Overview

[1] At approximately 11:35 a.m. on January 20, 2020, 89-year-old Xiaoxia Wang was walking northbound on the east sidewalk of Yonge Street, just north of King Street when she was pushed forcefully from behind to the ground. Unable to brace her fall, Ms. Wang’s face and head hit the pavement with significant force. The impact of the fall caused her head to snap backwards, which resulted in a significant fracture to vertebrae in her spine. The fractured bones of her vertebrae then damaged a vital part of her spinal cord. She died almost instantly.

[2] The accused Mr. Cunneen was located later that day and arrested.

[3] There is no dispute that Mr. Cunneen is the person who caused Ms. Wang to fall to the pavement by impacting her from behind. There is also no dispute that the fatal neck injuries were caused by the impact from Ms. Wang’s head and face hitting the pavement when she fell, causing her head to snap backwards. Dr. Michael Pollanen, Chief Forensic Pathologist of the Ontario Forensic Pathology Service was qualified as an expert in forensic pathology in this case, specifically as it relates to the cause of death, nature of the injuries, and the mechanism of injuries.[^1] He conducted a post-mortem examination of Ms. Wang. He provided an opinion that Ms. Wang’s cause of death was “hyperextension neck trauma due to blunt force facial trauma” causing the vertebrae of the neck to fracture in many places and those fractured bones in turn causing spinal cord damage resulting in brain damage and sudden death. On a post-mortem examination, Dr. Pollanen noted Ms. Wang was in good health at the time of her death. Other than some hearing loss (Ms. Wang wore a hearing aid) and some mild neurological changes consistent with aging, Dr. Pollanen testified that based on his examination, Ms. Wang was in “remarkably good health” for someone who was 89 years old.

[4] The Crown’s primary position is that Mr. Cunneen is guilty of unlawful act manslaughter under s. 222(5)(a) of the Criminal Code in that he committed the unlawful act of assault (pushing Ms. Wang with significant force from behind while running at top speed) which caused the injuries resulting in her death. The main issue in dispute is whether, in impacting Ms. Wang from behind, Mr. Cunneen intended to apply force to her. Mr. Cunneen’s position is that the contact was accidental and the result of Ms. Wang cutting in front of him unexpectedly as he ran at full speed up Yonge Street.

[5] In the alternative, the Crown submits that Mr. Cunneen is guilty of manslaughter in causing Ms. Wang’s death by criminal negligence pursuant to s. 222(5)(b) of the Criminal Code in showing wanton and reckless disregard for the life and safety of Ms. Wang and others (s. 219(1)(a) of the Criminal Code). The accused disputes that his act of running at full speed up Yonge Street constitutes wanton and reckless disregard for others.

[6] For the reasons to follow, I am satisfied beyond a reasonable doubt that the Crown has proven all elements of the offence of unlawful act manslaughter and Mr. Cunneen is guilty of this offence. In the circumstances, it is unnecessary for me to assess the Crown’s alternate theory of manslaughter by criminal negligence.

The Evidence

[7] The Crown called several witnesses and assembled a video compilation from various surveillance cameras from businesses in the area, introduced through the evidence of Detective Constable Kim Troung. Mr. Cunneen’s movements shortly before the incident, at the time of the incident, and after the incident were captured in surveillance. As will be discussed, the footage is not continuous and, as it relates to the incident of contact, is brief.

[8] The Crown also filed Agreed Statements of Fact and called several police and civilian witnesses.

Mr. Cunneen’s Activities Before the Incident

[9] Much of Mr. Cunneen’s movements before the fatal incident on Yonge Street were captured in surveillance videos. At approximately 11:30 a.m., Mr. Cunneen was in the area of Church and Front Streets. At approximately 11:32 a.m., he approached and opened the door of a Subway Restaurant at 34 Church Street. He can be seen speaking to the clerk from the open doorway while holding a brick behind his back in his hand.

[10] Sneh Patel, the clerk in the Subway Restaurant, testified that Mr. Cunneen asked her what she was selling and the closing time of the restaurant. She testified that she thought Mr. Cunneen’s question about what she was selling was strange, given the ubiquity of Subway restaurants. After she answered Mr. Cunneen’s questions, she turned her back to the door and heard a loud sound. She turned to see that the exterior windowpane of the restaurant was broken. She called the owner of the restaurant, who instructed her to call 911.

[11] Video surveillance captured Mr. Cunneen, after retreating from the doorway, throw the brick he was holding at the exterior window of the Subway Restaurant then walking away. He appeared to be shouting and gesturing as he began walking westbound on Colbourne Street.

[12] At the close of the Crown’s case, Mr. Cunneen admitted his guilt on the charge of mischief, arising from the incident at the Subway Restaurant.

[13] Shortly thereafter, at approximately 11:33 a.m., Mr. Cunneen approached a Toronto Police Parking Enforcement vehicle which was stopped on the north side of Colbourne Street. Community Liaison Officer Bradley Bentley testified that he was seated in the driver’s seat of the parking enforcement car making notes. The rear driver’s side door of the car opened and he observed Mr. Cunneen standing at the open rear door. Officer Bentley immediately jumped out of the car and instructed Mr. Cunneen not to touch police property. He testified that Mr. Cunneen stated something about “getting to court” or asking the officer for a ride. He was told again not to touch police property. Mr. Cunneen then proceeded on his way on foot.

[14] Officer Bentley testified that Mr. Cunneen seemed erratic and was speaking in a jumbled manner, making reference to court which he found incomprehensible. He testified that Mr. Cunneen did not acknowledge him when he told him to get away from the car and simply walked away westbound on Colborne Street toward Yonge Street.

[15] From Yonge and Colborne Streets, Mr. Cunneen began walking northbound on Yonge Street to King Street. It was on the east side of Yonge Street, north of King Street, where the incident occurred.

[16] There were no eyewitnesses to Mr. Cunneen pushing Ms. Wang to the ground. Surveillance video collected from a Starbucks coffee shop on the northwest corner of King and Yonge Streets captured the incident from a distance. Surveillance video from inside a Hero Burger Restaurant on the east side of Yonge Street captured the incident from a closer vantage point.

[17] At approximately 11:36 a.m., Ms. Wang is captured on video surveillance walking westbound on King Street toward Yonge Street. Video surveillance captured Ms. Wang travelling northbound on Yonge Street, crossing King Street on the east side. As she reached the northeast corner of Yonge and King Streets, Mr. Cunneen can be seen arriving at the southeast corner of Yonge and King Streets, walking briskly. He continued walking briskly as he crossed King Street. I accept the evidence of Detective Constable Troung, which was not challenged on cross-examination, that Ms. Wang was approximately 35 metres in front of Mr. Cunneen at this point.

[18] Just after Mr. Cunneen completed crossing King Street, he began running northbound on the east sidewalk of Yonge Street, closing the gap between him and Ms. Wang. The video surveillance captures that a small number of people, likely two people, were standing in front of the Sleep Country store on Yonge Street, between King Street and Adelaide Street and immediately south of the Hero Burger Restaurant. When Ms. Wang was almost directly in front of the Hero Burger Restaurant, north of the Sleep Country, Mr. Cunneen extended both of his arms in front of him, contacting Ms. Wang on her back and sending her face-first down to the pavement. He then proceeded to go over her body and continue running northbound on Yonge Street.

[19] Thomas Mallerman was walking southbound on the east sidewalk of Yonge Street when he saw a man running toward him at what he described as a “full sprint”. He glanced back at the man running then continued walking southbound. He then observed a woman face down on the sidewalk almost directly in front of the Hero Burger. He did not see how this woman (Ms. Wang) came to be lying on the pavement. He called 911 and went to the woman to assist. She appeared to be unresponsive and was bleeding heavily from the face and head area. He followed the 911 operator’s instructions to get clean cloths, as there was significant bleeding. When he returned from getting cloths from the Hero Burger, the paramedics were on scene.

[20] Alexandra Connor was walking on the west side of Yonge Street when she noticed a commotion on the east sidewalk of Yonge Street. She observed people standing around, yelling, and a person face down on the sidewalk. She crossed the street. She tried to communicate with the woman but did not receive any responses. She felt the woman’s back for any signs of breathing, but detected nothing. She observed blood pooling around the woman’s head.

[21] Police Constable Alexander Brown, an officer of 9 years’ experience, arrived at the scene of Yonge and King Streets shortly after the incident. Ms. Wang was still on the pavement being attended to by emergency personnel. In an Agreed Statement of Fact, it was acknowledged that PC Brown identified a woman on the scene who gave a KGB statement several days after the incident indicating that she saw a man running and then a woman on the ground, but that she did not know how the woman came to be on the ground.

[22] Based on the location of the incident and information obtained via radio dispatch of the suspect’s description, Police Constable Brown attended the offices of Deloitte at 22 Adelaide Street to review their security footage. He identified a man in the footage as matching the description of a white male, in his 40s, with a red beard, dressed in dark clothing. He took a photo of the video surveillance monitor and circulated the photo to Detective Sergeant Kolowolski for wider distribution to the various officers and units assisting in the investigation.

[23] Police Constable Minchin, then on the force for 4 ½ years, arrived on the scene at approximately 12:45 p.m. After assisting in determining the identity of the deceased and in taping off a larger crime scene perimeter, she began directing pedestrian traffic. At approximately 2:00 p.m., she observed a male who appeared to match the description of the suspect. The male, now known to be Mr. Cunneen, was walking northbound on the west side of Yonge Street. She observed Mr. Cunneen remove a winter toque from a passing pedestrian’s head as he walked. Police Constable Minchin began to follow Mr. Cunneen northbound on Yonge Street, traveling on the east sidewalk. She elected to call Police Constable Brown directly on his personal cell phone to advise that she was pursuing a male who matched the description of the suspect. She testified that the police radios were very busy with information being relayed by numerous units that attended to assist and she felt Police Constable Brown was in a position to assist her quickly as she knew he was in the area with a scout car.

[24] As she approached the corner of Yonge and Richmond Streets, she crossed Yonge Street to approach Mr. Cunneen. Mr. Cunneen was, at that time, standing at the southwest corner of Yonge and Richmond Streets and appeared to be waiting for her to approach. He can be seen on video surveillance saying something inaudible to PC Minchin as she approached. He then can be heard directing PC Minchin to put her hands in her pockets and uttering something about being “taken to court” and the officer being a “tough guy”. When Police Constable Minchin directed Mr. Cunneen to keep his hands in his pockets, he said no and proceeded to walk north on Yonge Street, then continued to walk westbound on Richmond Street. At this point, Police Constable Brown arrived on Richmond Street and activated an emergency horn. Mr. Cunneen began to run. Police Constable Minchin began running after him.

[25] As Mr. Cunneen attempted to cross over Richmond Street to the south side of the street, he ran across the path of Police Constable Brown’s scout car and was hit, but he continued to run. Police Constable Minchin was able to stop Mr. Cunneen on the south sidewalk of Richmond Street. PC Brown then assisted in bringing him to the ground and placing handcuffs on him. Numerous other officers arrived on scene to assist.

The Law

[26] Mr. Cunneen is presumed innocent of the charges. He started the trial with the presumption of innocence and the Crown carries the burden of displacing the presumption with evidence that establishes proof beyond a reasonable doubt that he committed the offences: R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 27.

[27] A reasonable doubt is not a far-fetched or frivolous doubt. It is not based on sympathy or prejudice against anyone. It is a doubt based on reason and common sense and one that logically flows from the evidence or the lack of evidence. Likely or probable guilt is not enough to meet the standard of proof beyond a reasonable doubt. The standard is much closer to a certainty. However, it is nearly impossible to prove something to an absolute certainty.

[28] Because Mr. Cunneen testified, in determining whether the Crown has proved the allegations beyond a reasonable doubt, I must apply the principles set out in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. First, if I believe Mr. Cunneen’s evidence, I must acquit. Second, if I do not believe his testimony, but I am left in reasonable doubt by it, I must acquit. Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced of the accused’s guilt beyond a reasonable doubt.

[29] In assessing whether or not to believe Mr. Cunneen’s evidence, I do not consider his evidence in isolation, as though the Crown had led no evidence. Rather, I must assess the accused’s evidence in light of all of the evidence. As the Court of Appeal for Ontario stated in R. v. Hoohing, 2007 ONCA 577, 74 W.C.B. (2d) 676, at para. 15:

The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses’ evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt.

[30] Further, the Crown’s evidence of Mr. Cunneen’s intention in making contact with Ms. Wang calls for the Court to draw inferences from the evidence. In other words, the Crown relies primarily on circumstantial evidence to prove this element of the offence. The Court of Appeal for Ontario summarized the proper approach to circumstantial evidence in R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at paras. 36-37:

When the Crown’s case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 20.

To determine if the circumstantial evidence meets the required standard of proof, the trier of fact must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 81-82; R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, at pp. 360-61; Côté v. The King (1941), 1941 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76. [Emphasis added.]

See also R. v. Uhrig, 2012 ONCA 470, at para. 13; R. v. Hudson, 2021 ONCA 772, 158 O.R. (3d) 589, at para. 70.

[31] As noted in Villaroman, at para. 30, where proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, a trier of fact must be careful about too readily drawing inferences of guilt. An inference of guilt drawn from circumstantial evidence should be the only reasonable inference that the evidence permits. The mischief of inference-drawing from circumstantial evidence arises where the trier of fact may conclude prematurely that an accused is guilty without considering whether there are “reasonable alternative inferences”.

Unlawful Act Manslaughter

[32] I turn first to the elements of unlawful act manslaughter.

[33] Section 222 of the Criminal Code provides:

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

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

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

(a) by means of an unlawful act;

[34] Section 234 of the Code states:

Culpable homicide that is not murder or infanticide is manslaughter.

[35] The actus reus of unlawful act manslaughter requires the Crown to prove beyond a reasonable doubt that the accused committed an unlawful act and that the unlawful act caused death: R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3, at pp. 42-43; R. v. DeSousa, 1992 80 (SCC), [1992] 2 S.C.R. 944, at pp. 959 and 961-62.

[36] The mens rea of unlawful act manslaughter is objective foreseeability of bodily harm that is neither trivial nor transitory, coupled with the mens reas for the predicate offence (i.e., the unlawful act).

[37] The unlawful act alleged in this case is an assault. To prove the accused committed an assault, the Crown must prove all of the elements of assault beyond a reasonable doubt:

That Mr. Cunneen applied force to Ms. Wang;
That Mr. Cunneen intentionally applied force;
That Ms. Wang did not consent to the force that Mr. Cunneen used; and
That Mr. Cunneen knew that Ms. Wang did not consent to the force that was applied.

[38] The only element of the offence of assault which is contested in this case is whether Mr. Cunneen intentionally applied force to Ms. Wang. If Mr. Cunneen intentionally applied force to Ms. Wang, there can be no dispute, based on the evidence of the circumstances of the contact, that the other elements of the offence of assault are made out.

[39] The accused’s position is that the contact with Ms. Wang was accidental, arising from a reflexive reaction to Ms. Wang turning into his path abruptly and unexpectedly as he ran up Yonge Street at full speed.

[40] “Accident” can involve an unintended act, or an unintended consequence, or both: R. v. Mathisen, 2008 ONCA 747, 239 C.C.C. (3d) 63, at para. 95. The Supreme Court explained in R. v. Barton, 2019 SCC 33, 435 D.L.R. (4th) 191, at paras. 186-191, that the term “accident”, in the criminal law context, is used to signal one or both of the following: (1) that the act in question was involuntary (i.e., non-volitional), thereby negating the actus reus of the offence; or (2) that the accused did not have the requisite mens rea (see R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 48; R. v. Mathisen, 2008 ONCA 747, 239 C.C.C. (3d) 63, at paras. 70 and 95; R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, at paras. 106-8; R. v. Primeau, 2017 QCCA 1394, 41 C.R. (7th) 22, at paras. 24-25).

[41] As the Supreme Court explained in R. v. George, 1960 45 (SCC), [1960] S.C.R. 871, the word “intentional” means “not done by accident or through honest mistake”. The mental element of assault, defined as “intentionally” in s. 265(1)(a) of the Code, includes recklessness: R. v. D.J.W., 2011 BCCA 522, 282 C.C.C. (3d) 352; R. v. Dawydiuk, 2010 BCCA 162, 253 C.C.C. (3d) 493. Recklessness involves knowledge of a danger of risk and persistence in a course of conduct which creates risk that the prohibited result will occur: Sansregret v. The Queen, 1985 79 (SCC), [1985] 1 S.C.R. 570.

[42] As I understand the defence position, Mr. Cunneen’s position is that he acted without volition in that he extended his arms out as a reflex to Ms. Wang stepping in front of him, negating the actus reus of the offence of assault and further, that he did not have the requisite mens rea for the offence because he did not see Ms. Wang and had no intent to exert force on her.

[43] In order for Mr. Cunneen to be convicted of unlawful act manslaughter, his act of pushing Ms. Wang must have been intentional. In this case, Mr. Cunneen’s defence is that he did not intend the act of pushing Ms. Wang and the corresponding consequence of exerting force on her without her consent and further, that the prohibited consequence, that is bodily harm that was neither trivial nor transitory, was in those circumstances, not objectively foreseeable.

[44] As with all defences, there is no burden on the accused to prove the collision happened accidentally. Provided there is an air of reality to the defence of accident (and I accept, taking Mr. Cunneen’s evidence at its highest, that there is an air of reality to the defence), it is for the Crown to prove beyond a reasonable doubt that the incident was not an accident.

[45] I will now turn to Mr. Cunneen’s evidence and the evidence the Crown relies upon to prove beyond a reasonable doubt the unlawful act of assault.

The Evidence of Mr. Cunneen

[46] Mr. Cunneen testified that on the day in question, he was having a difficult day. He was feeling stressed out. He testified that he had years of experience as a runner. He had experience as a sprinter and could run very fast. He stated that, at his best, he could run a 100m dash in under 10 seconds.

[47] He testified that because he was feeling stressed and running helped with his stress, he decided he would sprint up Yonge Street from King Street to Adelaide Street. In cross-examination, he testified that this block of Yonge Street seemed to be clear and would allow him to have his quick sprint. However, he also testified that there were people with bags standing in front of the Sleep Country store, on the eastern or inside part of the sidewalk, who were moving their feet and bags and interfering with his clear path up Yonge Street. Mr. Cunneen testified that he was able to avoid these people as he sprinted past.

[48] He testified that he did not see Ms. Wang until after he passed the people in front of the Sleep Country. Ms. Wang, who was north of him, suddenly veered abruptly into his path. In cross-examination, he expanded that Ms. Wang was further west on the side of the sidewalk, closer to the street, when she veered inward, toward the right or eastern side of the sidewalk. He described her movement as “very abrupt” and that Ms. Wang turned at a sharp angle which he described as a “90-degree” angle, putting herself directly in his path. He testified that at the speed he was running, there was no way to avoid her and it was too late to stop or change his trajectory to the left or right by the time he saw her in his path. He testified that he put his hands up as a reflex to avoid falling upon colliding with Ms. Wang.

[49] In cross-examination, he acknowledged that Ms. Wang was walking relatively deliberately and slowly. He also described that he perceived her to be “wandering” and “disoriented” and that he thought she was lonely.

[50] When asked why he did not stop after Ms. Wang was knocked to the ground, Mr. Cunneen testified that he kept running because he thought Ms. Wang was probably hurt given the speed at which he was running when he contacted her and the fact that she was of small stature and he was much bigger than her. He testified that he was fearful that paramedics and police would arrive and he would get in trouble. He testified that he could not recall if he saw Ms. Wang fall but believed he would have heard her fall. However, he also accepted that he stumbled a bit over Ms. Wang’s body once she was on the ground, but regained his balance and kept running up Yonge Street. He accepted that he did not look back to see what had happened or ascertain Ms. Wang’s status. He testified that he felt the situation was out of his control and there was nothing he could do to help Ms. Wang.

[51] In cross-examination, Mr. Cunneen testified that he was traveling at top running speed when he collided with Ms. Wang. He stated that as a high school sprinter, he could reach a speed of 9.83 secs/100m in a 100m dash and that he was running at near top speed during the incident. He acknowledged that he was attempting to sprint the block from Yonge and King Streets to Yonge and Adelaide Streets and that he may have had his head down as he started the sprint. However, he disputed that running up Yonge Street at top speed was a reckless action to take.

[52] Having carefully considered Mr. Cunneen’s evidence in the context of the rest of the evidence, I find his evidence about how the collision occurred to be internally inconsistent and inconsistent with the video evidence. While Mr. Cunneen testified in a straightforward manner, in that he maintained his narrative that he could not avoid Ms. Wang because she cut in front of him, I have serious concerns about the reliability, and in some instances the credibility, of his evidence. I do not accept his evidence that Ms. Wang veered in front of him, nor do I accept his evidence that he pushed Ms. Wang as a reflex to her sudden movement. I do not accept his evidence that the contact was accidental.

[53] First, Mr. Cunneen gave inconsistent evidence about the manner in which he says Ms. Wang was walking. At points in his evidence, he described Ms. Wang as turning abruptly, turning at a 90-degree angle, and turning sharply at the point of contact. However, he also testified in cross-examination that she was “wandering”. He also accepted, in watching segments of Ms. Wang walking before and at the time of the collision immediately before contact, that she was walking “normally”.

[54] He was also inconsistent in his evidence about which direction Ms. Wang veered when the collision occurred. In examination in chief, he testified that she moved to the right, toward the buildings on the east side of Yonge Street, but in cross-examination, he testified that he could not recall whether she moved to the left or the right to veer into his path. Later in his cross-examination, he returned to his original evidence that Ms. Wang veered to the right and denied stating that he did not recall which direction she veered, only that he did not know on which side of her body he had made impact. I find that Mr. Cunneen was asked, in two successive questions on cross-examination, which direction Ms. Wang veered and he answered both times that he did not know. There was no question asked of him concerning which side of Ms. Wang he contacted when the collision occurred.

[55] Further, and importantly, Mr. Cunneen’s evidence about Ms. Wang’s movements leading up to the collision are not supported by the video surveillance evidence. I acknowledge, first and foremost, that the video surveillance evidence has limitations. The relevant footage of Ms. Wang’s movements as she made her way up Yonge Street is brief. Moreover, the moment of impact is captured only very briefly and offers only a brief view of Ms. Wang’s movements at the time of the collision. In the case of the Starbucks surveillance footage, the images of the incident are at a considerable distance. However, I find based on my review of the video surveillance that for the entirety of the footage of Ms. Wang walking along King Street and then making her way up Yonge Street, she walked in a slow and deliberate manner. The video surveillance does not support Mr. Cunneen’s evidence that Ms. Wang was “wandering” or “disoriented” as he testified. Her gait as she walked along King Street appears to have been very similar to her gait as she walked up Yonge Street – slow, deliberate, and relatively straight.

[56] More importantly, there is no evidence whatsoever to support Mr. Cunneen’s evidence that Ms. Wang made a sharp turn inward, putting herself into his path. While the footage from the Hero Burger restaurant capturing the contact is brief, it captures Ms. Wang walking in the same slow, deliberate manner she had been walking throughout her path along Yonge Street. She does not make any sudden movements.

[57] When viewed in the context of the surveillance footage, Mr. Cunneen’s recollection of Ms. Wang making an abrupt movement into his path is not borne out and I do not accept it.

[58] Second, Mr. Cunneen’s evidence that he did not see Ms. Wang on the sidewalk until it was too late is not credible. On his own evidence, the only people in front of him on the sidewalk were the 1-2 people in front of the Sleep Country store and Ms. Wang. He testified on both examination in chief and cross-examination that he saw the people in front of the Sleep Country. In cross-examination, he acknowledged seeing the people in front of the Sleep Country before he started to run. He also testified that this group was on the inside or eastern side of the sidewalk and Ms. Wang was further north walking closer to the road, further west than the people with the shopping bags. It is inconceivable that Mr. Cunneen would have seen the people in front of the Sleep Country but not see Ms. Wang. On his evidence, he would have had an unobstructed view of her, as she was walking by herself, slightly north of the group and closer to the roadway.

[59] Third, I do not accept Mr. Cunneen’s evidence that he could not avoid a collision with Ms. Wang. As I have already found, I do not accept that she veered abruptly, or at all, into his path. But even if Ms. Wang had deviated, to some degree, from her path, I find based on the video surveillance that there was space and time for Mr. Cunneen to avoid her. There was distance between Ms. Wang and the people in front of the Sleep Country, both in terms of north and south as well as east and west on the sidewalk. Looking at the Starbucks surveillance video, I find that at the time of the collision, Ms. Wang was several feet ahead of the people standing at the Sleep Country and, as noted above, was walking closer to the centre (or slightly west of centre) on the sidewalk. Mr. Cunneen could have adjusted his trajectory and passed by Ms. Wang on the right, or east of where she was walking, even if he was running at a high speed.

[60] Further, there was room to the left of Ms. Wang as well. Ms. Addie, on behalf of Mr. Cunneen, asserts that given the angles of the cameras, it is difficult to assess the depth of the sidewalk. While it is true, as Detective Constable Troung accepted, that the video surveillance offers only a two-dimensional view of the street, in my view, the Hero Burger surveillance footage provides clear evidence of where on the sidewalk Mr. Cunneen collided with Ms. Wang. What can be seen in the Hero Burger surveillance is that there is metal grating on the westernmost portion of the sidewalk, occupying a quarter or a third of the sidewalk in the area in front of the Hero Burger restaurant. At the time of the collision, the feet of both Ms. Wang and Mr. Cunneen were on the pavement and not touching the metal grating. There was, therefore, the width of the grating on the westernmost side of the sidewalk for Mr. Cunneen to run around Ms. Wang.

[61] Fourth, Mr. Cunneen’s evidence that he did not see Ms. Wang fall but may have heard it is implausible and raises questions about the reliability of his memory. The video surveillance not only captures Ms. Wang falling directly in front of Mr. Cunneen immediately upon being pushed, but also captures Mr. Cunneen’s stumbling over her body before steadying himself and continuing his run. I find Mr. Cunneen knew Ms. Wang had fallen as a result of his push because he had to stumble or step over her to continue on his way.

[62] Fifth, I find that Mr. Cunneen’s lack of hesitation after he knocked Ms. Wang down to be relevant to his state of mind at the time. There is uncontroverted evidence that Mr. Cunneen, after stumbling slightly, continued running at full speed up Yonge Street. Mr. Cunneen’s decision to continue to run, in and of itself, may not provide evidence about his state of mind at the time of the push. However, his lack of hesitation once the collision occurred, including his failure to pause or slow down or look back to assess the situation and what happened to Ms. Wang, or show any hesitation in his movement is, in my view, relevant to assessing the credibility and reliability of Mr. Cunneen’s evidence that the contact was accidental. As the Supreme Court of Canada held in R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 64-70, as a matter of logic and human experience, one would expect a person is more likely to show some outward sign, such as hesitation, before continuing on with their actions, when they have done something accidentally than when they do something on purpose. In my view, Mr. Cunneen’s lack of hesitation, showing no outward manifestation that his actions had accidentally caused a serious fall, is inconsistent with the defence theory that the contact was unintended, accidental, or reflexive.

[63] Finally, Mr. Cunneen’s own evidence was that he was feeling stressed when he began his run and that he felt “frustrated” by Ms. Wang getting into his path. In cross-examination, in testifying about his actions after Ms. Wang went to the ground, he stated, “I may have heard it (referring to the fall). As I was regaining my feet, I might have heard something but my instinct told me to keep running because I knew she was hurt. In my frustration with her cutting into my path, it led me to keep on going, I guess.”

[64] For these reasons, I do not accept Mr. Cunneen’s evidence about how and why the collision happened.

[65] I turn now to the evidence I do accept and additional findings I have made about the circumstances of the collision. Some I have already addressed in reviewing Mr. Cunneen’s evidence. First, I have found as a fact that Ms. Wang, throughout her walk along King Street and then north on Yonge Street, maintained a slow, deliberate, and steady pace and gait (see video surveillance compilation, Exhibit 12, timestamp 7:22-8:34). I find there is no evidence of Ms. Wang veering or turning at the time that Mr. Cunneen collided with her. Second, I find based on the totality of the evidence that the only reasonable inference to draw from all of the evidence is that Ms. Wang was visible to Mr. Cunneen when he started running up Yonge Street and that she was essentially directly in front of him when he raised his arms and knocked her over. Mr. Cunneen acknowledged seeing the people in front of the Sleep Country before he started running and that Ms. Wang was the only other person on the sidewalk. There is no evidence to suggest that she was in any way obscured from Mr. Cunneen’s line of sight.

[66] Third, while the footage of the actual contact is brief, the video footage of Mr. Cunneen approaching Ms. Wang from behind shows that Mr. Cunneen went from a brisk walk suddenly to a sprint when he was a short distance behind Ms. Wang. As the gap between them closed, his two hands contacted Ms. Wang on her upper back, knocking her over.

[67] This action must be understood in the context of the rest of the evidence, including my findings that there was room to the left and right of Ms. Wang for Mr. Cunneen to go around, Mr. Cunneen must have seen Ms. Wang as he made his way up the Yonge Street sidewalk, and Ms. Wang did not veer or turn abruptly, as Mr. Cunneen suggested. Further, this action of raising his arms must be considered in the context of Mr. Cunneen’s evidence that he was having a bad day. That was his evidence and is supported by the evidence of his conduct in the time immediately preceding the contact, including breaking a window at the Subway Restaurant. He was stressed, and at this particular point, he was using the run to try to alleviate the stress he was feeling. I accept his evidence about how he was feeling at this time. I find that Mr. Cunneen was frustrated, as he said, by Ms. Wang. He may have perceived Ms. Wang to be in his way, but not because she veered abruptly. She was in his way simply because she was walking in the centre or just west of centre on the sidewalk, impeding his clear passage.

[68] On the totality of the evidence, I am satisfied that Mr. Cunneen, in running up at a fast pace behind Ms. Wang and raising his arms, did not do so as a reflex to Ms. Wang’s sudden movement, but as a deliberate act. The actus reus of assault is established. I am also satisfied that Mr. Cunneen was aware of the circumstances. I find, as to the mens rea for assault, that Mr. Cunneen intentionally made contact with Ms. Wang because she was in his way. At a minimum, Mr. Cunneen was reckless to the danger that his course of action would create a risk that the prohibited consequence would occur but proceeded in any event. However, on the totality of the evidence, I find that Mr. Cunneen’s action was deliberate. I accept that he may not have intended to hurt Ms. Wang as seriously as he did, or even at all. However, I find, in all the circumstances, that the risk of bodily harm that was neither trivial nor transitory was an objectively foreseeable consequence of pushing Ms. Wang with force and speed from behind.

[69] For all of these reasons, I do not accept Mr. Cunneen’s evidence about the circumstances of how and why the collision occurred, or his evidence that the contact was accidental. Nor does his evidence, on its own and when looked at in the context of the rest of the evidence, raise reasonable doubt. On the findings I have made, I am satisfied beyond a reasonable doubt that the Crown has proven the unlawful act of assault and has further proven all the elements of unlawful act manslaughter.

[70] I find Mr. Cunneen guilty of unlawful act manslaughter.

[71] In the circumstances, it is unnecessary for me to make a finding on the Crown’s alternate theory of criminal negligence manslaughter.

R. Maxwell J.

Released: July 23, 2024

COURT FILE NO.: 24-100000268-0000

DATE: 20240723

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

RYAN RICHARD CUNNEEN

REASONS FOR JUDGMENT

R. Maxwell J.

Released: July 23, 2024

[^1] Dr. Pollanen’s qualifications were not contested and agreed to in Exhibit 1, the Agreed Statement of Facts.

R. v. Cunneen, 2024 ONSC 4541

Case Summary

Overview

The Evidence

Mr. Cunneen’s Activities Before the Incident

The Law

Unlawful Act Manslaughter

The Evidence of Mr. Cunneen

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 2

Legal Tests 2

Legislation 3