R. v. Sinelnik Date:, 2011 BCPC 146

Citation: R. v. Sinelnik Date: 20110603 2011 BCPC 0146 File No: 179215-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NADIYA SINELNIK REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. RAVEN Counsel for the Crown: J. Spivey Counsel for the Defendant: C. Sicotte Place of Hearing: Surrey, B.C. Date of Hearing: May 9, 2011 Date of Judgment: June 3, 2011 [ 1 ] Ms. Sinelnik is charged with one count of impaired driving and one count of operating a motor vehicle with a blood alcohol content that exceeded the legal limit of 80 milligrams of alcohol in 100 millilitres of blood.

It is alleged these offences occurred on October 12, 2009 in Surrey, British Columbia. [ 2 ] On May 9, 2011, the first trial date set in this matter, Ms. Sinelnik requested a judicial stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms , arguing her s. 11(

b) Charter right to be tried within a reasonable time had been violated. [ 3 ] The chronology of events considered in this matter is as follows: October 12, 2009 Offence Date December 18, 2009 Information Sworn February 26, 2010 Arraignment Hearing and Trial Date Set May 9, 2011 First Trial Date Set (14 and a half months post Arraignment Hearing) [ 4 ] Ms. Sinelnik presented evidence and argued she suffered actual prejudice as a result of institutional delay in this case, therefore a judicial stay of proceedings should be granted. Crown counsel who cross examined Ms.

Sinelnik and her husband on the delay application, argued the prejudice suffered by Ms. Sinelnik was not causally related to the institutional delay, therefore a judicial stay should not be entered. [ 5 ] The leading authority on how a trial court determines when delay becomes unreasonable is R. v . Morin , [1992] S.C.R. 771. This case states the trial court should not apply a mathematical formula. It should make a judicial determination on whether s. 11(

b) Charter rights have been infringed by “balancing the interests which the

section is designed to protect against factors which either inevitably

lead to delay or are otherwise the cause of delay.” [ 6 ] The primary purpose of

section 11(

b) of the Charter is to protect the individual rights of an accused to security of the person, to liberty, and to a fair trial. The right of the accused to security of the person seeks to “minimize the anxiety, concern and stigma of exposure to criminal proceedings.” (R. v . Morin, supra, para. 28 ). The right to liberty is affected if an accused is the subject of restrictive bail conditions or pre-trial incarceration.

The right to a fair trial ensures that proceedings occur while the evidence is fresh and still available. [ 7 ] Society also has an interest in ensuring accused persons are dealt with humanely, fairly and in accordance with the law. [ 8 ] The Morin decision concluded that eight to 10 months of institutional delay was acceptable in Provincial Court cases. Once that threshold of delay is exceeded, the Court must consider the following factors in determining whether the delay is unreasonable: 1. The length of the delay; 2. Waiver of time periods; 3. The reasons for the delay, including: (

a) Inherent time requirements of the case; (

b) Actions of the accused; (

c) Actions of the Crown; (

d) Limits of institutional resources; and (

e) Other reasons for the delay. 4. Prejudice to the accused. [ 9 ] It is not disputed in this case that the guideline range set out in Morin has been exceeded. Defence counsel submitted impaired driving trials set for hearing in the Surrey Registry of the British Columbia Provincial Court are routinely set over 14 months from the date of the arraignment hearing. The significance of the arraignment hearing is that is the date the Crown and Defence appear before the Court to indicate they are ready to set a trial date and provide the Court with a time estimate for the trial.

Counsel are then sent to the office of the Judicial Case Manager to obtain the first available date for trial. In this case Crown and Defence Counsel were prepared to set a trial date on February 26, 2010. The first trial date provided to them was May 9, 2011, some 14 and one half months later. The Defence did not waive any delay in this case. [ 10 ] Crown and Defence counsel agree the only reason for the delay in this case is limits on institutional resources.

This has been a chronic problem in Surrey British Columbia for many years, as pointed out by Judge MacDonald, former Administrative Judge of the region, in R. v . Ircha 170936-01 Surrey Registry . He found 16 months of institutional delay on the borderline of what is unreasonable delay taking into consideration the limits placed on institutional resources in this region. He determined it was not so long a delay as to infer prejudice, and ultimately dismissed the application for a stay of proceedings based on the failure of the accused to present evidence of actual prejudice related to the delay.

This case cited the case of R. v . Godin (2009), SCC 26 (S.C.C.) on the issue of prejudice to the accused arising from delay as follows: “Prejudice in this context is concerned with three interests of the accused that s. 11(

b) protects; liberty as regards to pre-trial custody or bail conditions, security of the person in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge, and the right to make full answer and defence insofar as delay can prejudice the ability of the defendant to lead evidence, cross- examine witnesses or otherwise to raise a defence.” (para. 30). [ 11 ] Whether an accused suffers actual prejudice from institutional delay is a fact to be determined by the trial Judge based on the evidence presented. In R. v .

Ark, 2010 BCPC 63 , Judge Hicks determined a 17-month delay resulted in prejudice to Mr. Ark because the passage of time affected the recall of witnesses, in turn affecting Mr. Ark’s ability to make full answer and defence to the charge of driving with a blood alcohol level that exceeded the legal limit. [ 12 ] In R. v . Ayers 2010 BCPC 86 , Judge Gordon referred to Surrey as the “problem child” of s. 11(

b) of the Charter . The case before her involved a count of impaired driving and refusing the breathalyzer. There was a five-month delay between the date of the offence and the date the information was sworn, and a 13 and one half month delay between the arraignment hearing and the first trial date. The defence submission in that case included an argument that delay in Surrey is greater than in other areas of the Lower Mainland of British Columbia.

The defence argued that 19 years post- Morin “it is not defensible that some suburbs of Vancouver have different constitutional standards than others.” The Crown submitted Surrey has always had resource issues and it is a “special case” warranting a conclusion that the delay was not unreasonable in view of local circumstances. Judge Gordon cited the Morin decision in support of her finding that resource limitations cannot be used to render s. 11(

b) of the Charter meaningless. She inferred prejudice taking into consideration the unreasonable delay of five months to swear the Information and the further 13 and one half month delay to obtain a trial date. In addition she found the accused suffered actual prejudice due to memory loss, loss of a potential defence witness, continued anxiety and the accused’s inability to advance his career in property development resulting in an estimated $50,000.00 financial loss. [ 13 ] The decision in R. v . Hummerston, 173844-01, involved a 20-month delay from the date of the information to the date of trial.

This case involved the offence of mischief and the accused alleged actual prejudice relating to caregiver costs for his mother while he attended Court. Judge Ball reiterated the local circumstances of trial setting in Surrey with reference to the Ircha decision, supra . He pointed out that society’s interests in bringing an accused to trial must be balanced against the accused’s right to be tried within a reasonable time. This balancing exercise is fact dependent and turns largely on whether the accused proves inferred or actual prejudice

resulting from the delay. R. v . Martin, 2000 BCSC 1043 . Judge Ball determined delay was not inferred in this case, pointing out that an earlier trial date was available to the Court, but Defence counsel was not available on that date. He also found the accused’s allegations of prejudice “speculative and incomplete.” The accused failed to provide evidence supporting his mother’s need for care and to causally link any alleged prejudice to the three interests protected by s. 11(

b) of the Charter , specifically security of the person, liberty and the right to a fair trial. Emphasizing that findings of unreasonable delay are fact driven, Judge Ball stated: “… the quality that distinguishes cases, those cases where a stay was granted from those where it was not, turns on whether prejudice is established, which is a factual inquiry and case specific.” [ 14 ] Judge Gulbransen, current Administrative Judge of the South Fraser Judicial District which includes Surrey, rendered two decisions on applications for a stay of proceedings on November 22, 2010. Both R. v .

Moskal, 2010 BCPC November 22, 2010, and R. v . Matson, 2010 BCPC 295 November 22, 2010 , involved accused persons facing charges of impaired driving. In both cases the delay from the arraignment hearing to the first trial date was 13 months. In Moskal , the trial was adjourned on the first date set for trial due to lack of Court time, and was re-scheduled approximately 12 months later, for a period of institutional delay totaling 25 months. Similarly in Matson , the matter was adjourned on the first date set for trial due to lack of Court time to hear the case.

It would have been re- scheduled some 10 and one half months later, however defence counsel insisted on an earlier date and the adjournment was for a further five months for a total institutional delay of 18 months. [ 15 ] In Moskal, Judge Gulbransen plainly stated institutional delay in Surrey is caused by the reduction in the number of Court days available to handle criminal cases in the past five years, the decrease in the total number of “Judge days” over the past five years due to a lack of new appointments to replace Judges who have retired or work part-time on the Senior Judges’ Program, and reductions in Court staff and sheriffs which effectively restrict the number of Court days that can be set.

These reductions occurring over a number of years have created a significant backlog and Court overbooking, resulting in increased delays to trial. In Moskal, Judge Gulbransen said: “…the Provincial Court cannot expect to be immune from necessary budget cuts or spending restrictions in the face of an economic crisis. But, the Supreme Court of Canada has made it clear that the time will come when the courts can no longer accommodate an explanation for lengthy institutional delay that there is just no money for the court system. In Surrey, that time has come.” [ 16 ] Citing the case of R. v . Walker, [1998] B.C.J.

No. 409 , a case that inferred prejudice to an accused who waited 20 months for an impaired driving trial, Judge Gulbransen found Mr. Moskal was prejudiced by waiting 25 months for his impaired driving trial, and granted a stay of proceedings based on inferred prejudice. [ 17 ] In the Matson decision, prejudice was not inferred from the institutional delay of 18 months, however the Court accepted the evidence of Ms. Matson that she suffered from considerable worry and anxiety, depression and bi-polar disorder, all of which were exacerbated by the length of time it took to have her trial heard.

She sought medication from her doctor to allow her to sleep at night. Judge Gulbransen found Ms. Matson proved actual prejudice, specifically acute anxiety arising from the charges “hanging over her head” for an inordinate length of time, and granted a stay of proceedings in the matter. [ 18 ] The case of R. v . Oliviera-Reynolds 175455-1 Surrey Registry, December 1, 2010, dealt with an application to stay proceedings due to delay, in the context of a charge of failing to provide a breath sample. The institutional delay in this case was determined to be a little over 15 months.

Judge MacDonald determined this was not an unusually long delay in Surrey and taking into consideration local circumstances refused to infer prejudice based on the length of the delay alone. In this case defence counsel conceded no actual prejudice was demonstrated. The Court also determined the accused did not suffer any actual prejudice, therefore the application for a stay of proceedings was dismissed. [ 19 ] In R. v . Chekaluk 176722-1 Surrey Registry January 6, 2011, the Court dealt with an accused charged with impaired driving and refusal to provide a breath sample.

The institutional delay in this case was 14 and one half months. Judge Harris determined that prejudice could not be inferred from the length of the delay alone. The accused testified with respect to allegations of actual prejudice; however, the Court found the prejudice related to the nature of the charge and not the delay. The accused’s application for a stay of proceedings was dismissed. [ 20 ] In R. v . Bowes 2011 Surrey Registry 174275-1 , Judge Walker dealt with an application to stay a charge of driving with a blood alcohol level that exceeded 80 milligrams of alcohol in 100 millilitres of blood.

The institutional delay she addressed was 19 months. She commented as follows: “…the issue of delay is something with which trial judges have to struggle increasingly in Surrey Provincial Court.” [ 21 ] The accused Mr. Bowes was married to an American who lived in Ferndale, Washington. Mr. Bowes did not qualify for a Nexus card while his criminal charge was outstanding in Canada and he testified his ability to cross the border to be with his wife was affected by the delay in completion of his criminal trial in Canada.

Judge Walker found the following: “I find that the usual anxiety suffered by any accused before the Courts was compounded by the delay, and in particular I find the impact on the simple issues as to where it is he is to live and what employment he is to have in the future have been significantly impacted by the ongoing delay.” [ 22 ] Finding actual prejudice to Mr. Bowes was proven, a stay of proceedings was granted. [ 23 ] In R. v . Vinet 2011 Surrey Registry No. 17469 February 3, 2011 , Judge Jardine dealt with an application for a judicial stay involving a charge of impaired driving.

The delay from the date of the arraignment hearing to the first trial date was 13 months, 11 days. Mr. Vinet testified the delay took a significant toll on his emotional health, resulting in weight loss and physical pain from muscle tension. He estimated he lost $15,000.00 in income as a realtor during the time he served a three-month administrative driving prohibition. In granting a stay of proceedings based on a finding of actual prejudice, Judge Jardine stated: “I am satisfied that he has experienced significant worry, anxiety, concern, embarrassment, and the stigma of being charged criminally.

These factors have been accentuated by the delay.” [ 24 ] The number of applications for a stay of proceedings due to an alleged violation of the accused’s s. 11(

b) Charter rights continue to abound in Surrey, particularly with respect to charges involving impaired driving. This may be because the length of time to trial in these cases appears to have increased in the past year. In the case before me, the length of time from the arraignment hearing to the first trial date is 14 and one half months. Recently I heard a similar application in another case on which I will deliver reasons later this month. The delay to a first trial date from the arraignment hearing in that case was 15 months.

It is not unusual for impaired driving trials to be double and triple booked in Surrey Courts with the result that there is a probability one or more of the trials will have to be adjourned, causing further institutional delay. [ 25 ] Keeping in mind the factors set out in the Morin decision and my review of recent decisions in similar cases decided in Surrey over the past year, I turn to the facts of the case before me. [ 26 ] Ms. Sinelnik has been married for 23 years to an aircraft mechanic who works for Air Canada.

She has an education degree from Manitoba where she and her family resided until 2006 when they moved to British Columbia. Ms. Sinelnik would like to upgrade her education so she can obtain a teaching certificate in British Columbia. Until that occurs she has been employed at Evergreen Daycare where she is required to drive a bus to transport the children attending the daycare. She testified she had a clean record for over 20 years prior to the incident that brings her before the Court.

She further testified uncertainty over whether or not she will have a driver’s licence has caused her significant anxiety and stress which increased by the delay in having a trial, for the following reasons: 1. She has not told her employer about the outstanding charges and she fears she will lose her job if she is convicted and cannot keep her driver’s licence. 2. Her husband received a lay off notice from his employer on May 4, 2011.

In order to maintain employment with Air Canada, he must move to Toronto and incur an additional expense of approximately $1,000.00 per month to commute back to Vancouver to see his family. Both Ms. Sinelnik and her husband testified this recent change means Mr. Sinelnik will not be available to assist Ms. Sinelnik in transporting herself and their 13 year old child for work, school, and extra-curricular activities. Ms. Sinelnik testified she has no other relatives in Vancouver and the move of her husband leaves her without support and another adult driver in the home.

She and her husband testified if her trial had completed sooner, her inability to drive in the event of a conviction would not have been as prejudicial as it now would be, as she will not have her husband to assist her. 3. The Sinelnik family would have been in a better position financially and emotionally to deal with Ms. Sinelnik’s possible conviction for impaired driving had the trial occurred last summer or fall. Now the potential financial consequences of Ms. Sinelnik losing her licence and job places a greater strain on the family because Mr.

Sinelnik is also incurring a financial hardship to relocate in order to maintain his employment. 4. If Ms. Sinelnik loses her driver’s licence following a conviction at this time, she will have to put on hold her plans to upgrade her qualifications to teach in British Columbia because her husband will not be available to drive her to and from evening classes. This delays Ms. Sinelnik’s ability to earn a greater income which she needs to help support her family. 5. Ms. Sinelnik has been emotionally distressed since the time of her arrest.

Initially her worry and anxiety related primarily to the embarrassment of being charged with a criminal offence, which is similar to the distress faced by many accused. However in this case, Ms. Sinelnik testified the delay in resolving the matter has taken a significant toll on her emotionally. She is frequently reduced to tears and notably was distraught throughout her evidence on this application.

Her husband testified his wife’s level of anxiety and distress resulting from the outstanding charges and delay in resolving them has been a constant factor in their life since the date of the offences. [ 27 ] Counsel for Ms. Sinelnik submitted the evidence presented by Ms. Sinelnik and confirmed by her husband’s testimony proves actual prejudice attributable to the delay in this matter. On that basis Ms. Sinelnik argued her s. 11(

b) right to a trial within a reasonable period of time was infringed and the remedy for this violation is a judicial stay of proceedings. [ 28 ] The Crown submitted the evidence of prejudice in this case was not causally linked to the delay as opposed to the nature of the offence; therefore it is not actual prejudice as described in the Morin decision. A judicial stay of proceedings is an extraordinary remedy which should not be granted unless the accused proves her right to liberty, security of the person or her right to make full answer and defence has been infringed.

The Crown further submitted the prejudice alleged must relate to Ms. Sinelnik, not her family. [ 29 ] Based on my review of the cases, I find the institutional delay of 14 and one half months, although unfortunate, does not cause me to infer prejudice in this case. The issue is whether Ms. Sinelnik has presented evidence to prove actual prejudice arising from the delay. Her liberty was not affected by the delay as she was not the subject of any bail conditions, nor was she incarcerated.

The evidence presented does not satisfy me that her memory has faded or she would be unable for other reasons to make a full answer and defence. I am however satisfied that Ms. Sinelnik has suffered significant worry, anxiety, and embarrassment as a result of the charges she is facing, which has been significantly exacerbated by the delay in the trial. Also, as a direct result of the delay, I find Ms. Sinelnik would now suffer a more significant financial and emotional hardship in the event of a conviction and loss of her licence, because of her husband’s relocation for work purposes. The ability of Ms.

Sinelnik to receive emotional support from her husband and assistance in caring for their 13-year old daughter has been significantly impacted by the delay in this case with the result that a trial at this late date could leave Ms. Sinelnik with no driver’s licence and no assistance from her husband to help transport herself and their child. Ms. Sinelnik has no other relatives in Vancouver so the loss of her licence at the same time that her husband is required to move impacts more severely upon her than other accused persons in her position. Based upon all of the evidence presented I find Ms. Sinelnik’s s. 11(

b) right to security of the person was violated by the delay in bringing this matter to trial. In particular, her anxiety, concern and stigma of exposure to criminal proceedings was significantly accentuated by the delay, as was her anxiety with respect to her employment prospects. I find Ms. Sinelnik has proven actual prejudice and therefore I am entering a stay of proceedings in this matter.

________________________________ The Honourable Judge R. Raven Provincial Court of British Columbia