



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kuntz, 2021 ONCA 903

DATE: 20211217

DOCKET: C66863

Simmons, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kristin Kuntz

Appellant

Michael Lacy and Bryan Badali, for the appellant

Michael Dunn, for the respondent

Heard: October 18, 2021 by video conference

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

Simmons J.A.:

A.

Introduction

[1]

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

[2]

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

[3]

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

[4]

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

[5]

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

[6]

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

i.

the verdict was unreasonable;

ii.

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

iii.

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

iv.

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

[7]

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

B.

background

(1)

Tamaracks and Mr. Yeung

[8]

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

[9]

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

[10]

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

[11]

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

[12]

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

[13]

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

(2)

The Bathing Protocol

[14]

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

[15]

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

[16]

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

[17]

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

(3)

The CCTV Footage

[18]

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

[19]

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

[20]

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

(4)

Cause of Death Evidence

[21]

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

[22]

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

[23]

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

[24]

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

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

[25]

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

[26]

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

[27]

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

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

[28]

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

[29]

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

Q. And if those first three arent there [seizure, disability,
    falling asleep] and we dont have any other reason, then it would open up the
    possibility that, because you say its a diagnosis of exclusion, we have a
    different cause of death and he was simply immersed in the water.

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

Q. Im not saying you do, but I am saying that if we rule out
    the first three, then, I mean, and we dont have a reason for him to have been
    submerged, isnt it possible theres some unexplained cause of death?

A. Indeed.



A.

 but just to make my
    position clear again, the fact that one sits in a bathtub of water as many
    people will do on a daily basis doesnt raise any high degree of danger that
    youre going to drown  If one is to drown in a bathtub there will generally be
    a reason why one has drowned in the bathtub. That could be as simple as alcohol
    intoxication, for instance. It could be drugs and alcohol overdose. It could be
    a head injury. It could be inflicted injury by somebody else. It could be
    traumatic as in somebodys held under the water or it could be disease process,
    some of which weve been talking about here, and some disease processes of
    course dont show anatomic stigmata at autopsy such as a cardiac arrhythmia or
    a seizure, but the natural course of a persons life certainly doesnt invoke
    drowning without something, some causative mechanism being added.

[30]

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

[31]

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

[32]

Dr.
    McAuliffe was not asked about, nor did he comment on, Mr. Yeungs action in
    leaning over the toilet as captured on video nor the bleeding the appellant
    testified to observing from Jackies mouth.

(5)

The Appellants Evidence

[33]

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

[34]

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

[35]

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

[36]

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

[37]

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

[38]

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

[39]

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

(6)

The 911 Call

[40]

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


[41]

The
    recording includes the following exchanges:

Mr. Kuntz: I have a man I think hes drowning



Dispatch: Is the person awake?

Mr. Kuntz: Hes hes out like out of it, his lips are
    blue

Dispatch: How old is he?

Mr. Kuntz: Uh he is taking breaths but I dont know um

Dispatch: Hes breathing but you cant wake him?

Mr. Kuntz: Nope



Dispatch: Okay sir you said hes breathing?

Mr. Kuntz: Hes ... I dont know ... fuck ... I dont know
    ... hes  JACKIE ... he was looking at me but now hes out like hes gone.

Dispatch: Is his chest rising and falling?

Mr. Kuntz: Nope.

Dispatch: No?

Mr. Kuntz: Nope.

*Dispatch asks Mr. Kuntz to do a breathing check*

Mr. Kuntz: He just took a breath.

Dispatch: He just took a breath?

Mr. Kuntz: Yup.

Dispatch: Okay.

Mr. Kuntz: Im going to try pulling him out of the tub.

Dispatch: You found him in the tub?

Mr. Kuntz: Yeah Im trying to pull him out right now.

Dispatch: Okay.

Mr. Kuntz: I got him out.

Dispatch: You got him out?

Mr. Kuntz: Yeah.

Dispatch: Okay.



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

Mr. Kuntz: Yup.



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



Dispatch: Hes not moving at all?

Mr. Kuntz: No no hes not moving.



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

Dispatch: like he was having trouble breathing?

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

Dispatch: How long was he in the tub for?

Mr. Kuntz: oh, 5 minutes.

.

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

Mr. Kuntz: No.

Dispatch: He stopped?

Mr. Kuntz: Yes. Hes full of water

C.

discussion

(a)

Was the Verdict Unreasonable?

(i)

The test for an unreasonable verdict

[42]

Although
    appellate courts afford considerable deference to a jury verdict, the verdict
    is not immune from appellate review. Where an unreasonable verdict is alleged,
    the question is whether the verdict is one that a properly instructed jury
    acting judicially could reasonably have rendered:
R. v. Yebes
, [1987]
    2 S.C.R. 168, at p. 185;
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R.
    381, at para. 36. Where the Crowns case depends on circumstantial evidence, an
    appellate court must ask whether the jury, acting judicially, could reasonably be
    satisfied that the accuseds guilt was the only reasonable conclusion available
    on the evidence taken as a whole:
R. v. Villaroman
, 2016 SCC 33, [2016]
    1 S.C.R. 1000, at paras. 55-56. The availability of competing inferences does
    not in itself make a verdict unreasonable. The question is whether the
    competing inferences are reasonable. It is for the trier of fact to draw the
    line that separates reasonable doubt from speculation.

(ii)

The appellants argument that the Crown failed to prove causation

[43]

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

[44]

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

i.

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

ii.

that the appellants act or omission showed a wanton or reckless disregard
    for the life or safety of the deceased; and

iii.

the appellants act or omissions caused the deceased death.

See
R. v. Javanmardi
,
    2019 SCC 54, 439 D.L.R. (4th) 579, at paras. 19-21.

[45]

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

a)

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

b)

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

c)

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

[46]

Concerning
    the element of causation, the Crown must show that the appellants conduct
    contributed significantly to the deceaseds death:
R. v. Nette
, 2001
    SCC 78, [2001] 3 S.C.R. 488. That may occur even if the appellants conduct was
    not the sole or main cause of the deceaseds death. If the appellants conduct
    contributed significantly to the deceaseds death, it does not matter that
    timely medical treatment might have saved the deceaseds life or that the
    appellants conduct only accelerated the deceaseds death from some existing
    disease or condition.

[47]

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

[48]

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

[49]

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

[50]

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

[51]

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

[52]

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

[53]

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

[54]

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

[55]

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

D.

disposition

[56]

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

Released: December 17, 2021 J.S.

Janet Simmons J.A.

I agree. P. Lauwers
    J.A.

I agree. G. Pardu
    J.A.





[1]

In a 2009 note, the appellant recorded observations (Mr. Yeung
    was shaking badly and appeared lethargic) that the appellant believed at the
    time may have indicated Mr. Yeung suffered a seizure. When asked about the note,
    Dr. McAuliffe testified, shaking and very lethargic doesnt indicate a seizure
    per se to me. However, Dr. McAuliffe also noted that there was reference to
    anti-convulsant medications suggesting there was a legitimate issue at some
    stage, albeit eight years previously.



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


