The Lawyer's Daily is now Law360 Canada. Click here to learn more.

Bryan Badali, Brauti Thorning LLP

Courts, juries must be ‘very careful about reasoning backwards’ to criminal liability: counsel

Wednesday, December 22, 2021 @ 9:36 AM | By Amanda Jerome

The Court of Appeal for Ontario has set aside a conviction of criminal negligence causing death and entered an acquittal for an overnight attendant in a group home after a resident under his care died while in the bathtub. The court stressed that the “legal complexities surrounding the charge of criminal negligence causing death and the circumstances of this case (the credibility challenges surrounding the appellant’s evidence) created a real risk that the jury might reason backwards.”

In R. v. Kuntz, 2021 ONCA 903, the court heard that Chi-Ki Yeung, a 41-year-old “long-time” resident of the Tamaracks adult residential group home, died in April 2016. According to court documents, Yeung “suffered from Smith-Magenis syndrome, a genetic disorder that causes physical, mental and behavioural issues.”

The appellant, Kristin Kuntz, was the “overnight attendant on duty” when Yeung died. According to court documents, Kuntz helped Yeung into the bathtub around 1 a.m. because the deceased had soiled himself.

“According to the appellant,” the court noted, Yeung “became aggressive with him when he attempted to check the cause of what appeared to be bleeding from Mr. Yeung’s mouth.”

Kuntz left Yeung “alone in the bathtub for approximately 16 minutes to socially isolate him and allow him to calm down,” which, he testified, was his understanding of the “appropriate protocol.”

However, the court noted, this “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.”

When Kuntz came back to the bathroom, Yeung was “submerged in the bathtub struggling to breathe.” Kuntz called 911, but Yeung was pronounced dead at 2:06 a.m.

Kuntz was charged with criminal negligence causing death in November 2016.

At trial, the court noted, the Crown “challenged the credibility of aspects of the appellant’s evidence: i) the appellant’s claim that Mr. Yeung was aggressive with him, requiring him to invoke the social isolation protocol; and ii) the appellant’s evidence that when he returned to the bathroom, Mr. Yeung’s nose and mouth were above water.”

“In addition to credibility,” the court added, “the contested issues at trial included whether the appellant’s actions showed wanton or reckless disregard for the life or safety of Mr. Yeung; whether the appellant was operating under an honest and reasonable mistake of fact when he socially isolated Mr. Yeung; and whether the appellant’s actions contributed significantly to Mr. Yeung’s death (i.e., causation).”

On the issue of causation, the Crown “relied on the evidence of Dr. Noel McAuliffe, the forensic pathologist who conducted Mr. Yeung’s autopsy.” According to court documents, McAuliffe determined that “the immediate cause of death was drowning,” but in the post-mortem report he noted 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,” the court added.

Kuntz appealed, arguing: “the verdict was unreasonable; the trial judge (Justice Susan Healey of the Superior Court of Justice) erred in her charge to the jury on reasonable mistake of fact; in light of the burden of proof, the trial judge erred by failing to properly instruct the jury concerning the absence of expert evidence in relation to Mr. Yeung’s Smith-Magenis condition; and the trial judge improperly used lack of remorse as an aggravating factor on sentence.”

According to court documents, McAuliffe confirmed during cross-examination that “drowning is a diagnosis of exclusion based on ruling out other causes of death and taking account of the circumstances surrounding the death.”

McAuliffe explained, “[t]here is no specific anatomical finding for drowning … [d]rowning is essentially a diagnosis of negative findings conjoined with appropriate circumstances.”

“In this case,” the court noted, “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.”

The court also noted that the doctor “agreed it was a possibility that the cause of death was something not detectable on autopsy, such as a sudden cardiac arrest due to ‘an irregularity of the heartbeat, an arrhythmia which isn’t visible.’ ”

“He confirmed that an undetected arrhythmia 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,” the court explained.

Kuntz testified at trial and, according to court documents, he “enjoyed working with Mr. Yeung,” but noted that 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,” the court explained.

Kuntz testified that “the Crisis Prevention Intervention training he took provided a number of strategies for dealing with aggressive residents.”

According to court documents, the main strategy to use when a staff member was alone on duty “was social isolation which involved removing the target of aggression and letting the resident cool down.” The court noted that Kuntz 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,” the court explained.

Justice Janet Simmons, writing for the Court of Appeal, noted that “[I]n order to prove criminal negligence causing death, the Crown was required to prove beyond a reasonable doubt: i. the appellant undertook an act, or omitted to do something it was his legal duty to do; ii. that the appellant’s act or omission showed a wanton or reckless disregard for the life or safety of the deceased; and iii. The appellant’s act or omissions caused the deceased death.”

“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,” Justice Simmons noted.

“Nonetheless,” she added, Kuntz submitted 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.”

Kuntz submitted that “there was no reasonable basis in the evidence on which a jury, acting reasonably, could conclude the appellant’s actions caused Mr. Yeung’s death.”

“The Crown adduced no medical evidence at trial to confirm Mr. Yeung had any ongoing risk of seizures. Dr. McAuliffe’s evidence was that falling asleep in a bathtub would be unlikely to lead to death by drowning. Dr. McAuliffe could not eliminate an unknown cause, such as cardiac arrhythmia, as the cause of death,” the court added, noting that the Crown submitted 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,” the court explained of the Crown’s submission.

Regarding the Crown’s submission, the court also noted that “[I]t was open to the jury to accept the medical evidence that Mr. Yeung drowned.”

“On that finding, the appellant’s conduct in leaving him alone in the tub was obviously a significant contributing factor leading to his death. The fact that Dr. McAuliffe could not identify the cause of the drowning or eliminate cardiac arrhythmia 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,” the court added, explaining that the “suggestion” that Yeung died “as a result of a cardiac arrhythmia was nothing more than speculation.”

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

Justice Simmons noted that “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,” she added.

Justice Simmons also noted that the Crown “led no medical evidence at trial to establish that Mr. Yeung had any risk factors related to bathing alone in a bathtub.”

“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,” Justice Simmons stressed.

McAuliffe “arrived at his diagnosis of drowning based to some degree on his understanding of the state in which Mr. Yeung was found,” she added

“However,” the court noted, his “understanding was not fully supported by the record.”

“Moreover,” Justice Simmons explained, “it is not apparent that he was aware of all the circumstances surrounding the death” and he “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 arrhythmia as a cause of death,” Justice Simmons added.

Justice Simmons stressed that “[I]n the absence of evidence to demonstrate what may have led to any drowning and given that Dr. McAuliffe could not eliminate cardiac arrhythmia as a cause of death, I would hold that the verdict was unreasonable.”

“In these circumstances, there was insufficient evidence to enable a trier of fact, acting reasonably, to conclude that the outcome would not have been any different had the appellant remained in the bathroom throughout Mr. Yeung’s bath,” she explained.

In Justice Simmons’ view, “this is a type of case that presents a risk of an unreasonable verdict.”

Bryan Badali, Brauti Thorning LLP

Bryan Badali, Brauti Thorning LLP

“The legal complexities surrounding the charge of criminal negligence causing death and the circumstances of this case (the credibility challenges surrounding the appellant’s evidence) created a real risk that the jury might reason backwards,” she explained.

“In other words,” she added, “there was a real risk the jury could jump to the conclusion that because Mr. Yeung died in the bathtub, the appellant’s conduct in leaving him alone in the bathtub must have played a significant contributing role in his death.”

Justice Simmons, with Justices Peter Lauwers and Gladys Pardu in agreement, determined to allow the appeal in a decision released Dec. 17. The court set aside the conviction and entered an acquittal.

Bryan Badali, a partner at Brauti Thorning LLP and counsel for the appellant with Michael Lacy, said one of the takeaways from this decision is that “courts and juries have to be very careful about reasoning backwards from an outcome to the imposition of criminal liability.”

“The reason that the unreasonable verdict ground of appeal was accepted was that the Crown really didn’t lead sufficient evidence of causation in this case. It basically tried to bootstrap causation based on the fact that our client, Mr. Kuntz, had supervision for Mr. Yeung, the deceased, and the death occurred while on his watch,” he explained, noting that the Crown “didn’t lead any medical evidence about Mr. Yeung’s condition” and that “ultimately led the court to conclude that there was just too much uncertainty about why Mr. Yeung collapsed and died.”

He noted that the court “expressed concern about the jury’s ability to exclude other reasonable inferences that were inconsistent with Mr. Kuntz’s guilt.”

Badali emphasized that when Crowns build their case they’ve “got to give real thought to questions of how to prove causation, how to prove the standard of care in the context of criminal negligence.”

The Ministry of the Attorney General, on behalf of Crown counsel, declined to comment on the decision.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Amanda Jerome at or call 416-524-2152.