R. v. ROCHON-FROSK, 2017 MBPC 14

CITATION: R. v. ROCHON-FROSK , 2017 MBPC 14 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: HER MAJESTY THE QUEEN ) S. Thomas ) for the Crown ) - and - ) ) ) DANIEL ROCHON-FROSK ) K. Bueti ) for the Accused ) ) ) ) Reasons for Decision delivered: ) March 21, 2017 MARTIN, P.J. Introduction [ 1 ] On December 22, 2015, Daniel Rochon-Frosk (“Rochon-Frosk”) pleaded guilty to assault causing bodily harm contrary to

section 267 of the Criminal Code and failing to provide necessaries of life contrary to

section 215 of the Criminal Code . The background to those guilty pleas is set out in my earlier decision on the factual findings to the assault causing bodily harm. (See: R. v. Rochon-Frosk, 2016 MBPC 73 ). [ 2 ] The issue for this Court is to determine the appropriate sentence for those offences. [ 3 ] The Crown submits that a global sentence of six years is required.

She says that individually, the sentence should be four years for the assault causing bodily harm and a consecutive sentence of three years for the failing to provide necessaries of life, reduced to six years on the principle of totality. [ 4 ] Defence submits that these offences should not attract a penitentiary sentence. She says that a concurrent sentence in the range of a suspended sentence, or alternatively, an intermittent sentence or a custodial sentence of eight months or less is appropriate for the assault causing bodily harm.

As for the offence of failing to provide necessaries, she submits that a conditional sentence order in the range of nine to twelve months or a custodial sentence in the range of six to nine months, followed by a period of probation of up to three years is appropriate. Sentencing Principles [ 5 ]

Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute… to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.”

[ 6 ] Where the offence involves the abuse of a child, the primary objective of the sentence is denunciation and deterrence ( sections 718.01 and 718.2 (ii.1) of the Criminal Code ). The sentence must however be proportionate to the gravity of the offence and the degree of responsibility of the offender (

section 718.1 of the Criminal Code ). Aggravating and mitigating factors must be taken into consideration in making that assessment. Offences against children and offences where the offender abused a position of trust or authority in relation to the victim are aggravating factors (

section 718.2 (ii.1)(iii) of the Criminal Code ). [ 7 ] The court must also ensure that the sentence imposed is consistent with similar sentences imposed on similar offenders for similar offences committed in similar circumstances. As well, where consecutive sentences are imposed, the court must ensure that, combined, they are not unduly long or harsh ( sections 718.2 (

b) and 718 (

c) of the Criminal Code ). [ 8 ] With these sentencing principles in mind, I turn to a consideration of the matter before this Court. Circumstances of the Offences [ 9 ] On April 11, 2014, Baby L was adopted by Rochon-Frosk and his husband. She was a healthy four week old baby with no underlying medical condition. On May 24, 2014, six weeks after coming into their care, an ambulance was called as Baby L had stopped breathing.

She was admitted to the hospital that same day with the following injuries and presentation: • Rib fractures, namely: o Fractures to the posterior medial aspects of the right 6 th and 7 th ribs and the posterior lateral aspect of the left 6 th 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 of the fibula. [ 10 ] With the exception of the skull fracture, which was unable to be dated, all of Baby L’s injuries were determined to have occurred after Baby L was adopted by Rochon-Frosk and his husband and while 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 6 th and 7 th ribs; • At six weeks of age, or within two weeks of being adopted, leg fracture; • At seven weeks of age, or within three weeks of being adopted, rib fracture to the left 6 th 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 eight to nine weeks of age or on the day the ambulance was called. [ 11 ] The medical practitioners at the Child Protection Centre at the Children’s Hospital opined that Baby L’s “injuries are all consistent with applied trauma both direct blunt force and acceleration-deceleration injuries, as well as changes associated with hypoxia”. [ 12 ] Rochon-Frosk accepts responsibility for these injuries, with the exception of the broken leg.

As there is no evidence before this Court as to how Baby L sustained this injury nor as to who caused it, I am told by counsel that I am not to take it into account. The Offence of Assault Causing Bodily Harm [ 13 ] Rochon-Frosk’s guilty plea to the charge of assault causing bodily harm relates to two different types of injury – the broken ribs and the brain injury. [ 14 ] As noted previously, Baby L suffered broken ribs on two different occasions. The first such occasion was when Baby L suffered fractures to her right 6 th and 7 th ribs, at five to six weeks of age.

The second occasion was when Baby L suffered a fracture to her left 6 th rib at seven weeks of age. I found as a fact that those injuries were caused as a result of Rochon-Frosk’s frustration with Baby L when she would not stop crying and he squeezed her around her ribs. ( Rochon-Frosk , supra ). [ 15 ] As regards the brain injury, the evidence before the Court is that Rochon-Frosk admits to having thrown Baby L several feet in

the air on approximately twelve different occasions when she was between five and eight weeks old. The medical evidence is clear that action would have caused an acceleration-deceleration type injury. However, there is no definite evidence that is the sole cause of that injury. Indeed, there is other evidence that Rochon-Frosk also danced around with Baby L in his arms when she was eight to nine weeks of age and that the movement described by Rochon-Frosk could have resulted in that same acceleration-deceleration type injury.

Counsel have advised this Court that the brain injury caused by the dancing does not form part of the guilty plea to the assault causing bodily harm, but that it can be considered with respect to the count of failing to provide necessaries of life. The Offence of Failing to Provide Necessaries of Life [ 16 ] Rochon-Frosk’s guilty plea to the charge of failing to provide necessaries of life relates to both his improper handling of Baby L, and his failure to either disclose injuries or symptoms suffered by Baby L or seek appropriate medical treatment for her.

The evidence before the Court is that on or about May 15, 2014, Rochon-Frosk was dancing around with Baby L in his arms when he knocked her head on the corner of a wall and dropped her several feet onto a tiled floor. On three separate occasions subsequent to that incident, Baby L would cry, arch her back, straighten her limbs then go limp.

She also began vomiting and experiencing loose stools several times a day. [ 17 ] Despite the severity of the symptoms, which were seizure-like in nature, 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 an intolerance to her formula. [ 18 ] 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, the ultimate admission not occurring until June 24, 2014, more than one month after the incidents.

Victim Impact [ 19 ] The impact to Baby L has been significant and life altering. After her admission to the hospital on May 24, 2014, Baby L remained hospitalized for over a month and has required several surgeries. Due to the extent of her injuries, she requires the assistance of a large medical team comprised of neurologists, occupational therapists and physiotherapists. When she was chronologically at the age of two, she was only functioning at the approximate age of five months. [ 20 ] She has suffered significant physical and cognitive delay, and continues to experience seizures.

She is unable to walk, sit or hold her head up for long periods of time without support. She is unable to eat without choking and requires a feeding tube. Two surgeries were required to insert and secure the feeding tube. Her eye sight continues to deteriorate to the point that it is feared that she will go blind. Her hearing is impaired and she is still unable to speak. She has difficulty with memory retention. She is overly sensitive to noise, and has difficulty adjusting to any change. She requires constant medical attention. [ 21 ] From a financial perspective, the cost to care for Baby L is significant.

She requires Level 5 funding to ensure adequate care and specialized medical equipment. The current daily per diem funding rate through the Province is $281.02. The monthly cost for syringes, catheter adapters, mic-key and other supplies are billed in excess of $300/month. The cost of her special space seat is $566.58 and her special walker and specialized stroller, $577.79.

In addition, she requires a specialized learning table at a cost of $196.21, a chair lift at a cost of $14,500.00, an “H track” to lift her out of bed at a cost of $9,780.00, slings to assist with bathing at a cost of $530.00, a Hi-lo seating system at a cost of $8,200.00, a specialized crib in the range of $10,000-$15,000 dollars, as well as additional costs to modify the foster parents’ vehicle and provide for medical expenses not covered by medicare. [ 22 ] The impact of Baby L’s injuries on her daily functioning is poignantly set forth in the victim impact report provided by her foster parents: EMOTIONAL IMPACT The emotional distress that [Baby L] has suffered as a consequence of her injuries in 2014 affect her development and is projected through various current disabilities such [as]: MEMORY RETENTION AND LEARNING DISABILITIES. [Baby L] has difficulty retaining information. [Baby L] may be able to recognize verbal directions of instruction one day but she will no longer remember them by the next day.

This intellectual impediment holds and delays her normal development tremendously and [Baby L] may never be able to catch up to her chronological age. DISABILITY TO ADJUST TO CHANGE. Unlike other children her age, [Baby L] is upset by the slightest change to her daily routine. The smallest change stresses her out, becoming tense and restless. [Baby L]’s tension and stress causes her body to arch back and close her hands tightly in the form of fists.

Unexpected small changes in [Baby L]’s routine such as a late feeding session, or a late bed time, can affect her metabolism to a point of causing constipation for several days, rashes and lack of sleep. Some areas of [Baby L]’s body seem to shut down when she is exposed to change. HYPERSENSIBILITY TO NOISE. [Baby L] is hyper sensible to ordinary day to day noises such as steps approaching, phone ringing, a door opening, etc.

Her hyper sensitiveness causes her to get scared, cry or even “freeze” after the noise occurs. [Baby L] is particularly terrorized by the sound of emergency vehicle sirens down the street. [Baby L] is able to relax until an adult comforts her and embraces her. SPEECH IMPAIRMENT. At the age of almost 2, [Baby L] is unable to articulate or say one single word. [Baby L] tries to mimic when she is spoken to from close range, but only gets as far as moving her lips, no words. PHYSICAL IMPACT

Looking after [Baby L] requires an extensive amount of care, energy and dedication. [Baby L]’s lack of mobility and her need for continuous physical support with even the smallest tasks, make her totally dependent on others for survival. Today, [Baby L] struggles with countless mental, metabolic and physical disabilities. [Baby L] is destined to live with her disabilities and challenges for the rest of her life, with the aggravating imminent risk of new health complications and impediments arising as she gets older.

The criminal actions and/or omissions that [Baby L] was subject to in 2014 have had a direct physical impact on [Baby L] causing her to live with severe physical disabilities that include: LACK OF MOBILITY. The right side of [Baby L]’s body is weak and irresponsive for the most part. She cannot reach out with her right arm, let alone grab. [Baby L] is unable to use her right leg to support or push herself. Her right ankle presents some deformation resulting from fractures she suffered. The imbalance between the left and right side of [Baby L]’s body affect her mobility skills.

INABILITY TO SIT UP, CRAWL AND RISK OF UNABILITY TO WALK. [Baby L] has muscle tone issues, she is almost 2 years and today she cannot sit up right or crawl. [Baby L] requires someone to support her body at all times when trying to sit up, but her upper body simply gives in and falls forward over her legs. Today, little [Baby L] is confined to spend her days either strapped to a tumble chair or laying down on a mattress. [Baby L] can only try to reach for toys when she is laying down, this is a big task for her and she experiences great frustration when her attempts to reach a toy fail.

The connection between [Baby L]’s brain and her motor skills is visibly out of sync and [BABY L] MAY NOT EVER WALK. INABILITY TO EAT OR DRINK. [Baby L] is unable to eat or drink anything through her mouth (she chokes). The only way [Baby L] can be fed to survive is through a tube directly attached to her stomach. [Baby L] is fed only formula four times a day through the tube. [Baby L] can smell food and crave it, but not dare to taste it. [Baby L] tries to reach out for food with her good arm when she smells it, but a tiny bite or small sip of liquid can dangerously choke her.

In fact, [Baby L] often chokes when she swallows her own saliva and requires immediate assistance when it occurs. IMPAIRED VISION. [Baby L] is nearsighted and was prescribed eye glasses when she was only 6 months old. Unfortunately, [Baby L]’s vision has deteriorated substantially in the past year and her eye prescription nearly doubled in November 2015 to an alarming value of -11.0 for each eye.

We live in fear that if [Baby L]’s vision continues to deteriorate at the same rate, soon there may not be a prescription that helps her see. [Baby L] wears a strap around her head all day to keep her eye glasses in place. Even with her glasses on, we see [Baby L] struggle with her focusing and precision. IMPAIRED HEARING. [Baby L]’s hearing has also been affected. [Baby L] experiences a deficiency in one of her ears. We understand that nothing can be done at this time to correct it.

DEPENDENCE ON ANTI-SEIZURE MEDICATION. [Baby L] suffered seizures as a result of her injuries and we are advised that she is vulnerable to seizure reoccurrence any time. [Baby L] is under anti-seizure medication since she left the hospital and the medication is administered mixed with formula twice daily through [Baby L]’s feeding tube. [Baby L] is monitored in all areas of our home 24/7 through cameras and monitors so she can receive assistance immediately should seizures reoccur.

DROOLING. [Baby L] cannot control or manage her face and lip muscles to keep her saliva contained. [Baby L] drools constantly and more intensely when stressed or frustrated and while attempting difficult tasks such as reaching out for a toy. [Baby L] wears a bib permanently. SOCIAL IMPACT AS A TODDLER, [Baby L] should spend her days playing and learning new things as part of her development. Instead, she is forced to spend her days going to doctors’ appointments, assessments, tests, follow ups and different kinds of intense therapy sessions.

By the time [Baby L] returns home from therapy sessions and appointments, she is exhausted and with little or no energy or desire for playing and learning. The effects of [Baby L]’s injuries have clearly impacted her social development. [Baby L] is a large child, and as she gets bigger and older, her disabilities become more visible obvious. Today [Baby L] wears size 6 diapers and at this point we are uncertain whether [Baby L] will ever be able to potty train. [Baby L]’s medical condition and her busy

schedule with doctors and therapists limit her social contact with other children her age, an essential social factor that [Baby L] is missing out in her personal development.

ADDITIONAL COMMENTS . [Baby L] has been deprived forever of the basic simplest things life has to offer, left with an uncertain future filled with numerous challenges for life as a result of her injuries. [Baby L] may never be able to taste a piece of her own birthday cake, or be able to say a prayer before bed, or say “I love you mommy” or “good night daddy”, she may never be able to actively play with other children, go to school, work, have relationships, etc. For now, [Baby L] and us take it one day at the time, and we continuously pray for her for a second chance in life.

Circumstances of the Offender [ 23 ] Rochon-Frosk is a 41 year old man who comes before this Court without any history of criminal involvement. He is a university-educated man who has led a pro-social life. He has a large and supportive family, with many members who live within very close proximity to him and his spouse. In fact, the evidence before this Court is that Rochon-Frosk’s mother and sister were frequently assisting him with Baby L. He has been in a long-term relationship with his spouse, who continues to stand by him.

He has also held long-term stable employment. [ 24 ] Over twenty-five letters of support from both family members and co-workers, express disbelief over the criminal charges laid against Rochon-Frosk. Those individuals state that they have never seen Rochon-Frosk exhibit any signs of aggressiveness, violence, or cruelty. To the contrary, they describe him as always kind, gentle and patient with children, having taken care of babies and young

children in the past. [25] Dr. Kent Somers was retained by Rochon-Frosk to conduct a risk assessment for future criminally violent behavior and to makerecommendations as to interventions or formal supervision strategies that might be required to mitigate any such risk. It is Dr. Somers’opinion that Rochon-Frosk is generally a well functioning, highly intelligent individual that is a low risk to re-offend: Mr.

Rochon-Frosk’s inattentiveness to the needs of the infant in his care, particularly given that he was the only one with knowledge ofthe nature of the injuries that she incurred, albeit by accident, in mid-May of 2014, was egregious; however, his presentation inassessment was such that his actions were more credibly associated with his having stifled reporting of this accident out of fear (that oflosing custody of this child, or of future children, although ironically this has been the outcome of that decision) and acute anxiety ratherthan attributing his actions to his being motivated by malice (such as anger, jealousy, or resentment) toward the child or by callous andcavalier self-interest in the wake of her accident.

Mr. Rochon-Frosk knows full well the cost of his decisions at that time; his guilt,regret, and shame are genuine, and he is likely to remain mindful on a daily basis of the consequences of those decisions, in his own lifeat least, for the foreseeable future. [26] By all accounts, both through the letters of reference and Dr. Somers’ risk assessment, the charges before the Court areuncharacteristic of Rochon-Frosk. He has recognized the wrong he has done and the harm he has caused and has expressed remorse,regret and shame. The Law Assault causing Bodily Harm [27] Assault causing bodily harm is a hybrid offence.

In this case, as the Crown proceeded by indictment, the maximum sentence isten years. A conditional sentence order is not available for this offence as it resulted in bodily harm (section 742.1(e)(

i) of the CriminalCode). [28] The range of sentences imposed for assault causing bodily harm offences against an infant varies greatly. Not surprisingly, thedifference in sentence depends on the principle of proportionality, that is, the seriousness of the offence and degree of the offender’smoral blameworthiness. Sentencing Principles [29] Denunciation and deterrence are paramount objectives of sentencing in child abuse cases.

The reason for this is simple.Children are defenceless and highly vulnerable victims who suffer not only the immediate harm but also the long-term psychologicalconsequences that result from the infliction of that harm by the caregiver they look to for care, protection and love. The breach of trust insuch cases is profound. [30] As with all sentences, determining a fit and appropriate sentence for the offence of assault causing bodily harm against a childrequires that the fundamental principle of proportionality be respected.

In my respectful view, proportionality has not always been clearlyapplied or articulated in child abuse cases as a result of attempts by courts to categorize types of child abuse by the moralblameworthiness of the offender. Unfortunately, this offender-centric focus has, at times, led to insufficient weight being granted to theimpact to the victim and to the nature of the harm caused. [31] One of the first cases to categorize types of child abuse was R. v. Evans, (AB CJ), [1996] A.J. No. 233, 182A.R. 21 (ABPC).

In that case, the court reviewed the case law and determined that there were generally three types of child abuse whichcalled out for a range of sentence which corresponded to the offender’s moral blameworthiness: 8 The authorities seem to indicate that physical abuse cases generally fall into three distinct types: (1) cases involving the application of force with the expectation of causing injury or indifference to it. R. v.

Laberge (1995) 1995 ABCA 196 , 27 W.C.B. (2d) 176; (2) cases involving application of force where a parent was immature and unskilled and acting out of emotional upset, frustration ortemper and did not fully appreciate the serious injuries which might result. R. v. Marks (1994) 24 W.C.B. (2d) 606; (3) cases involving diminished responsibility through mental disorder where the abnormal mental condition of the accused requires thattreatment of the offender be given priority over the principles of general and individual deterrence (R. v. Hiltermann (1993) (AB CA), 141 A.R. 223) R. v.

Just. 9 The first situation involves a high degree of culpability usually requiring a severe sentence. The second situation generallywarrants punishment but nowhere near as severe as the first situation and generally includes probation requiring that the offender obtaincounselling to deal with his problems and provide him with proper parenting skills.

The third situation involves recognition that theaccused is not a normal person, but rather mentally disordered and that the normal principles of sentencing do not apply (excepting thepsychopathic who must be incarcerated until he has been successfully treated – See R. v. Brown, Alberta Court of Appeal, Appeal #9303-0141-A1). [32] As subsequently noted by the Alberta Court of Appeal in R. v.

Nickel, 2012 ABCA 158, subsequent decisions which relied onwhat has been referred to as the “Evans approach” have, at times, been led astray as they failed to properly apply all of the relevantsentencing principles: 25 We disagree with the Evans framework. While Arcand endorses careful and clear categorization of cases in certaincircumstances, it does not support the creation of just any sort of categorization that seems convenient. In particular, Arcand does not

support a categorization based almost exclusively on the mental state of the offender at the time the offence, as the approach in Evansseemingly advocates. 26 Categorization must be sufficiently clear and comprehensive to provide actual guidance. However, the emphasis on the state ofmind of the offender in Evans, particularly the centrality of immaturity and parenting error in the second category, overrides allsentencing objectives in s. 718 of the Code, aside perhaps from some consideration of rehabilitation.

That is not sufficiently responsive,particularly in light of s. 718.01, which requires a court to give primary consideration to the objectives of denunciation and deterrence. Italso oversimplifies the fact that conduct giving rise to child abuse can range from the nearly accidental to selfish, insensitive, reckless orcruel.

Some conduct may be contributed to by addictions and involve varying degrees of awareness, foresight, recklessness or ignorance.The Evans approach confines the assessment in a manner that cannot address these factors. 27 Further, Evans does not account for the caregiver’s degree of responsibility in any meaningful or logical way. Additionally, thecriteria directly ignore the gravity of the offence, both as to its characteristics and consequences.

In this way, it limits the degree ofresponsibility of the offender and ignores the proportionality principle. 28 For these reasons, we find the categorization in Evans to be unsound and we reject it. [33] In my view, the decision in Nickel is consistent with the law across the majority of the country. Although some jurisdictions stilluse the Evans approach as a guideline, the case law is clear in those jurisdictions that all sentencing principles must be applied (See: R. v.D.B., 2013 QCCA 2199; R. v. C.R., 2014 QCCA; R. v. Gagné, 2014 QCCQ 1019).

In other jurisdictions, Evans has not been endorsedalthough at times it has been referred to (See: R. v. Bowden, 2015 NSPC 13; R. v. D.M., 2012 ONCJ 478; R. v. McCauley, [2007] O.J.No. 1593, 2007 CarswellOnt 2551, ). [34] A review of the case law in Manitoba indicates that there are no reported cases where Nickel has been considered. The currentcase law in Manitoba suggests an approach similar to that in Quebec, namely that if the Evans approach is considered by the sentencingjudge, it is only to be used as a useful guide, not to displace other sentencing principles.

This position was noted before Nickel in the caseof R. v. McDonald, 2009 MBCA 36: 14 In R. v. Marks (1994), (NL CA), 91 C.C.C. (3d) 421 (Nfld. C.A.), and R. v. McNeeley, [1995] O.J. No. 4371(Gen.

Div.) (QL), it was held that there are three categories of child abuse: (1) cases involving the application of force with the expectation of causing injury or indifference to it; (2) cases involving the application of force where a parent was immature and unskilled and acting out of emotional upset, frustration ortemper and did not fully appreciate the serious injuries which might result; and (3) cases involving diminished responsibility through mental disorder where the abnormal mental condition of the accused requires thetreatment of the offender to be given priority over the principles of general and individual deterrence.

This analysis provides a useful guide, but its application cannot, of course, displace the sentencing principles by which judges are bound,including that which requires a sentence to take into account the gravity of the offence. [emphasis added] (See also R. v. Wolonciej, 2011MBCA 91) Parity [35] Given the state of the law, it is important to review the sentencing case law with all appropriate sentencing principles in mind. [36] In R. v. Marks, [1994] N.J. No. 241, (NLCA), a 21 year old offender without a prior record pleaded guilty toassault causing bodily harm against his twenty-five day old baby.

The offender admitted to having caused injury to his baby that wasconsistent with shaken baby syndrome. At the sentencing hearing, the Crown and defence both relied on a 1994 decision where anoffender was sentenced to eight months of incarceration. Crown counsel requested a similar term of incarceration which the sentencingjudge ultimately imposed. The Crown later appealed that decision, taking the position that the sentence imposed was inadequate.

TheCourt of Appeal upheld the sentencing decision commenting that the accused had pleaded guilty to the offence on the clearunderstanding that the Crown would only be asking for a sentence within that range. The Court of Appeal also commented that in thatparticular case, not only did the injuries occur within a very short period of time and likely as a result of the frustration of the accused, asshaken baby syndrome was a recently recognized mechanism of injury, it could be concluded that the accused did not fully appreciate theserious injuries that could and did result from his actions.

Marks is a precursor case to Evans that proposed two categories of child abuse.Although the court allows for a categorization of child abuse, it clearly indicates that the Criminal Code sentencing principles still needto be applied. [37] In R. v. Bowden, 2015 NSPC 13, a 40 year old accused slapped his six week old son across both sides of the face causing severehead injury, including permanent brain damage and visual impairment. The accused had a prior but dated and unrelated record.

The courtnoted that the accused was not a young first time parent but indicated that the assault causing bodily harm was as a result of a singleincident. It is noteworthy that the accused admitted to his actions within a very short period of time after the baby had been admitted tothe hospital and that the Crown proceeded summarily. The court imposed eight months of custody followed by two years of probation. Itdid not apply the Evans approach. [38] In R. v.

D.M., 2012 ONCJ 478, a 32 year old offender without a criminal record was found guilty of assault causing bodily harmto an infant within the first thirty days of its life. The infant suffered several fractures to its ribs and legs, though there was no evidence asto whether this occurred on a single occasion or over a period of time. The injuries were inflicted out of what the court inferred to be

criminal recklessness as the accused failed to appreciate the force of his handling of the infant. The accused had a positive pre-sentencereport with no obvious risk factors. The court commented that a sentence in the range of twelve to twenty-four months of custody wouldbe appropriate. It imposed a sentence of twelve months of custody followed by two years of supervised probation. The court did not usethe Evans approach. [39] In R. v. McCauley, [2007] O.J.

No. 1593, , 2007 CarswellOnt 2551, a 23 year old accused was sentenced totwelve months of custody for aggravated assault as a result of having shaken her baby which caused brain injury. The offender camefrom a troubled background, suffered poor impulse control and depression and low normal intelligence. The court imposed a twelvemonth sentence followed by three years of probation commenting, however, that but for the offender’s youth and her attention deficithyperactivity disorder, a more severe sentence would have been warranted.

The long-term prognosis for the infant victim was optimisticand all indications were that the infant was meeting all developmental milestones. The court did not use the Evans approach. [40] In R. v. Hardwood-Jones, 2010 MBQB 8, a 30 year old offender was convicted of aggravated assault against his four month oldson. Hardwood-Jones vigorously shook his son on several prior occasions then, intentionally dropped him onto the floor. The infantsuffered brain injury but fully recovered. The offender had no prior criminal record but had a dysfunctional background and sufferedfrom depression and substance abuse issues.

The court sentenced Hardwood-Jones to eighteen months of custody followed by three yearsof probation, commenting that this was the lowest sentence that would respect principles of denunciation and deterrence. The court didrefer to the Evans approach but also applied the other principles of sentencing. [41] In R. v. M.J.S., 2006 ABCA 176, the 32 year old offender assaulted his three month old son causing him bodily harm bybreaking his ribs on twelve occasions and breaking his legs over a period of three months. The offender accepted responsibility for hisactions and expressed remorse.

The offender’s actions were unintentional and due to a lack of parenting skills and ignorance aboutappropriate treatment of a child of that age. The offender came before the court having suffered trauma in his childhood due to sexualvictimization. He had anger management difficulties. He was assessed as a low to moderate risk to reoffend. The Alberta Court of Appealreduced the sentence of two years less a day to eighteen months given the sentencing judge’s error as to the characterization of themotivation behind that assault.

The Alberta Court of Appeal noted that while the offender’s conduct was repeated over the span of twomonths there was no element of punitive violence or inappropriate discipline and no actual intention or foresight by the accused as to thepossible consequences of his actions. In this case, the Court of Appeal endorsed the sentencing judge’s use of the Evans approach. Itsendorsement was overturned in Nickel. [42] In R. v.

Sharpe, 2010 ABQB 576, a 33 year old offender with no prior record committed an aggravated assault against his sevenmonth old infant by throwing him into the air three or four times on one occasion causing him to suffer an acceleration-deceleration typeinjury. The offender did not intend to injure the infant. At the time of the sentencing, the infant was reported to be doing well. Theoffender was of low to average intelligence with a significant history of childhood instability.

He was a medium risk to re-offend.Although the offender immediately contacted the mother of the infant to advise of the infant’s symptoms, he did not acknowledge hisactions until a week after the incident when he was interviewed by the police. Crown counsel submitted that a sentence of three yearsincarceration was appropriate.

The court imposed a sentence of two years less a day conditional sentence order, acknowledging thatalthough assault causing bodily harm and aggravated assault offences against children call for primary sentencing objectives ofdenunciation and deterrence, this particular offender did not need to be incarcerated to accomplish those purposes. The Evans approach isnot specifically mentioned but the case law endorsing it is referred to. It is also noteworthy that the date of the offence was in 2007 whenconditional sentence orders were still available. [43] R. v.

C.G.O., 2012 BCCA 129 was a sentencing that took place in the context of a First Nations court where the sentencingprocess is called the “Healing Plan”. The offender pleaded guilty to aggravated assault and failing to provide necessaries of life inrelation to her three year old niece for offences that took place in October 2007, when conditional sentence orders were available. Theoffender shook the child out of frustration, then placed her in a scalding bath which caused extensive burns to her entire body. She latershook the child a second time to wake her up.

She was not taken to the hospital until three days later where she was found to have severehead injury and extensive burning which caused devastating and life-long sequelae to the child who had lost all mobility and speechpermanently, requiring twenty-four hours specialized care and frequent medical intervention. The aboriginal offender had no priorcriminal record but presented with significant Gladue factors. The court imposed a two year less a day conditional sentence orderfollowed by three years of supervised probation.

The Court of Appeal dismissed the sentence appeal, the majority finding that while itwas not a fit sentence, it should not be interfered with given the Gladue factors and the support system that had been put in place toadvance the offender’s rehabilitation. [44] R. v. Habib, [2000] O.J. No. 3036, is a case where the offender received a two year less a day conditionalsentence order followed by three years probation for having committed an aggravated assault against an eighteen month old baby.

Thebaby suffered brain injury, a skull fracture and serious injuries to her eyes as a result of what was known as shaken baby syndrome.

TheCourt of Appeal noted that the appropriate sentence range for an aggravated assault conviction involving shaken baby syndrome wasbetween three to five years, but that in rare or exceptional cases a two year less a day conditional sentence order could be appropriate.The Court of Appeal found this to be a rare exceptional case given the lack of prior record of the offender, the glowing pre-sentencereport, the immediate actions taken by the offender when it became apparent that the child needed medical attention and the significantrecovery by the child from her injuries.

The court did not apply the Evans approach. [45] In R. v. Bourgeois, 2001 ABPC 155, a 21 year old accused, with a previous record for anger-related convictions, pleaded guiltyto aggravated assault for having kneed a three year old child in the stomach several times to stop him from crying. The accused didnothing to address the child’s injuries until the child’s mother returned home. The child suffered a partially collapse lung, inflamedpancreas, damage to the bowel, severe abdominal bruising, as well as bruises to the face, arm, chest and back. The accused wassentenced to four years imprisonment.

He had suffered a dysfunctional upbringing which resulted in psychological and psychiatricproblems. He was assessed as a low risk to re-offend. The court did not apply the Evans approach. [46] In Nickel, supra, the accused pleaded guilty to one count of aggravated assault and one count of failing to provide necessaries oflife. The facts behind the guilty plea to the aggravated assault were that the offender placed his nine month old baby’s feet in a pot ofwater that had just been used to boil and sterilize the baby bottles and nipples, causing the baby to suffer third degree burns. The offender

covered up the baby’s injuries and then lied to the mother about their cause. In addition to the burns, the baby suffered social-emotional and communication delays and was at risk of long-term related difficulties, post-traumatic stress disorder and persistent physical difficulties with walking. The offender had no prior record and was described as being of average intellectual ability. His actions were considered to be as a result of wilful blindness. The Court of Appeal substituted a three year custodial sentence.

As noted previously, the Court of Appeal reconsidered the Evans approach and rejected it. [ 47 ] In McDonald , supra , the offender pleaded guilty to three counts of assault causing bodily harm for having broken eight, four and seven broken ribs of his triplet sons. The accused had no prior criminal record and suffered from post-traumatic stress disorder as a result of having served as a member of the military in Afghanistan. The Manitoba Court of Appeal found the offender’s moral culpability to be extremely high. It imposed a sentence of three years of custody.

As noted previously, the Evans approach was used but together with a full application of the sentencing principles. [ 48 ] Wolonciej , supra , dealt with a case of aggravated assault committed out of frustration when the offender squeezed his son’s ribs, breaking eight of them. The accused had no prior record. The Court of Appeal substituted a sentence of eighteen months incarceration. As mentioned previously, the court applied the Evans approach but with a full application of the sentencing principles.

Failing to Provide Necessaries of Life [ 49 ] Subsection 215(2) (a)(ii) of the Criminal Code makes it an offence for someone to fail to provide necessaries of life to a child under the age of sixteen years when they are under a legal duty to do so as a parent, foster parent or guardian. As the Crown proceeded by indictment, the maximum sentence under

section 215 is a period of five years of imprisonment. There is no mandatory minimum sentence. A conditional sentence order is available for this offence. Sentencing Principles [ 50 ] Failing to provide necessaries of life is an offence for which the paramount sentencing principles are denunciation and deterrence. In determining the gravity of the offence, the court should consider the duration of the offending conduct, the nature of the injury to the victim and the age of the victim. ( R. v. Guimond, 2010 MBPC 33 , paragraph 11 ) Parity [ 51 ] In R. v.

J.M.B. , 2005 NLTD 121 , the mother of a two month old infant waited two days to seek medical attention for her baby despite noticing injury and behaviour indicative of serious injury, and despite the insistence of both friends and family. The sentencing judge commented that J.M.B.’s actions were cowardly, callous and selfish as the offender feared that she might be blamed for the baby’s injuries. J.M.B. was sentenced to nine months of custody followed by eighteen months of supervised probation.

The sentencing judge refused to grant a conditional sentence order, commenting that it would not meet the principles of sentencing. The injuries sustained by the infant were permanent and life threatening. It was also determined that had the mother sought medical attention earlier, there was a possibility of a better prognosis for the child. [ 52 ] In R. v Campbell , 2005 CarswellOnt 4871 , [2005] O.J. No. 3642 , the accused had left his eighteen month son unattended and the child fell from the third floor window.

The accused received a one year conditional sentence order followed by one year supervised probation. [ 53 ] R. v. Guimond , supra , dealt with the case of a 55 year old aboriginal offender with significant Gladue factors who in a momentary lapse of judgment, placed her two year old in a situation where it was objectively foreseeable that he could fall down the stairs and suffer serious harm. The two year old died as a result of the fall. Guimond was sentenced to a two year less a day conditional sentence order followed by three years of supervised probation. [ 54 ] In R. v.

M.(L .), 2012 NSSC 250 , the accused received a one year conditional sentence order followed by two years of supervised probation for failing to provide necessaries of life to their three week old child. The child had suffered seizures, difficulty breathing, bruising, a skull fracture, hematomas and hypoxic ischemia as a result of undetermined trauma three days prior to being admitted to the hospital.

The judge commented that given the unexplained origin of the trauma to the child, the accused, at law, had a lower degree of culpability and could only be held accountable for a temporary lack of supervision as opposed to a direct infliction of injuries. [ 55 ] In R. v. W.K. , 2012 ONCJ, a 38 year old deaf offender with no prior convictions was sentenced to nine months of custody followed by three years of supervised probation.

Through negligence, the offender dropped the child on more than one occasion, rolled over him while sleeping, then failed to seek prompt medical attention for the child even though he was uncertain of the nature of the child’s injuries. The infant suffered a partial skull fracture, brain bleeding and fractures to the ribs and legs as well as bruising of the perineum and buttocks. The offender demonstrated significant strength and community involvement despite his adversity. [ 56 ] In R. v.

Rosa , 2013 ONSC 6633 , the accused inflicted severe trauma on his seven week old son, causing permanent blindness and other disabilities. He did not seek medical attention for the baby until two and a half days later, withholding vital information from the doctors and lying about the cause of the trauma. The accused received a three and a half year incarceratory sentence for the offence of failing to provide necessaries.

The sentencing judge noted that the accused’s intentional infliction of harm, for which he was not otherwise sentenced for, aggravated his moral blameworthiness for failing to obtain medical assistance. The baby’s skull had been fractured from ear to ear. He had wide spread subdural hemorrhaging on the sides and top of his brain, brain swelling in both cerebral hemispheres, extensive retinal hemorrhaging in his left eye and soft tissue damage to his neck consistent with having been severely shaken. He also had seven rib fractures and four leg fractures.

As a result of the injuries, the baby was permanently blind and left physically disabled as well as significantly, cognitively delayed, and struggling with on-going seizures. [ 57 ] In R. v. M.D. , 2016 NLTD 159, the offender dropped his three year old daughter to a tiled floor. As the child began to exhibit symptoms of fever, vomiting, difficulties using her right arm and seizures, the offender dissuaded his wife from taking their daughter to the hospital for three days. The child suffered permanent brain damage and was determined to require constant and extensive medical care indefinitely.

The offender was sentenced to twelve months in custody followed by two years supervised probation. The sentencing

judge refused to impose a conditional sentence order, noting that it would not be consistent with the sentencing principles. [58] In Nickel, supra, where the offender was convicted of both aggravated assault and failing to provide necessaries, the Court ofAppeal substituted a six month custodial sentence for the latter offence, stating that the maximum was two years. The offender had noprior record. He made up a story about the origin of the injuries and then, for four days, dissuaded his wife from seeking medicalattention. This sentence was consecutive to the three year sentence for the aggravated assault.

Analysis [59] It is clear that the offences committed by Rochon-Frosk are extremely serious. Not only were they committed against a veryyoung baby, they were committed while Rochon-Frosk was in a position of trust, on several instances, over several weeks. [60] With respect specifically to the offence of assault causing bodily harm, the broken ribs were caused out of a fit of frustration ontwo separate occasions. The acceleration-deceleration injuries to the brain occurred to an unknown degree as a result of Rochon-Froskthrowing Baby L several feet in the air on twelve separate instances.

Though it is acknowledged that there was no malicious intentbehind those twelve throws, and that they occurred more from improper handling of the baby, Rochon-Frosk is an intelligent university-educated man and a frequent caregiver to his young nieces and nephews. As noted in Bowden at paragraph 23, “the vulnerability ofinfants is hardly an obscure fact to a person of average intelligence.” Any reasonable person would realize throwing a baby several feetin the air, especially at an age where they can barely hold their own head up, would be very likely to cause significant injury.

Rochon-Frosk himself has acknowledged the vulnerability of babies during these sentencing submissions. [61] With respect to the offence of failing to provide necessaries of life, Rochon-Frosk continued to treat Baby L improperly bydancing around with her even though by then he knew he needed to treat her more carefully as his husband had warned him about herweak neck muscles. And even though Rochon-Frosk dropped Baby L that day he was dancing with her, he never told anyone about iteven though he was worried he had injured her.

His silence continued for more than one month and only stopped after a second vigorousquestioning by police. During that time, Rochon-Frosk saw Baby L experience three seizure-like episodes, vomiting and loose stools,stop breathing and get rushed to the hospital and sustain multiple invasive tests. [62] Though I accept that Baby L’s injuries were not readily discernable to the human eye and that other than those three seizure-likeepisodes she appeared otherwise normal, it is clear that Rochon-Frosk had a sinking feeling that he had seriously injured Baby L and didnot want to confess.

It is true that he alerted his husband to Baby L’s symptoms but some of those symptoms were fleeting and otherswere seemingly consistent with more mundane ailments that affect babies, such that the sole mention of symptoms without disclosingwhat he had done to Baby L does little to nothing to mitigate his silence. [63] I recognize that Rochon-Frosk was afraid of losing a baby he so very much desired but that fear and cowardice put Baby L’s lifein peril even if we will never know if Baby L’s injuries would have been less severe if Rochon-Frosk had acted more quickly. [64] I acknowledge that Rochon-Frosk has accepted responsibility for his actions.

He is a pro-social individual with no prior record.It is clear from the tremendous support that he has received from friends, family and colleagues that he is loved. He is obviously a shy,soft-spoken man who has shown a great deal of compassion and care towards others, a man who is not, by nature, violent. However, hisactions and omissions towards Baby L are serious.

When I apply all the principles of sentencing, mindful that the paramount principlesare denunciation and deterrence, I find that nothing short of a penitentiary sentence is required. [65] For the offence of assault causing bodily harm, I impose a sentence of four years. In my view this sentence is consistent with thecase law from this province.

I note that all three cases from Manitoba provided to the Court involve the intentional infliction of harmwhereas in this case there is both actions as a result of frustration and simple improper handling, but the consequences of Rochon-Frosk’sactions are significantly more serious and they occurred on more instances and over a period of time. [66] For the offence of failing to provide necessaries, I impose a sentence of two years.

I recognize that this sentence is significantlyhigher than much of the case law submitted to this Court but I note that most of the cases that imposed a conditional sentence order werecases of insufficient supervision. Where lower custodial sentences were imposed, either the offender did not cause the injuries or causedthem entirely through negligence, or, in the case of Nickel, the court noted that the maximum sentence for failing to provide necessarieswas only two years and not five.

I also note that the offender in Rosa only waited two and a half days before seeking medical attention.The offender in Rosa received a three and a half year custodial sentence but the court relied on the intentional infliction of injuries as anaggravating factor. I am mindful that in this case, Rochon-Frosk is being sentenced separately for the assault causing bodily harm. [67] In my view, the count of failing to provide necessaries constitutes a separate and distinct offence such that it is to be servedconsecutively to the sentence for the offence of assault causing bodily harm.

The current offences are not akin to the robbery spree casesfrom our Manitoba Court of Appeal as suggested by defence counsel. As noted in R. v. D.C., 2016 MBCA 49 “sprees” are limited tocases of robberies committed over a short period of time to feed an addiction: The accused’s submission that the offences involving his children were akin to a “spree” is inappropriate. When this Court haspreviously described offences as “sprees”, it has been limited to cases of robberies committed over a short period of time to feed anaddiction. That is not the case here. There was no evidence of addiction.

In this regard, I would adopt the view articulated by the AlbertaCourt of Appeal in R. v. CGJL, 2013 ABCA 140 , 544 AR 360 (at para 19): “As a word for these crimes, ‘spree’ trivializes themand is plainly not a proper term to use.” [68] Determining when a sentence should be served concurrently or consecutively is a fact-specific injury. As noted in Clayton C.Ruby et al., Sentencing, ed. (Markham: LexisNexis Canada Inc., 2012) at paragraph 14.11: One cannot minimize the difficulty of deciding when there is a sufficiently close nexus to fit within the rule.

That thorny problem has notbeen made easier by the judicial use of a multitude of phrases to express the same concept: “a break in the transaction”, “really separateinvasions of the community’s right to peace and order, notwithstanding that they are historically interdependent”, “one multi-facetedcourse of criminal conduct”, “one transaction”, “part of the same transaction or endeavour”, “closely linked together”, “one continuous

criminal act”, “one single enterprise”, “single criminal adventure”, and “reasonably close nexus”. [ 69 ] In this case, given the separate nature of the offences and the lack of any nexus between the offences except perhaps more instances of maltreatment, I find, as noted previously, that the sentences should be served consecutively. [ 70 ] As the sentences are consecutive, I have considered totality in accordance with

section 718.2 of the Criminal Code and the principles enunciated in R. v. Wozny, 2010 MBCA 115 . [ 71 ] Upon taking one last look before finalizing sentencing, mindful of the seriousness of the offences, I find that a six year penitentiary sentence for a first time offender with no criminogenic factors would amount to a crushing sentence.

After applying the totality principle, a total fit and appropriate sentence in this case would be five years incarceration. [ 72 ] Accordingly, I would reascribe the sentences as follows: • For the offence of assault causing bodily harm, three and one half years; • For the offence of failing to provide necessaries, eighteen months. [ 73 ] As for ancillary orders, I also impose the following: • For the offence of assault cause bodily harm: o a primary designated DNA order; o a ten year

section 109 Criminal Code weapons prohibition; o $202.00 costs and surcharge payable within one year; • For the offence of failing to provide necessaries of life: o $202.00 costs and surcharge consecutive, payable within one year. “Original signed by” MARTIN, P.J.