Court Information
Ontario Court of Justice
Date: May 19, 2017
Court File No.: Newmarket 16 01979
Parties
Between:
Her Majesty the Queen
— and —
Olena Panfilova
Before the Court
Justice: David S. Rose
Heard on: April 4, May 19, 2017
Reasons for Judgment released on: May 19, 2017
Counsel
For the Crown: Mr. R. Scott
For the Accused: Ms. E. Levy
Reasons for Judgment
Introduction
[1] On April 4, 2017 Olena Panfilova pleaded guilty to Criminal Negligence Causing the Death of a 2 year old child named Eva Ravikovich. This plea was entered after the conclusion of a preliminary hearing in which some 32 witnesses were called to testify. The case has been before me for 4 months now, which has permitted me to consider it over a period of time.
[2] The facts which Ms. Panfilova admitted to were filed as part of the guilty plea. I would summarize them for sentencing purposes the following way.
Facts
[3] Ms. Panfilova operated a day care out of a house at 343 Yellowood Circle in Vaughan. Her daughter Karina Rabadanova helped her. Her husband Ruslan also helped with picking up and dropping off children, and non child-care tasks. The day care was popular with Russian speaking families because Ms. Panfilova speaks Russian. Her day care was relatively inexpensive, costing between $500 - $700 per month. Her hours were flexible, and children could be picked up late without fear of penalty. There was a drop-off and pick up service. Ms. Panfilova held out to the parents that she made all the children's meals herself, and those meals were healthy and nutritious.
[4] During the preliminary hearing I heard many parents who spoke of how much they liked the day care. While the children at the day care were probably too young to complain, the parents consistently said that their children seemed happy there. This was bolstered by a letter filed on the behalf of Ms. Panfilova as part of the sentencing hearing. As parents, I place some weight on that.
[5] But Ms. Panfilova's day care was not a legal operation. She had been visited by the Ministry of Education in November of 2012. The Ministry staff told her that she could have no more than 5 children at her day care and that she had to reduce the numbers accordingly. Knowing that she was under scrutiny Ms. Panfilova installed surveillance cameras on the exterior of 343 Yellowood some time after the Ministry of Education caution. The surveillance cameras would monitor and record who arrived at the front door of the day care.
[6] On July 8, 2013 Eva Ravikovich's mother put Eva in the back of Ms. Panfilova's Dodge Durango around 9:30 am the way she always did. It was just a normal day in the life of Eva and her parents. Eva was an otherwise healthy child. She was put in a baby seat behind the driver, which was her regular spot. The car was filled with children on their way to the day care. Ms. Panfilova then drove the Durango to 343 Yellowood and took all of the children into the day care, but forgot about Eva. Eva was left in the car and died of hyperthermia, or heatstroke, at some time that day while she was buckled in the car seat. The interior of the Durango would have reached at least 50 degrees Celsius sometime around noon.
[7] On July 8, 2013 Ms. Panfilova had 35 children at the day care – seven times the legal capacity. Their ages ranged from just one year old to 7 years old. She did not know the precise number when she was asked by the police on the evening Eva died.
[8] Eva was noticed missing inside the day care some-time after 5:06pm following a series of phone calls from parents including Eva's mother. Those phone calls were otherwise part of the normal routine to arrange the drop off of children following the day, but on July 8, 2013 the call from Eva's mother served as a reminder to Ms. Panfilova that Eva was not inside the day care where she should have been.
[9] Upon realizing that Eva was still inside the Durango, Ms. Panfilova collected Eva from the Durango and brought her inside the house. She put her on a couch on the main floor, and removed Eva's sandals, putting them inside the front door. A series of frantic calls to Eva's parents, and 911 followed. Karina attempted to do mouth to mouth resuscitation but couldn't because Eva's jaw was locked shut. EMS operators arrived at 5:25 pm and attempted to resuscitate Eva without success. She was pronounced dead at the scene.
[10] Ms. Panfilova did not tell anyone that Eva died in the Durango, but maintained to Eva's parents, EMS personnel and the police that Eva simply stopped breathing while she was having a nap. When Eva was found she had spots on her face, which were ultimately attributed to post-mortem abrasion. In the chaos of the early evening of July 8, 2013 Eva's physical condition and Ms. Panfilova's utterances lead all concerned to believe that Eva died of an infectious disease. Foul play was not suspected until some time later. The belief that Eva died from a pathogen caused things to happen. A public health investigation was commenced, and the parents of the children in the day care were put on notice.
[11] In the days that followed Eva's death the DVR recorder which captured the comings and goings into the day care went missing. It would have furnished some objective proof of when in the day Eva was brought into the day care. That in turn would have been of significant value to the police in their capacity as either coroner's constables or police constables investigating Eva's cause of death. The baby seat which received Eva on the morning of her death and which she sat in at death also went missing. That too would have been valuable in investigating Eva's death.
Victim Impact
[12] Eva's mother Ekatrina Evtrapova read her own Victim Impact statement before me. She described the devastating loss that came with Eva's death, and the profound effect it will have on her life. As she put it "…my happy life just stopped". Eva's parents must live with the grief of any parent who outlives their child. For the last 4 years they have had to live with the uncertainty of not knowing how Eva died. Ms. Evtrapova described this as a form of torture – understandably so. Eva was young and full of promise. Her parents will not be able to experience the joy of watching their daughter travel the road of life, which is an essential part of parenthood. I commend Ms. Evtrapova for her courage both in testifying at the preliminary hearing, and also reading her Victim Impact Statement here today. I recognize how difficult this must have been.
Pre-Sentence Report
[13] I have reviewed the Pre-Sentence report dated May 9, 2017. Ms. Panfilova herself is 49 years old. She was born in Ukraine, and came to Toronto in 2001. She has two grown children, one of which was helping her in the day care on the day Eva died. Her marriage to Ruslan, who was also working at the day care has ended. The demise of her day care has left Ms. Panfilova destitute and unable to work. I understand that Ms. Panfilova has experience in day care when she was in the Ukraine, and once in Canada operated her own day care from 2002 until Eva's death. Notably, the Probation officer said that, "It is difficult to determine the level of responsibility taken by the subject and/or gauge the level of remorse as she often digressed and spoke primarily about how the matter before the Court has impacted her". Lastly, Ms. Panfilova is not physically well. She now suffers from depression.
Sentencing Submissions
[14] Mr. Scott asks for a custodial term of imprisonment of 2 years less a day plus ancillary orders. Ms. Levy argues that a term of 12 – 15 months in jail is appropriate.
Aggravating Factors
[15] I would identify the aggravating factors in this case as follows:
1) Death of a Child and Breach of Trust
This involved the death of a child, and it needn't have happened. While the death of any child is tragic, some are caused by disease or genes. This is different. Eva died because she was forgotten in a hot car, and Ms. Panfilova undertook to take care of Eva that day, as she had been for some time. The death was a result of a significant breach of trust. Ms. Panfilova forgot about her because her day care was overwhelmed with children needing care. In my view, it was inevitable that a tragedy of some kind was going to happen at the day care. There is no way that Ms. Panfilova and her daughter could properly have taken care of 35 children safely in a setting such as 343 Yellowood. Some harm was going to come to one or more of the children inevitably. Ms. Panfilova should have understood that much from the caution from the Ministry of Education in November of 2012. Instead, all that happened was that she installed a video surveillance camera to the exterior of the house so that persons arriving could be screened, including Ministry investigators.
2) Prolonged and Painful Death
The death of Eva was not something that occurred from criminal negligence of a brief duration, but rather from being left in a hot car over several hours. The circumstances of Eva's death were, in my finding, painful and prolonged.
3) Deception and False Public Health Scare
The failure of Ms. Panfilova to tell the EMS personnel on scene the true reason for Eva's death lead them to pursue a false lead. There was no reason that Eva's death needed to be turned into a public health scare. There was no reason that Eva's parents or any of the other parents with children at the day care needed to be worried that a fatal disease potentially affected their children. Eva's parents deserved the truth from the very beginning - painful though it was. The other parents needn't have worried about their children being exposed to something that killed another toddler in the same day care. When faced with the choice of making good on a commitment to take care of children, or self-interest, Ms. Panfilova chose self-interest.
4) Destruction of Evidence
The deliberate removal of two pieces of key evidence, namely the DVR and car seat made the investigation that much more difficult. Again, what is important in the death of anyone, and particularly a child, is that the cause of death be determined as quickly as possible. Put simply, Ms. Panfilova covered her tracks.
5) Involvement of Family Member
Ms. Panfilova placed her daughter Karina Rabadanova in a position where she played a part in the cover up. It is immaterial whether Ms. Rabadanova intentionally or unintentionally participated in the post offence conduct. Ms. Panfilova drew her daughter into the scheme.
Mitigating Factors
[16] I would identify the following mitigating factors:
1) Guilty Plea
Ms. Panfilova has pleaded guilty and by that plea taken responsibility for the death of Eva. While this is not what could be described as an early plea, it is nonetheless a guilty plea taken before the Committal for trial was finalized. I recognize that the pre-sentence report suggests that Ms. Panfilova does not in conversation overtly accept responsibility for this. Nonetheless the guilty plea will permit some closure for Eva's parents, and this in my view is important. Others in the community, namely the parents will be assisted by closure. It appeared to me that Ms. Panfilova's apology this morning to Eva's parents meant something to Ms. Evtrapova.
2) No Prior Criminal Record
Ms. Panfilova has no prior criminal record. While she was convicted under the Provincial Offences Act of violating the Day Nurseries Act, those charges were laid after July 8, 2013. She cannot be punished twice for the offence of operating a day care in violation of the Day Nurseries Act.
3) Personal Consequences
The death of Eva had an impact on Ms. Panfilova. Her marriage ended. She lost her home, she suffers from ill health. She has no present ability to obtain gainful employment. Ms. Panfilova was not confined before today, and is on a Release from a Police officer with minimal conditions. There is no pre-sentence custody which plays a part in the sentence.
4) Immigration Consequences
Lastly, the effect of this conviction on Ms. Panfilova will, I am told, bring her legal status in Canada into question.
Sentencing Principles
[17] Sentencing is a legal process. While the death of a toddler as a result of criminal negligence has strong moral undertones, I am bound by what Parliament has outlined as factors to be considered in fulfilling the objectives of sentencing. In s. 718 of the Criminal Code Parliament outlined these objectives. I would identify the following as being most relevant: 1) denunciation of not just the unlawful conduct but the harm done to the victims, and the community; 2) deterrence, both of the offender and others in the community; and 3) rehabilitation of the offender. When the offence involves the abuse of a person under the age of 18 denunciation and deterrence are factors rising to the top of the list.
[18] Parliament has also seen fit to outline certain sentencing factors which are either aggravating or mitigating. These are listed in s. 718.2 of the Criminal Code. One such aggravating factor applicable in the case of Ms. Panfilova is 718.2(iii) namely abuse of a position of trust. This is engaged because Ms. Panfilova was Eva's care taker the day she died.
[19] Over and above these statutory factors, this is an appropriate case to be mindful of the principle that judges should be restrained in the imposition of criminal law penalties. As Doherty JA recently commented, "criminal law is society's sanction of last resort to be used only when other remedies prove(d) inadequate and only to the extent that the remedy could be justified to achieve an identifiable and legitimate societal purpose". See September 23, 2016 Remarks by Doherty JA at Symposium in honour of The Honourable Marc Rosenberg. In other words, the most minimal sentence which can achieve the goals of sentencing should be imposed.
[20] Proportionality is the essential condition of a just sanction. The sentence must reflect the gravity of the offence and also must not exceed what is appropriate. Individualization is of real importance in sentencing. See R. v. Ipeelee, 2012 SCC 13 at par. 37.
Sentencing Precedents
[21] There is a wide range of sentences in cases of Criminal Negligence causing death because of the vast ways that the offence can be committed. See R. v. Linden (2000), 147 C.C.C. (3d) 299 (Ont. C.A.). Of the sentencing decisions provided to me, many were fact patterns involving driving deaths, such as R. v. Layugan [2016] O.J. No. 1725 (Thorburn J.); R. v. Czornobaj [2014] Q.J. No. 17831 (S.C.); R. v. Lam, [2003] O.J. No. 4127 (C.A.). In many of those, the fleeting nature of the delict and lack of aggravating factors attract a custodial sentence of several months, although in Lam the sentence was two years less a day for a very serious driving incident which resulted in the death of a young mother. Moving beyond driving cases, in R. v. Pitre 2015 NBQB 44, [2015] N.B.J. No. 63 (Q.B.) the offender had neglected to take care of an elderly person in her care. She pleaded guilty after the mistrial of her first trial, and received a sentence of 8 months jail. In R. v. Orders 2014 BCSC 771, [2014] B.C.J. No. 857 the offender neglected to hook up a safety line on a hang glider and a passenger fell to her death. Although the offender took steps to destroy evidence, Joyce J. accepted his explanation that he did so in a state of intense shock with no intention to obstruct justice. It was not considered an aggravating circumstance and Mr. Orders received a 5 month term of imprisonment.
[22] Similar to the driving cases are those where the offender knowingly placed the victim in a place of vulnerability which resulted in death. In R. v. Singh 2014 ONSC 6960 the offender did not comply with the Fire Code, and deceived a fire inspector about the compliance of the rental accommodation he owned. He received a 3 year sentence after a trial. In R. v. Kazelson 2016 ONSC 25 a worksite supervisor allowed workers to use a scaffolding he knew to be unfit for the job. The platform collapsed killing 4 men, and gravely injuring a 5th. That garnered a 3 1/2 year sentence.
[23] Cases of child neglect resulting in death also display a wide range. At one end is R. v. Matthews 1998 CarswellOnt 672 (C.A), where the Appellant left his 7 month old son in a bathtub for 2 ½ minutes to watch television and the baby drowned. In Matthews there doesn't appear to be any attempt to cover up the incident. The Court of Appeal varied the sentence to a 4 month conditional sentence. On the other hand, a parent whose child dies from forgetful neglect and took active steps to dispose of her body, and hide the crime received a 2 year sentence, which was upheld on appeal see R. v. Roach [1988] O.J. No. 2181 (C.A.). Roach is, in my view, of real help in fixing the appropriate sentence. When the sentencing contains aggravating facts such as longer term, more willful neglect, the custodial sentence is higher see R. v. Da Silva [2005] O.J. No. 5314 where the offender received a 3 year jail term which was described by the Court of Appeal as being at the low end of the appropriate range. In one case where the child abuse resulting in death contained neglect and beating the Court of Appeal upheld a 6 year sentence see R. v. Siconolfi, 2015 ONCA 896.
Sentencing Decision
[24] In this case Eva died because of an omission, namely forgetfulness. In isolation this pulls towards a custodial sentence at the lower end. The aggravating circumstances cry out for a lengthier custodial sentence, including being warned by the Ministry before the death, the breach of trust, and various steps taken after Eva's death to deceive all concerned. Fixing a jail term is not an exercise in precision, but after consideration I find that the appropriate custodial sentence to be 22 months.
Probation and Ancillary Orders
[25] In addition, Ms. Panfilova will be placed on probation for 3 years following the end of her custodial sentence. The terms will be:
i) Statutory terms;
ii) Report within 7 days of release of custody and thereafter as required;
iii) Reside at an address approved of by your probation officer;
iv) Do not seek, obtain or continue employment, whether remunerated or not, or become a volunteer in any capacity that involves being in a position of trust or authority towards persons under the age of 12 years;
v) Do not contact or communicate in any way with the parents or relatives of Eva Ravikovich;
vi) Do not attend within 500 meters of the place or residence or employment of the parents of Eva Ravikovich;
vii) Attend for any assessment or counselling that is recommended by probation and sign releases to enable the probation officer to monitor this condition.
[26] Criminal Negligence causing death is a secondary designated offence under s. 487.04. Given the circumstances of the offence, I have no difficulty in finding that it is in the best interest of the administration of justice that she supply a sample of DNA, and there will be an order under s. 487.051 for Ms. Panfilova to supply a sample of her DNA to the National DNA Databank within 7 days.
[27] There will be an order under s. 743.21 prohibiting Ms. Panfilova from communicating with Ms. Ekatrina Evtrapova and Vyacheslav Ravikovich while she is serving the custodial portion of her sentence.
May 19, 2017
Signed: Justice David S. Rose