal record, which includes convictions for many crimes of dishonesty, and his admitted consumption of alcohol and drugs on March 8. However, with the exception of the statements made by Judson during the 911 call, there is no other direct evidence of what took place between Timothy and Judson on March 8.

[110] I found Mr. Ostroskie credible in the sense that he was trying, for the most part, to give a truthful account of what he saw and heard. There was some evidence which confirmed his version of events; in particular, about the duration and nature of the physical struggle between Timothy and Judson. For example, the condition of the kitchen area would indicate that the altercation was such that it did not result in anything being disturbed in the immediate area. Judson’s injuries were consistent with an altercation that was limited to pushing and shoving. Mr. Ostroskie did not appear to have a bias in favour of either Timothy or Judson.

[111] At the same time, I do not believe he was being truthful when he said that he remained in the kitchen area. I can infer, from the 911 recording, that he went to Judson’s bedroom and saw him lying on the floor.

[112] Judson’s statements to the dispatcher also suggest a more vigorous altercation than the brief tussle described by Mr. Ostroskie. I recognize the need for caution in drawing any firm conclusion from what Judson said in this call. He was, understandably, very upset at Timothy. His reference to Timothy “throwing me around” may have been only his perception of what happened rather than an accurate description. There was also no torn shirt observed by the paramedics or police officers nor was one seized at the scene.

[113] Although I have some reservations about Mr. Ostroskie’s testimony, I accept what he said about the duration and nature of the altercation. It was, as I just stated, consistent with some of the circumstantial evidence. I also note that he gave two statements to the police and testified at the preliminary inquiry, and it appears his trial evidence aligned with what he said on prior occasions.

[114] But his testimony alone does not answer the question I have to decide: Did the Crown prove beyond a reasonable doubt that Judson did not consent to this physical altercation?

[115] Mr. Ostroskie’s evidence does not support the Crown’s case because he could not say who initiated the altercation or who was the aggressor. It appeared to him that it ended with the parties’ mutual agreement to stop at least the physical contact. According to Mr. Ostroskie, Judson did not want any help from him. This may have been because Judson did not like Mr. Ostroskie but it also indicates Judson wanted to continue the altercation.

[116] The injuries, assuming some are attributable to the altercation, are not determinative. Dr. Tanguay said they were minor and superficial. Based on my review of the photographs, I agree with his description of them. It is difficult to determine, with any degree of certainty which of the injuries were connected to the altercation. The one injury that appeared quite recent, which was the laceration on his arm, may have been the result of the paramedics’ treatment of him at the house.

[117] The recorded conversations and the police attendances at the house evinced Timothy’s abiding hostility towards his father in 2020. Timothy’s attitude and conduct were disturbing. His father was providing him with food and shelter and tolerated his erratic behaviour. Instead of being grateful, Timothy repeatedly threatened him with violence and was verbally abusive.

[118] However troubling this behaviour may have been, there is no evidence that it escalated to physical violence. Although Judson expressed reluctance to evict Timothy or pursue a criminal complaint against him, I am satisfied that, if there had been any assaults in 2020, he would have told his family and the police. This does not mean that an assault did not happen on March 8, 2020 but I do not consider the evidence of animus so compelling that it establishes Timothy’s desire to physically harm Judson.

[119] I am certain that a physical altercation took place. It is likely that Timothy was the aggressor. Still, the Crown has the burden of proving the absence of consent. Judson suffered from severe coronary disease but was asymptomatic and it did not seem to affect his ability to fully participate in daily activities or maintain gainful employment. It could be that Judson was fed up with Timothy’s truculence and there was a consensual, brief struggle which ended by mutual agreement. Considering the totality of the evidence, I find that the Crown has not proven beyond a reasonable doubt that it was a nonconsensual scuffle. Nor has it proven that Timothy intended to cause serious bodily harm and that he caused serious bodily harm.

[120] The Crown submitted that I could still find Timothy guilty of breach of probation even if I found him not guilty of manslaughter and assault causing bodily harm because his conduct constituted a breach of the term to keep the peace and be of good behaviour. I respectfully disagree. A conviction for breach of probation would be contingent on finding him guilty of one or both of these offences.

Disposition

[121] For these reasons, I find Timothy not guilty of all charges.

[122] I wish to add a final comment. Based on the evidence I heard at this trial, Judson Gunter was a good man. He gave his son shelter and support when nobody else could, or would. He could have pursued criminal charges against Timothy or permanently ousted him from his home but he was unwilling to do so because, as his nephew Joseph put it, he would not kick Timothy to the curb. His selfless commitment to his child came at significant personal cost. Timothy suffers from mental illness and substance abuse. Both are treatable. I hope that he seeks out that treatment and makes the same commitment to it as his father made to him. I also hope he recognizes his role in this tragedy and remembers what his father did for him and why.

HURLEY, J

Released: October 11, 2022