R. v. ROCHON-FROSK, 2016 MBPC 73

CITATION: R. v. ROCHON-FROSK, 2016 MBPC 73 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Sharyl Thomas, for the Crown ) and ) ) ROCHON-FROSK, Daniel ) Katherine Bueti, for the Accused ) ) Reasons for Decision delivered: ) December 15, 2016 DECISION ON FACTUAL FINDINGS FOR SENTENCING SUBSEQUENT TO A GARDINER HEARING MARTIN, P.J. Introduction [1] This decision deals with factual findings following a guilty plea to a charge of assault causing bodily harm against an infantvictim, Baby L. [2] On April 11, 2014, Baby L was adopted by Daniel Rochon-Frosk (“Rochon-Frosk”) and his husband.

Six weeks later, on May24, 2014, Baby L was admitted to the hospital after being found unresponsive. Upon examination, it was determined that she hadsuffered significant injury as a result of fractures to her leg, ribs and skull, as well as irreparable brain damage as a result ofacceleration/deceleration type injuries. [3] Rochon-Frosk was arrested in connection with these injuries. In the course of the investigation, he provided two videostatements to the police, one on May 26, 2014 and one on June 24, 2014.

It was during the June 24, 2014 statement that Rochon-Froskadmitted to throwing Baby L in the air, hitting her head against a wall and dropping her several feet on to a tiled floor, and squeezing herribs twice in a fit of frustration. He also admitted that he did not tell anyone about these incidents, nor seek medical care for Baby Ldespite symptoms of significant distress. [4] On the basis of these admissions, Rochon-Frosk entered two guilty pleas on December 22, 2015, one to the offence of failingto provide necessaries of life contrary to

section 215 of the Criminal Code, the other to the offence of assault causing bodily harmcontrary to

section 267 of the Criminal Code. Though Rochon-Frosk admitted the essential elements to each offence, he took the positionthat he lied to the police about squeezing Baby L’s ribs in a fit of frustration. As the Crown wanted to rely on Rochon-Frosk’s admissionas an aggravating fact, the sentencing hearing proceeded with a Gardiner hearing. The Law [5] It is trite law that when imposing a sentence, the sentencing judge must consider the nature of the offence and thecircumstances surrounding its commission.

Any finding made by a judge in this regard must be supported by evidence or information inthe record. [6] Where the evidence or information is not in dispute, the sentencing judge may accept them as proven facts (section 724(1) ofthe Criminal Code). Where, however, the facts are in dispute, the court must conduct what is referred to as a Gardiner hearing. As notedby the Supreme Court of Canada in R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368, [1982] S.C.J.

No. 71, 68 C.C.C. (2d)477 at page 514, 1982 CarswellOnt 90, at paragraph 111: ...a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more.Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can bevery informal.

If the facts are contested, the issue should be resolved by ordinary legal principles governing criminal proceedings,including resolving relevant doubt in favour of the offender. [7] All disputed aggravating facts must be proven by the Crown beyond a reasonable doubt:

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence...

(

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous convictionby the offender. (Section 724(3)(

e) of the Criminal Code. See also: R. v. Parenteau, (MB CA), 1980 CarswellMan 243, 52 C.C.C.(2d) 188 (MBCA), at paragraph 10) [8] Where an accused testifies at a Gardiner hearing, the court must be guided by the principles enunciated in R. v. W.(D.) (1991), (SCC), 3 C.R. (4th) 302, 63 C.C.C (3d) 397, [1991] 1 S.C.R 742; R. v. Sutherland, 2005 MBQB 29 at paragraph 9) inassessing the evidence and determining whether the Crown has met its onus. The Sentencing Hearing [9] The hearing into the factual findings of Rochon-Frosk’s guilty plea to assault causing bodily harm began on February 22,2016.

On that day, several exhibits were filed by consent, notably medical reports and Rochon-Frosk’s June 24, 2014 video statementand transcript. Rochon-Frosk also testified, providing evidence that he lied to the police in his June 24, 2014 statement about squeezingBaby L’s ribs out of frustration. [10] The Court then adjourned for the Crown to consider whether it would call rebuttal evidence. On May 10, 2016, Dr. TavisBodnarchuk testified. A further medical report authored by him on April 15, 2016 was entered as an exhibit. [11] On July 11, 2016, the Court re-convened for submissions.

On that day, the Crown filed the video statement and transcript ofRochon-Frosk’s May 26, 2014 statement to the police. Assessment of the Evidence [12] The medical evidence before this Court discloses that Baby L was born healthy with no underlying medical condition. On April11, 2014, at four weeks of age, she was adopted by Rochon-Frosk and his husband. On May 24, 2014, six weeks after coming into theircare, an ambulance was called as Baby L had stopped breathing.

She was admitted to the hospital that same day with the followinginjuries and presentation: • Rib fractures, namely: o Fractures to the posterior medial aspects of the right 6th and 7th ribs and the posterior lateral aspect of the left 6th rib; • Brain injury, namely: o Poor grey-white differentiation in the cerebral cortex; o Subdural hemorrhages in the left frontal and posterior interhemispheric fissure, as well as overlying the left and right tentorium; o Hemorrhages of similar characteristics within dependent portions of the occipital horns of the left and right ventricles; o Restricted diffusion in the left cerebral hemisphere, right central frontal and parietal lobes; o A minimally displaced left parietal skull fracture; • Eye injury, namely: o Retinal hemorrhages at multiple levels in four quadrants of the retina in the left eye only, too numerous to count; • Left leg fracture, namely: o A healing fracture of the midshaft of the left tibia, as well as some minimal periosteal reaction on the lateral aspect of the midshaft ofthe fibula. [13] With the exception of the skull fracture, which was unable to be dated, all of Baby L’s injuries were determined to haveoccurred after Baby L was adopted by Rochon-Frosk and his husband and she was in their care: • At five to six weeks of age, or within one to two weeks of being adopted, rib fractures to Baby L’s right 6th and 7th ribs; • At six weeks of age, or within two weeks of being adopted, leg fracture; • At 7 weeks of age, or within three weeks of being adopted, rib fracture to the left 6th rib; • At eight to nine weeks of age, or within four to five weeks of being adopted, brain hemorrhages; • There was also brain damage as a result of hypoxia, or lack of oxygen.

It is unclear whether that damage occurred at eightto nine weeks of age or on the day the ambulance was called. [14] The medical practitioners at the Child Protection Centre at the Children’s Hospital opine that Baby L’s “injuries are allconsistent with applied trauma both direct blunt force and acceleration/deceleration injuries, as well as changes associated withhypoxia”. They are unable to ascribe an exact cause of Baby L’s injuries. They are only able to provide a mechanism of injury. In otherwords, they can only tell us what type of mechanism was required to cause the injuries sustained by Baby L.

[ 15 ] The evidence as to the cause of Baby L’s injuries comes solely from Rochon-Frosk, Baby L’s main caregiver and the person who had exclusive opportunity to both inflict and know of her injuries. [ 16 ] Rochon-Frosk has generally not been candid about the cause of Baby L’s injuries. Much of the evidence has only come out slowly, over time, and after considerable investigation.

The timing and amount of disclosure by Rochon-Frosk, as well as the quality and consistency of that disclosure, are significant in assessing credibility and ascribing weight to the evidence. [ 17 ] Rochon-Frosk is a 40 year old, university educated man. It was clear, both in his testimony and the letters of reference filed as an exhibit on his behalf, that Rochon-Frosk has loved and cared for infants and children in the past. He knows that babies are fragile and need to be treated with care. [ 18 ] Rochon-Frosk acknowledges that several incidents occurred when Baby L was in his care.

Those incidents could be characterized as accidents, improper handling and deliberate. It is important to note that only those incidents which could be characterized as accidents were immediately disclosed by Rochon-Frosk to his husband and mother. The other incidents, those characterized as improper handling or deliberate, were never disclosed to anyone. [ 19 ] The first accidental incident is the ‘change table’ incident. On or about April 23, 2014, twelve days after the adoption, when Baby L was approximately six weeks old, Rochon-Frosk rolled his ankle and tripped with Baby L in his arms.

Baby L hit her head and ended up with a small bruise above her eye but was otherwise unharmed. Rochon-Frosk disclosed the incident to both his husband and his mother who attended his home immediately to ensure the well-being of Baby L. [ 20 ] Other than this incident, Rochon-Frosk only disclosed symptoms Baby L was experiencing, not the incidents themselves. Those incidents could be characterized as improper handling – throwing Baby L in the air, hitting her head against the wall and dropping her to the floor.

No disclosure was provided in any regard with respect to incidents which could be described as deliberate, if Rochon-Frosk’s June 24, 2014 admission is accepted as the truth. [ 21 ] Despite the severity of the symptoms, which were seizure-like in nature - vomiting, loose stool, crying out, arching her back and straightening her limbs, then going limp – Rochon-Frosk remained mute about the incident preceding them even though they occurred on three separate occasions - May 17, 2014, May 21, 2014 and May 24, 2014. He even remained silent during a routine medical visit with Baby L’s pediatrician, Dr.

Bodnarchuk, who was left with the impression that Baby L was merely being fussy around feeding time, likely as a result of intolerance to her formula. [ 22 ] Rochon-Frosk continued to conceal his handling of Baby L even when she was admitted to the hospital and doctors were attempting to determine the cause of her symptoms so as to administer appropriate care and treatment.

It was only slowly, and over time, that Rochon-Frosk provided some information to the police about his handling of Baby L. [ 23 ] Rochon-Frosk was interviewed by the police on two occasions, once on May 26, 2014, and then again on June 24, 2014. The voluntariness of both statements is admitted. They were entered as exhibits without being played at the hearing. The Court has viewed both statements. The first statement is approximately 3 hours in length, the second, 8 hours. The difference in the two statements is remarkable in many regards. As such, it is important to review the statements in some detail.

The First Statement: May 26, 2014 [ 24 ] Rochon-Frosk’s first statement to the police was taken a mere two days after Baby L was admitted to the hospital. Rochon- Frosk presented as extremely upset and overwhelmed. He often cried, held his head in his hands and rocked back and forth. [ 25 ] It is evident that at this point in time, the police were at the beginning stages of their investigation. Many general questions were asked to get some background information and determine whose care Baby L may have been in over the preceding weeks.

It is clear, however, that the police had been told that Baby L’s injuries were not accidental as they told Rochon-Frosk that the nature of the injuries could constitute aggravated assault. Though visibly shaken by this information, Rochon-Frosk informed the police that he had “nothing to hide”. He spoke spontaneously and freely. He shared the change table incident and the seizure-like symptoms. In describing the change table incident, Rochon-Frosk acted it out.

It is noteworthy that he used a Kleenex box to show how Baby L was nestled in the crux of his left arm with her head supported, when he fell. [ 26 ] As the statement continued, Rochon-Frosk’s tone became more measured and conversational. He provided good detail, at times showing photographs and acting out his actions to explain himself. He also displayed a good memory for events and dates.

Importantly, Rochon-Frosk did not disclose any of the incidents he later discloses on June 24, 2014, of throwing Baby L in the air, dropping her to the floor, or “squishing” her ribs in a moment of happiness, even though he asserted at the time, that he had told the doctors “everything” and assured the police that, other than what he had disclosed, there were no other untoward incidents. [ 27 ] Despite what is now known to be serious omissions with this statement, Rochon-Frosk presented as cooperative and convincing, as well as at relative ease given the situation.

He asked for an Advil and the restroom and questioned when he would be free to leave. Of note, Rochon-Frosk was made aware during his statement that his husband was being interviewed separately and that his interview was taking much longer. Further, although the investigation technique was cordial, the police did hint at Rochon-Frosk’s potential jeopardy and continued to return to the same line of questioning about Baby L’s injuries, time and again.

The Second Statement: June 24, 2014 [ 28 ] The June 24, 2014 statement varies in several regards from the May 26, 2014 statement, most notably, the length, the tone and the admissions by Rochon-Frosk. This statement is just under 8 hours in length, more than twice as long as the May 26, 2014 statement. That said, there are several breaks, and Rochon-Frosk is provided with opportunities to go to the restroom when requested and was given food and water. [ 29 ] The tone of this statement is starkly different from the May 26 th , 2014 statement. Whereas in the latter, Rochon-Frosk presented

as open and talkative, in this statement he presented as closed and guarded. The investigative technique is also different. At times the police were conversational and probing, at others, aggressive and forceful. They pushed for answers to explain how it was that Baby L sustained such severe and numerous injuries while in Rochon-Frosk’s care. [ 30 ] At the beginning of the interview, the police ensured that Rochon-Frosk knew why he was there and informed him that anything he said during the interview could be used against him. It is clear from Rochon-Frosk’s answers that he was aware of his legal rights.

He often refused to answer, even during vigorous interrogation, stating that his lawyer advised him to remain silent. [ 31 ] For much of the statement, Rochon-Frosk remained silent about the previously undisclosed incidents, only talking about the symptoms and suggesting a variety of causes for them, including a change in formula, meningitis or abuse prior to the adoption. He denied any responsibility for causing them, stating “I did nothing” and that the only thing that happened was the change table incident.

In describing that incident, however, and in contrast to his May 26, 2014 statement, he told the police that he was holding Baby L, not in the crux of his arm with her head supported, but with two hands around her ribs. He questioned whether this may have been the cause of Baby L’s fractured ribs. [ 32 ] It was only approximately three hours into the interview that Rochon-Frosk disclosed the May 17, 2014 incident which had previously never been disclosed: OFFICER: .... she comes into your care on April 11 th . Between April 12 th and 19 th she has a right rib fracture.

April 26 th she suffers a broken left tibia and bone (c/u) to fibia. Between April 3 rd , and 23 rd and May 1 st is where you describe rolling your ankle and ho-f- while holding her and falling her but then on May 3 rd , she has a rib fracture. Around May 17 th she suffers the brain bleeds. We know this happens while she’s in your care, Daniel we know that to be the case. ROCHON-FROSK: I honestly don’t know what that’s from. That, I, I can’t explain that at all. OFFICER: So what can you explain? ROCHON-FROSK: On or around May 17 th I was playing with her.

We were spinning around, I was dancing with her to some music and I think I got dizzy and I hit her head on the wall, well more the door frame. We were spinning and dancing. OFFICER: And then what happened? ROCHON-FROSK: She was crying. I soothed her. I was rubbing her back, I sat on the couch, she would lay on me. She fell asleep, I left her there. I had her on me for a couple hours then she woke up and I fed her and the rest of the day went as normal. I think that was the day before the shower. OFFICER: Was it the day that Patrick came home? ROCHON-FROSK: No that was the day after.

OFFICER: Which side of her head hit the door frame? ROCHON-FROSK: I don’t know. I can’t remember. Like I said, I was dancing and we were spinning. I just heard the thump. OFFICER: So what do you think that accounts for? ROCHON-FROSK: I’m assuming now that might, I don’t know if that caused the bleeding in her head. I don’t know about the fracture. The left fracture I have no idea where that came from.

That I just can’t think of anything… (pages 96 – 97, June 24, 2014 statement) [ 33 ] Further admissions do not come until close to three hours later, after a break of over one and a half hours, food, and more sustained interrogation. At this point, the police were more aggressive and the tone louder and incredulous. The officer told Rochon- Frosk that his story was unbelievable and suggested that he either lost patience and shook Baby L or perhaps did so to get attention from his husband.

Several times, Rochon-Frosk told the officer that he was not speaking until he saw his lawyer, adding that he did not want to say anything that the police could twist against him. For the most part, Rochon-Frosk remained outwardly calm throughout this style of interrogation, though at times, he retorted aggressively to suggestions put to him, stating “Why don’t you tell me what you think I did?” (page 98, June 24, 2014 statement) or “I can man up to him.

You’re gonna bring him in here?” (page 118, June 24, 2014 statement) [ 34 ] After another break of approximately one-half hour, the officer once again changed his interrogation technique. He became understanding and adopted a softer, kinder tone. He suggested that perhaps the incidents were mere accidents. At 10:13 p.m. Rochon- Frosk eventually admitted that on May 17, 2014, not only did he hit Baby L’s head on the door frame when he was dancing with her, but he also dropped her to the floor. He explained that he was dancing through the house with Baby L to one of his favourite songs.

He was holding her back with one hand, her hand with his other hand. As they were spinning, her left forehead hit the wall and he dropped her. She landed partly on the carpet but mainly on the tiled floor. She began crying so he tried to soothe her but she would not stop. He eventually put her in her room where she went to sleep.

In describing Baby L’s presentation after the fall, Rochon-Frosk advised there was no apparent injury, stating “If she’d had a bruise I wo-probably woulda told [my husband] about it but there was nothing so I didn’t ‘cause I wouldn’t have been able to hide that from him.” (page 138, June 24, 2014 statement) [ 35 ] When the officer told Rochon-Frosk that he still did not believe him, Rochon-Frosk offered up other incidents where harm may have inadvertently occurred.

It was not until approximately 10:30 p.m. that Rochon-Frosk admitted to having squeezed Baby L around the ribs twice, once at the end of April, and once during the first week of May, 2014. He explained that Baby L just would not stop

crying so he squeezed her ribs, asking her to shut up. He stated that he caught himself and placed her in her playpen but the next week he did it again, this time uttering “fuck”. [ 36 ] The officer continued to question Rochon-Frosk telling him that his story still did not account for the other injuries suffered by Baby L. This was when Rochon-Frosk admitted that he threw Baby L in the air approximately twelve times between April 17 and May 8, 2014, only stopping after his husband chided him for picking the baby up by her arms and pulling her to a standing position.

According to Rochon-Frosk, the chiding made him re-consider his practice of tossing her in the air, thinking perhaps Baby L was still too young for that type of activity. In describing the toss, Rochon-Frosk used a Kleenex box to demonstrate a throw in the air to ceiling height or higher, commenting that he had vaulted ceilings. [ 37 ] In relating this information to the police, Rochon-Frosk was very fulsome in the amount of detail he provided.

Rochon-Frosk’s Oral Evidence [ 38 ] Despite acknowledging that his admissions to the police on June 24, 2014 were for the most part true, Rochon-Frosk says that he lied to the police about deliberately squeezing Baby L’s ribs.

He testified that although he still does not know how the broken ribs occurred, he surmised that it was possible they occurred during the change table incident, as a result of dropping her, or when he ‘squished’ her around the ribs out of emotion and love. [ 39 ] Rochon-Frosk says that he lied to the police because he was worried about his husband who was also being interviewed and because he wanted the interview to end.

He therefore told them what they wanted to hear. [ 40 ] Rochon-Frosk also testified to having a variety of difficulties during his June 24, 2014 statement: • He was very confused about not having access to his lawyer after his right to counsel was provided to him and he spoke to his lawyer, as he thought he could have his lawyer present during the questioning; • He was still in a state of shock as to what was happening; • He did not understand if he had been charged and what that meant; • Although he received the standard police caution and felt early on that he had the choice to answer as he wished, he later felt he had to provide an answer.

He also did not think that he could take breaks, make requests or stop the interview. [ 41 ] Rochon-Frosk also felt that the police did not have their facts straight and were using an investigation technique that was designed to make him feel as though they identified with him and tried to lead him to what he wanted him to say.

He also testified to feeling set up, in particular by having a police officer placed in a cell with him during the breaks in the interview to get him to confess, and creating a video of his husband which he could tell was spliced because of his different attire. [ 42 ] Rochon-Frosk admitted that he had not initially been forthcoming to the police, conceding that there were facts he did not reveal to them in his May 24, 2014 statement.

He testified that he told no one about dropping Baby L on to the tiled floor because he was ashamed and wanted to forget it, and because he thought Child and Family Services would apprehend her given that this was the second accident he had with her, after the change table incident. He also admitted that he feared the worst when Baby L cried, arched her back and went limp on May 17, 2014 but added that fear subsided when Dr. Bodnarchuk and his husband did not find anything wrong with her. Dr. Bodnarchuk’s Evidence [ 43 ] The Crown called Dr. Bodnarchuk to rebut Rochon-Frosk’s oral evidence. Dr.

Bodnarchuk testified at the hearing in his capacity as Baby L’s treating pediatrician, but also as an expert, qualified as a pediatrician with specialization in the area of child abuse and the identification of child abuse. Dr. Bodnarchuk testified generally about the nature and extent of Baby L’s injuries as well as the mechanism of those injuries. As regards specifically Baby L’s broken ribs, the injury at issue, Dr.

Bodnarchuk’s opinion is that the mechanism of injury described by Rochon-Frosk in his June 24, 2014 statement is more likely to have caused those fractures, than the mechanisms described in his oral evidence. [ 44 ] Dr. Bodnarchuk testified that the most likely mechanism of injury for the fractured ribs is a gripping and squeezing motion which moves the spine forward in relation to the rib heads with a degree of force that would fall outside of what would be considered to be normal handling of an infant: Posterior rib fractures, as [Baby L] had, required a specific mechanism to achieve.

The rib heads are levered over the spinous process and eventually fail. This can be seen with significant blunt force applied to the chest, forcing the rib cage back in relation to the spine, as in a motor-vehicle accident. It does not occur with traditional chest compressions due to the fact the spine and ribs are on a flat surface and therefore prevent this levering. Only with the newer two-handed technique have rib fractures been documented with resuscitative efforts. This new technique involves gripping the infant’s chest with the thumbs over the sternum (breastbone) and the finger along the back.

This gripping is the same mechanism that accounts for fractures in non-accidental infant trauma. Gripping and squeezing appears to be the most likely mechanism for [Baby L’s] fractures in the absence of a serious accident. This mechanism applies pressure on the front of the chest as well as over the spine creating the levering and resultant fractures. The required force, while difficult to gauge, would certainly fall outside of that seen with normal handling of an infant.

These fractures are not seen with short falls (<5 feet) or exuberant embraces as described in the court transcript dated February 22, 2016. [ 45 ] Dr. Bodnarchuk was candid that he was unable to say how much pressure would be required to cause Baby L’s rib fractures. Although he did not think that Rochon-Frosk’s evidence of squishing Baby L, or of the change table incident could have caused the rib

fractures, he conceded that as long as Rochon-Frosk applied force in the same manner consistent with the gripping and squeezing mechanism required to fracture a rib, either incident may have been at the origin of those rib fractures. He was however clear that the ribs would not have been caused by the fall as described by Rochon-Frosk in his June 24, 2014 statement and oral evidence. [ 46 ] Dr.

Bodnarchuk acknowledged that his opinion was limited to picking an incident described by Rochon-Frosk that was more consistent with the mechanism of injury required to fracture a rib and that there may be other possible explanations for Baby L’s injuries. He also acknowledged that the incidents described by Rochon-Frosk are based on his own self-reporting and that if that self-reporting is inaccurate or untruthful, his opinion as to which incident most likely to cause the rib fractures would be affected.

Analysis [ 47 ] As indicated, the onus is on the Crown to prove beyond a reasonable doubt the aggravating fact that Rochon-Frosk caused the rib fractures to Baby L by squeezing her chest out of a fit of frustration when she would not stop crying. [ 48 ] In this case, the Crown relies on Rochon-Frosk’s own admission during his June 24, 2014 statement, an admission Rochon- Frosk now says is a lie. In considering and weighing the evidence in accordance with the principles enunciated in R. v.

W.(D.) , this Court finds that the Crown has proven this aggravating fact against Rochon-Frosk beyond a reasonable doubt. [ 49 ] Rochon-Frosk asks this Court to extract one admission out of many made to the police on June 24, 2014.

He says that his oral evidence should be preferred for several reasons, which can be summarized as follows: • His oral evidence was given under oath and is more reliable and consistent with the medical evidence; • His June 24, 2014 admission was a mere parroting of the suggestions provided to him by the police, when his will waned as a result of the lengthy and difficult interrogation. [ 50 ] This Court does not accept these submissions. [ 51 ] Generally speaking, Rochon-Frosk has demonstrated that he is prepared to withhold vital information about serious incidents even when a baby’s well-being is at stake.

There is, in fact, a notable difference between his positive action over more minor accidental occurrences, where blame cannot be ascribed to him, such as the change table incident, and his concealment of much more serious events caused by his own actions, such as throwing Baby L in the air or dropping her to the ground. [ 52 ] Rochon-Frosk says that his lack of disclosure is a result of his fear of losing Baby L to Child and Family Services, and his own shame, but it is noteworthy that not only did Rochon-Frosk conceal the events when he hoped that no serious harm would come to Baby L, he also concealed them when her life likely depended on his frankness.

Further, he continued to conceal them when it was no longer a question of losing Baby L, but rather, a question of proving criminal allegations against him. All of these omissions were clearly designed to protect Rochon-Frosk and his own interests. [ 53 ] The timing and nature of Rochon-Frosk’s admissions to the police are significant. Not only were those admissions made the second time police interrogated him, they were made several hours after that interrogation, and in a piecemeal fashion after first having reassured the police that he had nothing to hide and did nothing to Baby L.

Further, the admission as to the broken ribs came in between two admissions Rochon-Frosk says are true. His argument, therefore, that he said anything just to finish the interview is inconsistent with the veracity of the subsequent admissions. [ 54 ] It is also important to note that his argument that he parroted the police’s suggestions to end the interview is difficult to accept. Indeed, while the police do suggest that Rochon-Frosk must have felt alone, tired and frustrated with a newborn baby, the suggestion put forth is one of shaking Baby L, not holding her around the ribs and squeezing.

And although some words used by Rochon-Frosk in his confession are similar to those used by the police in their suggestions, for example ‘snapped’, it is noteworthy that those suggestions did not include significant details provided by Rochon-Frosk, such as his description of telling Baby L to “shut up” or yelling “fuck” in response to her incessant crying. [ 55 ] It is also important that in relating the two incidents of squeezing Baby L’s ribs, Rochon-Frosk provided relatively fulsome detail about them, giving them an air of reality. [ 56 ] Over and above these issues, however, Rochon-Frosk has provided inconsistent evidence.

This Court noted, in particular, the very different version of events of the change table incident acted out during his two statements. Whereas in his May 26, 2014 statement, he demonstrated holding Baby L in his arms with her head supported in the crux of his arms, his June 24, 2014 version has him holding her around the ribs, not only a mechanism consistent with that required to cause rib fractures, but also a position where Baby L’s head is not being supported. [ 57 ] His oral evidence also presented with several difficulties.

For example: • Despite presenting evidence and testifying that he has taken care of babies in the past and acknowledging they are fragile and need to be treated with care, he failed to explain how it is he thought it appropriate to throw her in the air at such a young age when her neck still was not stable, focussing his answer instead on how high he actually threw her. Then, when caught in a discrepancy between his oral evidence and his June 24, 2014 statement about that evidence, he suggested that there must be some confusion and then offered further evidence which differed from his earlier oral evidence.

When this change in evidence was pointed out to him, he stated “Well, I’m just trying to over-exaggerate”; • When the inappropriateness of dancing around the house with Baby L was pointed out to him, Rochon-Frosk defended himself, saying that he had his hand up her back, presumably to support her neck, an appropriate action but one that is in direct conflict with his position that he was seemingly unaware that Baby L should not have been thrown in the air;

• When further cross examined about the dancing incident, Rochon-Frosk added another detail not previously provided, that being that he lost his balance, rather than that he simply got too close to the wall, the explanation he previously provided; • When questioned about his guilty plea to the assault causing bodily harm, Rochon-Frosk purported to not really have paid attention to it, stating “I don’t think I was lying intentionally” and “sometimes I would just say yes to keep it going”; • When questioned about the extent of the detail he provided regarding the two incidents where he squeezed Baby L’s ribs, Rochon-Frosk testified “I was just trying to go with the timelines I remembered them talking about the injuries” and yet he purports to be otherwise confused, under duress, suggestible, and not thinking clearly. [ 58 ] This Court acknowledges that Rochon-Frosk found himself in a very difficult situation when he was being interviewed by the police; he had never been in this type of situation and his world was coming crashing down around him.

The stress and the impact on him were significant. This Court also acknowledges that the interviews, particularly the June 24, 2014 statement, were lengthy and at times the investigative techniques were aggressive.

That said, this Court noted the following: • Rochon-Frosk admits that his statement was voluntary, meaning that he concedes, and properly so, that the police did not make any threats or inducements, exert an atmosphere of oppression or trickery, and that he had an operating mind at all times; • His oral evidence in direct was instructive in this regard as he commented on noticing how the police were using different investigative techniques, going so far as to splice a video of his husband, which he noticed because he was wearing a different sweater, or putting an undercover officer in his cell.

This evidence connotes a relatively significant awareness of what was going on during the interrogation but also an ability to control himself; • Though Rochon-Frosk says that he did not know what his legal rights were and alleges he did not eat or drink or go to the washroom, it is clear that not only was he provided with those opportunities, he asked for them himself; • Although Rochon-Frosk testified to feeling alone, uncertain of his legal rights, and worried about his spouse, he does admit that his revelations to the police about what happened are, for the most part, true.

Further, the quality of those admissions are fulsome and qualitatively significant particularly with respect to the timing. Whereas for the first squeezing incident Rochon-Frosk could not remember the exact day of the week, he did for the second incident, noting that it was near the end of the week, probably the Thursday. It is noteworthy that the date of injury determined by the medical specialists was not precise; • It is also noteworthy that the only time Rochon-Frosk says he lied was in relation to the broken ribs to ensure the interview came to an end.

And yet, when the interview continued, after his admission, his evidence is that the remainder of his answers to questions, to which no criminal liability could attach, were also true. [ 59 ] The admissions themselves are also significant in that they are consistent with the mechanism of injury required to cause the rib fractures sustained by Baby L. While this Court does note that Dr.

Bodnarchuk made several concessions in response to suggestions by defence counsel about other types of injury that could have resulted in injury, many of those suggestions were hypotheticals with no evidentiary foundation. [ 60 ] For all of these reasons, this Court does not accept Rochon-Frosk’s position that he was lying to the police in his June 24, 2014 statement when he told them he squeezed Baby L’s ribs out of frustration because she would not stop crying. His evidence is neither believable nor does it raise a reasonable doubt.

This Court is satisfied based on the evidence as a whole, that the Crown has proven beyond a reasonable doubt, the aggravating fact that Rochon-Frosk squeezed Baby L’s ribs out of frustration. “Original signed by” MARTIN, P.J.