



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rousselle, 2020 ONCA 186

DATE: 20200309

DOCKET: C53427

Watt, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Rousselle

Appellant

Peter Copeland, for the appellant

Lisa Joyal, for the respondent

Heard: February 25, 2020

On appeal from the
    conviction entered on November 22, 2010, with reasons reported at
R. v. P.R.
,
    2010 ONSC 6426, by Justice Gisele M. Miller of the Superior Court of Justice.

REASONS FOR DECISION

[1]

Paul Rousselle was convicted of aggravated
    assault upon four-month-old Baby L. He appealed, arguing that the trial judges
    reasoning process was illogical or irrational and that there must therefore be
    a new trial. We do not agree. The appeal was dismissed with reasons to follow. These
    are our reasons.

[2]

There was no dispute at trial about the medical
    evidence that Baby L. had suffered injury, likely due to shaking. The
    substantial issue at trial was whether the appellant had caused that injury.

[3]

Baby L. lived in a townhouse with her parents,
    C.A. and S.J. The appellant and his partner, S.H.J., also lived there with
    their own infant son.

[4]

On November 14, 2008, during a regularly-scheduled
    appointment for vaccinations, C.A. and S.J. told the nurse that Baby L. had been
    sleeping too much, was not eating well, and was projectile vomiting. They took
    the child to the emergency department on the nurses advice. There, doctors
    discovered subdural bleeding that was causing life-threatening increased
    cranial pressure, and which resulted in lasting impairments.

[5]

A medical expert, Dr. Singh, testified at trial
    that there were three different ages of subdural bleeding apparent on the CT
    scan of the baby, taken on November 14, 2008. The acute bleeding was zero to
    three days old, the sub-acute bleeding was between three days and three weeks
    old, and the chronic bleeding was up to three months old. Another medical
    expert, Dr. MacMillan, testified that considerable force, well beyond that
    which any person would have regarded as appropriate treatment of a four-month
    old baby, would have been required to inflict the injury. The position of the
    Crown was that the appellant caused the acute injury, occurring within three
    days of November 14, 2008.

[6]

On November 15, 2008, the appellant was interviewed by police at his
    workplace. He denied shaking Baby L. or knowing of anyone else shaking her.

[7]

On November 21, 2008, the appellant was interviewed by police at the
    police station. The appellant said that one day, while her parents were outside
    smoking and he was playing a video game, Baby L. began choking. He patted her
    on the back and then shook her for about five seconds to stop the choking. He
    said, I had to shake her fast and I shook fast I thought that maybe I was
    shaking her too hard It might have been too hard, it might have been I
    thought about it and it could have been too hard.

[8]

The appellant was cautioned but he declined the opportunity to contact a
    lawyer and continued speaking. He advised that Baby L. was OK after the shaking
    and that he did not tell anyone at that point what had happened. He could not
    pinpoint a date but said that this occurred sometime between November 8, 2008
    and November 14, 2008.

[9]

The appellant was then arrested, re-cautioned, and given the opportunity
    to contact counsel, which he again declined. After four hours and a meal, he
    was brought to an interview room. At this point the appellant admitted that he
    made up the choking story and that he had shaken Baby L. when she would not
    stop crying. He agreed that he got frustrated because Baby L. would not stop
    crying, and that her crying made his son cry as well. He maintained that he had
    not shaken her hard enough to hurt her and demonstrated the degree of force he
    used to the police officer.

[10]

He said he had to lie about the choking story because its so bad.

[11]

His partner, S.H.J., testified that when she picked up the appellant
    from the police station on November 21, 2008, he told her he had been arrested,
    and that he was sorry he could not tell her earlier what had happened. He later
    told her he had been in the living room playing video games and the two
    children were both in the room with him. Baby L. started crying, which made his
    own son start crying too. He said he picked up Baby L. and when she wouldnt
    stop crying, he shook her.

[12]

At trial the appellant testified that he did not do anything to Baby L.
    to cause her injury and that he did not shake her. He said he lied to police
    because he feared that if he did not confess to hurting her, the Childrens Aid
    Society would take his own son into care. Even if he were found responsible for
    hurting Baby L., it would be better for his own son to be in his partners care
    than in foster care.

The trial judges decision

[13]

The trial judge concluded that the appellant truthfully confessed to
    shaking Baby L. and that the assault endangered her life:

I am of the view that
if
Paul Rousselles
    confession to police that he shook [Baby L.] to stop her from crying when he
    was playing videogames was a false confession, he would have to be an actor of
    extraordinary talent. There is no evidence that he is. The detail he provided
    in respect of that incident and the emotion he conveyed when telling it to police
    have the ring of truth. When I consider that evidence in conjunction with Mr.
    Rousselles confession to his spouse I accept that what he told police was
    true.



I am satisfied that when Paul
    Rousselle shook [Baby L.], he did not shake her for any altruistic reason, such
    as saving her life from choking, I am satisfied that he shook her deliberately
    out of frustration when her crying was interrupting his playing of videogames.
    He knew when he did so that it was wrong to do so and that he could cause her
    serious injury  injury serious enough to amount to bodily harm. I am also
    satisfied that any reasonable person would foresee the likelihood of such an
    injury in those circumstances. In this case the injury inflicted clearly
    endangered [Baby L.s] life.

Arguments on appeal

[14]

The appellant relies on
R. v. Sinclair
, 2011 SCC 40, [2011] 3 S.C.R.
    3, and submits that it was illogical or irrational for the trial judge to
    accept his statement to police that he had shaken the baby out of frustration
    but at the same time to reject the demonstration given to the officer during
    the same interview suggesting that he used only very minor force that would not
    have injured the child.

[15]

We disagree. It was open to the trial judge to accept all, some, or none
    of the appellants statements to police as well as his trial testimony. Her
    conclusions are both logical and rational and rooted in the whole of the
    evidence.

[16]

The appellant admitted to shaking Baby L. within a time frame during
    which the acute injury was inflicted. He admitted to his own partner that he
    had done so. He shook her out of frustration because she would not stop crying.
    The medical evidence established that considerable force would have been
    necessary to cause the injury. He shook her until she stopped crying. The
    medical evidence was that this was a significant indicator of the degree of
    force used. Dr. MacMillan testified, [t]he fact that [Baby L.] became quiet
    subsequent to a shaking raises major concern for me about the extent of the
    shaking because that action has led to a change potentially in her level of
    consciousness, in her brain functioning. There was no evidence anyone else
    shook Baby L. during the three-day interval in which the acute injury was
    inflicted.

[17]

In the light of this evidence, the trial judge was not obliged to accept
    the appellants evidence that he used only gentle force when he shook the baby.

[18]

The appellant also submits, on essentially the same basis, that the
    trial judges reasons were insufficient, or based on a misapprehension of the
    appellants interview with police and the medical evidence. We do not accept
    these arguments for the same reasons expressed above.

[19]

The appellant further contends that the trial judge erred in admitting
    evidence of a previous incident in which the appellant reacted angrily to an
    interruption of a video game. There was evidence that the appellants partner
    turned off his gaming system while he was in the middle of a game with friends.
    The appellant responded by picking up a guitar, taking it to the basement and
    holding it as if he were about to smash it. The appellant argues that this
    incident was so dissimilar that it should not have played any part in the trial
    judges reasoning.

[20]

We disagree. There was no objection to the admission of this evidence at
    trial and the appellant confirmed the accuracy of the account of this earlier
    incident in his own evidence. It was relevant to show the intensity of the
    appellants focus when he played video games and the seriousness with which he
    approached playing them. The trial judge indicated that this evidence showed
    that the appellant could react strongly to an interruption of his video game
    but that it would blow over quickly.

[21]

The intensity of the appellants focus when he played video games, and
    the seriousness of his engagement with them, could shed light on why the
    appellant became frustrated and shook Baby L. The probative value of the
    evidence of the minor earlier skirmish involving a video game was not
    outweighed by any prejudice associated with that evidence. It had little impact
    on the trial judges reasons, given the appellants admission to police that he
    shook the baby out of frustration.

[22]

For these reasons, the appeal as to conviction was dismissed. The
    sentence appeal was dismissed as abandoned.

David Watt J.A.

G. Pardu J.A.

L.B. Roberts J.A.


