WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) FAILURE TO COMPLY WITH ORDER

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2017-03-20

Court File No.: Newmarket 16-01979

Between:

Her Majesty the Queen

— AND —

Olena Panfilova and Karina Rabadanova

Before: Justice David S. Rose

Heard on: March 8, 2017

Reasons for Judgment released on: March 20, 2017

Counsel

Mr. R. Scott — counsel for the Crown

Ms. E. Levy — counsel for the accused Olena Panfilova

Mr. T. Ounapuu — counsel for the accused Karina Rabadanova

Judgment

ROSE J.:

Introduction

[1] Ms. Panfilova is charged with Manslaughter alone and is co-accused with Ms. Rabadanova on a single count of Obstruct Justice. The Preliminary Hearing commenced with evidence on February 22, 2017 and has so far sat for 7 days. The Crown has applied under s. 540(7) of the Criminal Code to have two statements of Yana Samkov admitted into evidence. The Defence opposes this and asks that, if the evidence is admitted, I should make an order under s. 540(9) of the Code that Ms. Samkov attend for cross-examination.

Background

[2] For purposes of this ruling the evidence thus far establishes that a child two years old named Eva Ravikovich died on July 8, 2013, while Eva was at a day care at 343 Yellowood Circle. The day care was operated by Ms. Panfilova. I have not yet heard opinion evidence regarding the cause of death, but I have heard from an EMS attendant Terry Ng who went to 343 Yellowood at 5:25 pm that day in response to a 911 call. He found Eva on a couch in the living room lying face up. She had no vital signs and he was unsuccessful in his efforts to revive her. Eva was pronounced dead at the scene.

[3] I have heard evidence from various parents who had their children at the day care that day. They described the operation of the day care from a parent's perspective, which included how much money was charged, the number of children who they understood to be there at any given time, and the services which were provided by the day care. Many of the parents' evidence was that the day care offered a pick-up and drop-off service. There is evidence from various witnesses that the day care picked up children each morning in two shifts and then dropped them off at home at the end of the day. Ms. Panfilova used a Dodge Durango vehicle to do that, as well as her husband in another vehicle.

[4] Eva's mother testified that on the morning of July 8, 2013 Eva was picked up as usual by Ms. Panfilova. Eva sat in her regular seat which was behind the driver.

[5] Several police witnesses testified at this proceeding about responding to the 911 call on July 8, 2013. For purposes of this ruling, it is not necessary to recount all of their evidence. However, one of them, Detective Constable Laine, testified about taking a series of photographs from the interior and exterior of 343 Yellowood commencing at 7:09 pm that evening. Those photographs have been entered into evidence. In addition, PC Racco testified about the presence of a black Dodge SUV in the driveway on the night of July 8, 2013 when the police took control of the scene. The police evidence includes Detective Eagan, who testified about going to 343 Yellowood on July 30, 2013 to execute a search warrant. He took a series of pictures that day, which were entered into evidence. They include photographs of the Dodge Durango in the driveway of 343 Yellowood, and specifically the rear seat. They show one baby seat in the second row of the car, but the seat directly behind the driver does not have one.

The Proposed Evidence

[6] Mr. Scott asks that two statements from the witness Yana Samkov be admitted without the need to call her in person to testify. The first statement is a video statement from September 18, 2013. I am told that it lasts about an hour in length and at some point in the middle of it Ms. Samkov swears under oath that her statement has been true and will be true. The oath does not occur at the outset of the interview. The second statement was taken on April 26, 2016 and was audio recorded only. It is not under oath. Mr. Scott, with his usual candor, tells me that the first statement has inculpatory value, and the second one in some manner contradicts the first. Because findings of credibility are beyond the jurisdiction of the Preliminary Hearing judge he is offering the second statement only to complete the record.

[7] I would summarize Ms. Samkov's first statement the following way. She is a parent with a child at Ms. Panfilova's day care at 343 Yellowood. She told the police that day that she never borrowed a car seat from anyone. That includes Ms. Panfilova. The second statement contradicts the first insofar as Ms. Samkov clarifies that she borrowed a car seat from Ms. Panfilova in April 2013 and kept it.

[8] Ms. Samkov had surgery in September 2015 and is now struck with chronic pain. This has been confirmed by her physician as recently as February 7, 2017. On January 16, 2017 her doctor wrote that she is not medically fit to participate in court.

Law and Analysis

[9] S. 540(7) of the Code furnishes the Crown with an ability to put evidence before the Preliminary Hearing Judge without the need for calling that evidence viva voce. Evidence that is found by the Court to be credible or trustworthy may be so filed whether it be in writing or otherwise recorded. Other judges have considered the purpose of that provision, which is:

1. To streamline Preliminary Hearings;

2. To focus issues on a Preliminary Hearing, given that a judge at a Preliminary Hearing cannot make findings of credibility;

3. To spare witnesses and victims of the trauma of having to testify twice;

4. To recognize that a Preliminary Hearing has only a discovery function which has been muted since the entitlement of the accused to full disclosure pursuant to R. v. Stinchcombe, [1991] 3 S.C.R. 326;

5. To strike a balance between protecting witnesses and allowing the case to be met;

6. To provide the Crown with an additional, alternate method of presenting its case at a Preliminary Hearing;

See R. v. Trac, 2004 ONCJ 370, R. v. Dixon, 2011 ONCJ 252, R. v. Vaughn, 2009 BPC 142, R. v. McFadden, 2012 BCCA 275.

In order to become admissible, the evidence must be credible or trustworthy. In Trac (supra) Shaw J. found that the test to be applied was akin to the admissibility test for evidence at bail hearings, sentencing hearings or extradition hearings. Credibility in this context does not have the same meaning as it would at trial, nor is it the same as it would be in an admissibility hearing for evidence under the principled exception to the hearsay rule; rather the evidence must be something which has an air of reality, as opposed to a bare assertion of fact. In McFadden the British Columbia Court of Appeal described "credible or trustworthy" as meaning only "prima facie" (at par. 72).

[10] From these authorities I find that the test of "credible or trustworthy" is not onerous. If there is evidence that the statement was made and was reliably recorded it will generally meet the test. That the evidence or statement conflicts with other evidence in substance is not part of the test.

[11] While electronic recording of a statement is not necessary to such applications, the higher the quality of the recording the more confidence that the Court can have in the statement's accuracy, see Vaughn at par. 26. One of the considerations is whether the evidence is given to open ended questions or alternatively whether the questioning was subject to contamination by the interviewer or another person. This last factor seems more applicable to child witness statements than to an adult such as Ms. Samkov.

[12] In the circumstances before me the two statements of Ms. Samkov are both electronically recorded. The first was taken under oath. The second was not. Nonetheless, Mr. Scott proposes to play the statements, and file the recordings as exhibits. That Ms. Samkov made the statements, and what precisely she said, is not in dispute. Accordingly, I have no difficulty in finding that both statements will be admitted into evidence under s. 540(7) of the Code. In wake of R. v. Jordan, 2016 SCC 27, the Crown should be encouraged to use s. 540(7) more often to focus preliminary hearings so that court time is used as efficiently as possible. This is one of those instances.

[13] Ms. Levy applies under s. 540(9) to have Ms. Samkov produced to be cross-examined. The basis for this is to explore the reason why the two statements contradict each other regarding why Ms. Samkov said the she never got a car seat from Ms. Panfilova and then later said that she did. I find that the reason is one of discovery, namely to pursue issues of credibility which would be raised at trial, if Ms. Panfilova or Ms. Rabadanova are committed to trial.

[14] S. 540(9) confers jurisdiction on the Preliminary Hearing Justice to make such a discretionary order. On its face, that provision provides little guidance as to the test to be applied in making such determinations. The Quebec Court of Appeal added gloss to the section in R. v. M.(P), 2007 QCCA 414. They found that:

In allowing or disallowing the cross-examination requested by the accused, the justice will consider, on the one hand, the accused's legitimate interest in preparing his or her defence and bringing out, at preliminary hearing stage, the insufficiency or the weakness of the Crown's evidence. Very obviously, the justice will make sure, on the other hand, that the cross-examination requested by the accused is relevant to the particular situation of the person whose appearance is requested and to all of the circumstances of the case. If the relevance is not demonstrated, the request will be denied. (par. 86).

[15] At a bare minimum relevance must be demonstrated. I find that Ms. Panfilova meets this test. The proposed cross-examination would explore reasons why Ms. Samkov gave two seemingly inconsistent statements on the issue of the presence or absence of the car seat at various times. That is, in my finding, an ancillary purpose to this Preliminary Hearing.

[16] Once relevance has been demonstrated, all the circumstances of the case must be considered in determining whether the proposed witness should be required to appear. Having reviewed the jurisprudence, the circumstances should include the following:

i) The nature of the charge;

ii) The nature of the Preliminary Hearing;

iii) The nature of the evidence sought from the witness viva voce;

iv) The personal circumstances of the witness;

v) The ease with which the witness' evidence can be heard.

[17] There are two charges before me at the Preliminary Hearing: Manslaughter and Obstruct Justice. I do not understand Ms. Samkov's evidence to speak to the first charge but rather the second. In her evidence, Eva's mother Ekatrina Evtrapova described a car seat which Eva sat in in her journey to the day care the day of her death, which was not present when the police executed a search warrant on July 30, 2013. This evidence will be placed alongside utterances by Ms. Panfilova and Ms. Rabadanova which have yet to be tendered in this Preliminary Hearing. The allegation is, I understand, one of explaining the absence of the baby seat on July 30, 2013. Ms. Samkov's evidence is situated in that narrative.

[18] The Preliminary Hearing thus far has heard from 11 police witnesses and 9 civilians. These range from officers at the scene when the 911 call was made initially to an EMS first responder, to parents with children at the day care on July 8, 2013. Two series of photographs were put into evidence which show the condition of the day care on July 8, 2013 as well as its appearance 3 weeks later. A forensic pathologist is scheduled to testify. Given the charges and issues, it has been a very comprehensive Preliminary Hearing thus far. Both Ms. Panfilova and Ms. Rabadanova have had the opportunity to challenge and explore evidence from a range of sources over a variety of issues.

[19] The evidence sought by the defence from Ms. Samkov relates to the reasons why she has modified her position that she did not borrow a baby seat from Ms. Panfilova. I would describe this as neither being central, nor peripheral to the charge of obstruction, but somewhere in-between.

[20] Ms. Samkov is unable to come to Court for medical reasons. Mr. Ounapuu asks me to find that despite this she could still come to court even if she would be uncomfortable. I decline to do so. I place great weight on Dr. Ransom's letter of January 7, 2017, that Ms. Samkov is "…not medically fit to participate in court". One month later she was unable to return to work for the same reason. There is nothing before me which suggests that Ms. Samkov is avoiding Court attendance for other reasons, and this is not a case where the Crown has any apparent tactical reason for not wanting Ms. Samkov to come to Court.

[21] Lastly, the personal circumstances of Ms. Samkov make it extremely difficult for her evidence to be heard at this time.

[22] There is no precise formula which can be applied in the circumstances, but having considered all of this, I would not make an order under s. 540(9) requiring Ms. Samkov to attend.

Released: March 20, 2017

Signed: Justice David S. Rose