DATE: 20040303

DOCKET: C39252

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) – and – ZUHAIR (ZOHER) GORGES, RABIH SALEH AND GORAN DRESIC (Respondents)

BEFORE: FELDMAN, SHARPE JJ.A. and McCOMBS J. (ad hoc)

COUNSEL: Riun Shandler For the appellant

Jennifer Gleitman For Goran Dresic

Zuhair Gorges In person

HEARD: March 1, 2004

RELEASED ORALLY: March 1, 2004

On appeal from the order staying the proceedings by Justice John H. Brockenshire of the Superior Court of Justice, dated November 15, 2002.

E N D O R S E M E N T

[1] The Crown appeals from the decision of the trial judge to stay the charges against the respondents on the basis that the respondents’ s. 11(b) rights were breached when the total delay between the charges and the trial date was thirty-three months. We agree with the conclusion reached by the trial judge.

[2] At the outset of the trial the Crown conceded that there was no express waiver of their s. 11(b) rights by the defendants and that the thirty-three month delay required an inquiry. The trial judge focused on the institutional delay caused by the failure of the preliminary inquiry judge, by the trial judge himself as the assignment court judge, by the relevant trial coordinators and by all counsel involved in failing at each point along the way to address the delay issue before setting dates several months ahead in order to accommodate the schedules of counsel or the court.

[3] In our view, the trial judge was correct, both in his conclusion that this case reflected a culture that accepted delays as inevitable rather than recognizing that dates must be set in order to accommodate s. 11(b) and to ensure that the trial date is reached within a reasonable time, and in his observation that the previously accepted lengthy adjournment delays are now completely unacceptable.

[4] We would therefore dismiss the appeal.

Signed: ____ “K. Feldman J.A.”

_____ “Robert J. Sharpe J.A.”

_____ “D. McCombs J. (ad hoc)”