Court File and Parties

Court File No.: CR-17-0152 Date: 2018-07-19 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Kristopher Damien Joseph Rothery, Defendant

Counsel: Monica Heine, for the Crown Brian Callender, for the defendant

Heard at Napanee: 25, 26, 27 and 28 June 2018

Before: Mew J. (Orally)

Reasons for Decision

[1] Late in the evening on 10 December 2016, seven-week-old Jackson Rothery was taken by his parents to the emergency department at the Lennox & Addington County General Hospital in Napanee. He was having difficulty breathing. He had been lethargic since the afternoon and was not feeding.

[2] A judgment was quickly made by the medical staff that Jackson was unstable and needed to go to the paediatric stepdown unit at Kingston General Hospital. There, he was found to have bilateral subdural haemorrhaging, seven fractured ribs, a possible fractured clavicle and what appeared to be associated extra-pleural haematomata involving the upper rib fractures. He was intubated to assist his breathing.

[3] Due to concerns about increased intracranial pressure, on the evening of 11 December, Jackson was transferred to the paediatric intensive care unit ("PICU") at the Children's Hospital of Eastern Ontario ("CHEO") in Ottawa.

[4] At CHEO, Jackson was diagnosed with retinal haemorrhages, subdural haemorrhages, subarachnoid haemorrhages and brain injury. He had seizures intermittently until 19 December. There was a fracture of the mid shaft clavicle with callus formation, an irregularity of the first right and left ribs, multiple left-sided rib fractures involving the third, fourth, fifth, sixth, seventh, eighth and ninth ribs. There was also a suspected right-sided metaphyseal fracture.

[5] A specialist in child maltreatment paediatrics as well as general paediatrics, Dr. Shasta Lee Moser, who both examined Jackson while he was at CHEO and provided opinion evidence at trial, concluded that Jackson's rib fractures, subdural haemorrhages, subarachnoid haemorrhage, brain injury and retinal haemorrhages were caused by the actions of another person.

[6] The issue presently before the court is whether Jackson's father, Kristopher Rothery, is criminally responsible for some of the injuries or harm sustained by Jackson and whether, as a parent, he endangered Jackson's life by failing to provide him with the necessaries of life.

Background

[7] Jackson was born on 24 October 2016. It was a normal delivery. He was, however, born six weeks prematurely. As a result, he spent the first eleven days of his life in the neonatal intensive care unit at Kingston General Hospital. He then went home with his parents Angel Stone and Kristopher Rothery, both aged 18 at the time.

[8] Home was a unit on the ground floor of a house in Napanee. Angel Stone's father, Paul Stone and Angel's maternal aunt, Cheryl lived in another ground floor unit in the same house.

[9] Angel Stone's pregnancy was a planned one. She and Mr. Rothery had been together on and off since grade 6 and had started living together the summer of 2015.

[10] After leaving the neonatal unit, Jackson was initially fed every three hours. However, that changed on 9 December when, on the advice of their public health nurse, Jackson went on to a feeding on cue regime whereby he would be fed when he was hungry.

[11] The public health nurse, Anja Cahill, felt that both parents seemed to be appropriately engaged in Jackson's care and well-being. At one point, they had been concerned about some blood that Jackson had spit up – a concern sufficient to result in a brief trip to the local hospital’s emergency department - but otherwise, there were no particular concerns; no “red flags” as Ms. Cahill put it.

[12] Ms. Cahill’s observations were that on 9 December, Jackson was happy, healthy and gaining weight.

Events of Saturday 10 December 2016

[13] At trial, evidence was given by Angel Stone (Jackson’s mother), Anja Cahill (public health nurse), Jimmy Knight (Stone family friend), Alexis Stone (half-sister of Angel Stone), Paul Stone (father of Angel Stone) and Dr. Moser.

[14] As was his right, Mr. Rothery elected not to testify. However, an extensive videotaped interview of Kristopher Rothery undertaken on 14 December 2016 by Detective Sergeant Steve Coburn of the Ontario Provincial Police, which I previously ruled was given voluntarily by Mr. Rothery, was in evidence.

[15] Jackson Stone was at home with one or both of his parents on 10 December. And with the exception of a couple of occasions that day when Mr. Rothery went next door to Mr. Stone’s for a smoke, Mr. Rothery was in the home throughout.

[16] Angel Stone testified that, after waking up in the morning, she fed Jackson. Mr. Rothery was still asleep. She then put Jackson in his bassinette and went over to her father’s for a cigarette. When she returned, she herself went back to sleep.

[17] In the early afternoon, Alexis Stone and Paul Stone came over to the Rothery/Stone residence. Jackson was seemingly alert and well. Alexis took a photograph of Paul Stone holding an alert and awake Jackson at 1:31 p.m.

[18] Soon afterwards, Angel and Alexis Stone went shopping. Till receipts and closed-circuit television images confirm that they visited Giant Tiger and No Frills, leaving the latter at 4:32 p.m.

[19] When she got home shortly after that, Angel Stone checked in on Jackson. He was asleep in his bassinette and seemed to be fine. She was not sure if Jackson had been fed that afternoon – she said that she believed he had been, explaining that she and Mr. Rothery shared responsibility for feeding Jackson. Mr. Rothery was in the kitchen. They unloaded the groceries. After a further nap, Ms. Stone and Mr. Rothery had dinner. She went to check on Jackson because he had not been awake for a second feeding, which seemed to her to be odd. She did not, however, apprehend any further cause for concern at that time.

[20] After dinner, Ms. Stone went out for coffee with Jimmy Knight. When Mr. Knight dropped her off afterwards. he looked in on Jackson and said to Ms. Stone that he thought the baby looked pale. At that juncture, Ms. Stone tried to wake Jackson so that she could feed him. Normally, he would stir of his own accord, but on this occasion, he did not. Ms. Stone described him as “floppy”. She is not sure if he opened his eyes. Still not fully appreciating that something was wrong, Ms. Stone changed Jackson’s diaper. She tried giving him a bath. Still, he did not wake up. By now, she was concerned. She took Jackson upstairs. His chest did not seem to be moving. Ms. Stone sent Mr. Rothery over to her father’s to get help. Paul Stone recounted how Mr. Rothery had come in and said “Angel thinks there is something wrong with the baby”.

[21] Jackson was taken to the Lennox & Addington County Hospital. His arrival was recorded at 10:04 PM. The emergency notes record that there had been episodes of “not breathing and lethargic this afternoon” and that Jackson was “[b]rought in looking lethargic, intermittently low muscle tone, intermittently opens his eyes but within seconds looks glazed and rolls both eyes back”. Tremors and apnoeic spells were observed by the hospital staff. As already noted, the decision was quickly taken to transfer Jackson to Kingston.

[22] At some point during the evening of 10 December, most likely before she went out for a coffee with Mr. Knight, Ms. Stone says that she gave Mr. Rothery “a break” so that he could go next-door for a smoke, while she remained at home with Jackson. She estimates that she was alone with Jackson for approximately 15 minutes.

[23] Ms. Stone denies having shaken Jackson, dropped him or otherwise causing any of the injuries which Jackson was subsequently found to have had.

Mr. Rothery’s Interview

[24] Mr. Rothery was interviewed under caution on 14 December 2016. The interview lasted almost four hours. It was conducted patiently, sympathetically and skilfully. Ultimately, it yielded from Mr. Rothery an acknowledgement that he had shaken Jackson on 10 December while Jackson had been in his care. He said that Jackson had stopped breathing. He had tried to pat Jackson on his back. It did not work. He did not tell Ms. Stone about having shaken Jackson.

[25] At various points during his interview, Mr. Rothery suggested that Jackson would stop himself breathing. Although he acknowledged that when Jackson stopped breathing, he “freaked out”, he did not call 911 because “I’m just not a big 911 caller”. Nor did he tell Ms. Stone because “I would’ve gotten kicked out”. The transcript of his interview continues:

I didn’t tell her because I didn’t want to sleep on the street for the night um I just I I didn’t think it was like being a new father I realized that I shoulda I I should have talked to someone whose more experienced with babies about what had happened um but I just I thought I had contained the situation because he he was breathing now and he was okay and and he wasn’t and then he was and now he’s okay and and so I just I I thought nothing of it and I just thought he’s okay you know what I mean I don’t have to worry his mom about that incident um she doesn’t have to (laughs) kicked me out into the snow.

[26] Mr. Rothery’s disclosure of what had actually happened was incremental. For some time during the course of the interview, his position was that there had been an incident in which he had either shaken or rocked Jackson, but that it had happened prior to 10 December and that nothing untoward had happened on the 10th. Ultimately, however, he acknowledged that after Angel Stone had left to go shopping, he had noticed that Jackson was blue and picked him up. As he explained to D.S. Coburn:

.. it was very um scary moment for me and I just I wasn’t thinking and I I don’t really remember the force that I used I was just trying to get him to breath [sic] and I don’t know how hard I hit him it didn’t it didn’t seem hard I don’t think I hit him hard um and then after uh patting his back and it didn’t work I uh I flipped him over um and I shook him towards my face probably not any faster than that and then he um he kind of breathed and I uh I just held him for half an hour and [unintelligible] bassinet.

Medical Evidence

[27] The uncontradicted evidence of Dr. Moser is that normal childcare would not have caused the injuries suffered by Jackson. Dr. Moser’s report describes a considerable array of injuries. She concludes that inflicted injury is the only reasonable explanation for the collection of injuries observed by her:

Jackson is an infant with multiple injuries without a plausible accidental injury event to account for the findings and who on clinical, laboratory and radiographic evaluation had no signs of a predisposition to bleeding or fracturing easily. Thus, based on this, it is my opinion that Jackson's rib fractures, subdural hemorrhages, subarachnoid hemorrhages, hypoxic ischemic brain injury and retinal hemorrhages were most likely caused by Inflicted Injury (i.e. injury caused by the actions of another person). The mechanism of shaking could result in subdural hemorrhages and other intracranial findings seen in Jackson's case. The medical information alone cannot determine the exact mechanism of injury, nor the Intent behind an inflicted injury.

Legal Framework

[28] There are three counts on the indictment charging Mr. Rothery:

a) aggravated assault (Criminal Code, s. 268);

b) criminal negligence in failing to seek medical treatment for Jackson, thereby causing him bodily harm (Criminal Code, s. 221); and

c) failing without lawful excuse to provide the necessaries of life to Jackson, thereby endangering his life (Criminal Code, s. 215(2)(a)(ii)).

[29] On the charge of aggravated assault, the Crown has the burden of proving beyond a reasonable doubt that Mr. Rothery intentionally applied force to Jackson and that the force he applied endangered Jackson’s life by causing the near fatal injuries that he sustained (given Jackson’s age, the other elements of the offence requiring that the victim did not consent to the intentional application of force and that the accused knew that the victim did not consent do not come into play).

[30] The word “intentionally” applies to Mr. Rothery’s state of mind when he applied the force. It means “on purpose” and not by accident. However, the Crown does not have to prove that Mr. Rothery meant to endanger Jackson’s life. It is sufficient for the Crown to prove that a reasonable person, in the circumstances, would have realised that the force which he applied would put Jackson at risk of suffering some kind of bodily harm: R. v. Fontaine, 2011 BCCA 140 at para. 25.

[31] The offence of failing to provide the necessaries of life is described in Manning, Mewett & Sankoff, Criminal Law, 4th ed. (Markham: LexisNexis, 2009) at p. 822 as a “very specific form of criminal negligence”. In R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215 at para. 37, the Supreme Court explained the approach to be taken in cases where criminal negligence and failure to provide the necessaries of life to a child are both charged. The court should first consider whether the Crown has established beyond a reasonable doubt that the accused failed to provide the necessaries of life. If so, an offence contrary to section 215(2)(a)(ii) would have been committed. The court should then go on to consider whether the accused, in failing to provide the necessaries of life, showed a wanton or reckless disregard for the life and safety of the child. If so, the accused would be guilty of criminal negligence.

[32] The elements of these offences are summarised in paras. 7-9 of R. v. J.F. as follows:

[7] … Neither criminal negligence nor failure to provide the necessaries of life requires proof of intention or actual foresight of a prohibited consequence. Under both counts, the jury was required to determine not what the respondent knew or intended, but what he ought to have foreseen.

[8] On the count alleging failure to provide necessaries, the Crown was bound to establish that the respondent’s failure to protect his foster child represented “a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the child”: R. v. Naglik, [1993] 3 S.C.R. 122, at p. 143 (emphasis added). It will later become apparent why I have emphasized the word “risk” in this description of the offence by the Chief Justice, speaking for the Court on this point.

[9] On the count alleging criminal negligence, the Crown was bound to show that the respondent’s very same omission represented a marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to the life of his child or, alternatively, gave no thought to that risk: R. v. Tutton, [1989] 1 S.C.R. 1392, at pp. 1430-31; R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.).

[33] The Crown concedes that in the event that there is a finding of guilt on the criminal negligence charge, the rule against multiple convictions arising out of charges based on the same or substantially the same elements, established in Kienapple v. R., [1975] 1 S.C.R. 729, would be engaged, with the result that the charge of failing to provide the necessaries of life would be stayed.

[34] In assessing the evidence, I am required to engage the analytical process enunciated by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 SCR 742 which, applied to this case, requires me to ask and answer these questions after consideration of all of the evidence, including Mr. Rothery’s interview with D.S. Coburn:

1. Do I believe Kristopher Rothery’s account? If I do, I must acquit him.
2. If I do not believe the account of Mr. Rothery, but I am left in reasonable doubt by it, I must acquit him.
3. Even if I am not left in doubt by Mr. Rothery’s evidence, am I convinced beyond a reasonable doubt of the guilt of Mr. Rothery on the basis of the evidence which I do accept?

Discussion and Findings

[35] The essence of the defence advocated on behalf of Mr. Rothery is that Jackson was injured when he stopped breathing and Mr. Rothery attempted to resuscitate him. Having done so, he mistakenly, but honestly, believed that everything was back on track.

[36] The defence also raises the possibility that Jackson’s injuries were inflicted before 10th December, based on an acknowledgment by Dr. Moser that Jackson could have demonstrated a period of lucidity of as much as ten to fourteen days between the infliction of injury and the manifestation of symptoms. Accordingly, there could be reasonable doubt as to whether Mr. Rothery was responsible for at least some of Jackson’s injuries.

[37] I am invited to find that Mr. Rothery’s account is credible. That the evidence does not point to him deliberately trying to hide anything. Furthermore, he claims that the evidence of Angel Stone was actuated by a desire to say whatever was required to secure Mr. Rothery’s conviction.

[38] During Mr. Rothery’s interview with D.S. Coburn, he repeatedly attempted to show himself in a good light. He portrayed himself as a victim of antipathy from Angel Stone’s family and mistreatment by Angel Stone herself. He asserted that Jackson, just seven weeks of age, had deliberately stopped breathing; that Paul Stone may have been responsible for what happened; that Angel was dishonest.

[39] There does indeed seem to have been animosity between Mr. Rothery, on the one hand, and Ms. Stone and her family, on the other. The contrast between Ms. Stone’s demeanour, first when giving her examination in chief, and then under cross-examination when she became combative and defensive, was palpable. But contrary to Mr. Rothery’s assertion, the animosity has been a two-way street. As an example, within hours of Jackson being taken to KGH, Mr. Rothery was heard referring to Ms. Stone as “a psycho bitch”.

[40] Mr. Rothery would not acknowledge how much force he applied to Jackson. He initially said that he had gently rocked Jackson. Although he finally confessed to having shaken him, when pressed, he said he was unable to remember the degree of force.

[41] I do not accept Mr. Rothery’s evidence on this point. In my view, Mr. Rothery knows full well the degree of force he applied. He chose not to disclose this information during his interview.

[42] The defence argues that there is no evidence contradicting the exculpatory things that Mr. Rothery has said. That may be so, at least in respect to some aspects of his evidence. But my general impression of Mr. Rothery’s account is that he has still not disclosed the complete story of what happened and why. In short, while the admissions he has made against his own interests are probative, in other respects I find Mr. Rothery to be unreliable. I do not accept much of what he says on face value.

[43] It follows that I would not acquit him on any of the charges against him applying the first prong of the W.(D). analysis.

[44] Moving to the second and third limbs, I accept that Mr. Rothery was scared. That he was nervous. That being responsible for Jackson was at times overwhelming.

[45] But these things neither exculpate him from his responsibilities as a parent nor justify his failure to disclose what really happened in a timely way. He may have impressed Ms. Cahill as being an engaged parent, but when a conflict arose between the well-being of his son and his own self-preservation, Mr. Rothery chose the latter. Asked why, when Jackson stopped breathing and he “freaked out” he did not summon help, Mr. Rothery answered “I’m just not a big 911 caller”. I find that inexcusable.

[46] Even more incredibly, Mr. Rothery failed to summon help of any sort, even though it would possibly have taken just few bangs on the wall that separated his residence from Paul Stone’s. Instead, he tucked Jackson in his bassinette after shaking him and said nothing about the incident to Angel Stone when she returned sometime after 4:32, continued to say nothing as Jackson seemingly slept for hours on end and still said nothing when, much later that evening, it became apparent that Jackson was unwell. And the deception continued each time Mr. Rothery spoke to a health care professional until, nearly four days later, when he was interviewed by D.S. Coburn.

[47] The defence argues that failing to tell anyone that Jackson had stopped breathing does not equate with Mr. Rothery failing to provide the necessaries of life.

[48] I do not accept that argument.

[49] Failing to tell anyone that Jackson had stopped breathing, or that he had shaken Jackson, whether to resuscitate him, as Mr. Rothery claims, or otherwise, is a marked and, in my view, substantial, departure from the conduct of a reasonably prudent parent. It was objectively foreseeable in the circumstances that these failures would lead to a risk of danger to the life, or to a risk of permanent endangerment to the health, of Jackson. Mr. Rothery either knew this, or showed wanton disregard for the consequences of his actions.

[50] Nor do I accept the defence argument that Mr. Rothery had an honest but mistaken belief that Jackson was alright after he had been shaken, such that the requirement of intentional application of force and, hence the charge of aggravated assault, is not made out.

[51] Mr. Rothery may have hoped that Jackson would be alright. But it is clear on the evidence that a reasonable person in the circumstances would have realised that shaking Jackson with force would put him at risk of suffering bodily harm. Despite Mr. Callender’s careful cross-examination on issues of causation and the possibility that the onset of Jackson’s haemorrhaging predated Mr. Rothery’s actions, I accept Dr. Moser’s uncontradicted opinion was that the only explanation for the constellation of injuries suffered by Jackson - the rib fractures and the subdural haemorrhages and other intercranial findings - was inflicted injury. I find that Mr. Rothery inflicted those injuries, the magnitude of which is indicative of the force he applied.

[52] To conclude, within a few hours, possibly even a few minutes, on 10th December 2016, as a result of Mr. Rothery’s actions, Jackson went from being a happy, thriving child, to one on life support and not expected to live although, happily, he did ultimately survive.

[53] The evidence amply supports a conclusion that each element of the offences charged has been proved beyond a reasonable doubt. There will, accordingly, be a finding of guilt on the charges of aggravated assault and criminal negligence. Applying the principle in Kienapple v. R., the charge of failure to provide the necessaries of life is stayed.

Graeme Mew J. Handed down orally: 19 July 2018