David Andrew Connally

The applicant, George Flowers, sought a stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms, alleging breaches of his section 11(b) right to a trial and sentencing within a reasonable time.

The charges involved aggravated sexual assault.

The application was based on three grounds: unreasonable pre-verdict delay, unreasonable post-verdict delay exceeding the presumptive ceiling set by R. v. Charley, and unreasonable post-verdict delay even if below the ceiling.

The court found that the net pre-verdict delay was below the Jordan ceiling and the applicant failed to demonstrate unreasonable delay.

For post-verdict delay, the court accepted that dangerous offender proceedings under Part XXIV of the Criminal Code constituted exceptional circumstances, and the net post-verdict delay, after accounting for these circumstances, did not exceed the Charley ceiling.

Consequently, the application for a stay of proceedings was dismissed.

The accused was charged with possessing and making available child pornography.

The central issue at trial was the admissibility of evidence seized from his BlackBerry cell phone without a warrant, specifically whether exigent circumstances justified the warrantless seizure under s. 8 of the Charter.

Police seized the phone after identifying the accused at a Tim Hortons, concerned about potential evidence destruction.

A search warrant was subsequently obtained to examine the phone, which revealed incriminating evidence on an attached memory card.

The court found that exigent circumstances existed, making the warrantless seizure reasonable and not a violation of s. 8 of the Charter.

Alternatively, even if a s. 8 violation occurred, the evidence would not be excluded under s. 24(2) of the Charter, given the seriousness of the offense, the good faith of the police, and the minimal impact on privacy interests due to a subsequent warrant.

The application to exclude evidence was dismissed.

The accused applied for a stay of proceedings alleging a breach of the right to trial within a reasonable time under s. 11(b) of the Charter.

The charges, including attempted murder, were laid in 2002 but the accused was not arrested until 2009 while residing in South Korea, resulting in approximately 11 years of delay before trial.

The court held that the Crown failed to take reasonable steps to bring the accused to trial despite knowing his whereabouts and having extradition options available.

Most of the delay was attributable to Crown inaction rather than inherent requirements or actions of the accused.

Given the exceptional delay and resulting prejudice to liberty, security, and fair trial interests, the court concluded that the accused’s s. 11(b) rights were violated.