An application to toss a guilty verdict on major fraud charges in the Okanagan, due to the lengthy time it took to get to trial, was denied by a judge in Penticton’s B.C. Supreme Court chambers Thursday.
Michael Elphicke was found guilty in October of fraud and theft over $5,000 and unauthorized operation of a lottery scheme, over the failed Okanagan youth hockey tour of Europe which was supposed to happen in 2012.
Despite raising about $184,000 from parents and through a raffle scheme, which was not authorized by the B.C. Lottery Corporation, no hockey trip ever came about — by mid-January 2012, just $13,000 remained in the Okanagan Elite Hockey Association accounts.
Elphicke's hockey fraud trial took 32.4 months from charges sworn to final testimony, but court found trial likely could have been completed within 30 months if moved to Kelowna, which Elphicke opposed. #Penticton
— Dustin Godfrey (@dustinrgodfrey) November 16, 2017
Justice Bruce Greyell delivered his decision Thursday morning, after hearing the case for and against the Charter application on Wednesday.
The application stems from a summer 2016 Supreme Court of Canada ruling in July 2016, in which the courts determined an accused undergoing a superior court trial should not have to wait more than 30 months between the time the charges are sworn and the trial’s finish.
Charges were sworn against Elphicke — as well as co-accused Loren Reagan, believed to be in Kuwait — in January 2015, but did not go to trial until September 2017, making 32.4 months to the end of trial.
One particular delay came in May 2016, when the Crown was forced to change counsels on the matter, as the lawyer at the time had been suffering health issues, with Crown counsel Patrick Fullerton filling in.
“It is difficult to ascribe a time delay resulting from this factor, because Mr. Elphicke decided at the pretrial conference proceeding … to change his plea,” Greyell added, referring to Elphicke’s change of election from a Provincial Court trial to Supreme Court.
“Mr. Fullerton was not made aware of that decision by Mr. Elphicke until just prior to May 13. That resulted in delay in this matter being scheduled in this court.”
With advanced notice of Elphicke’s change of trial mode election, Greyell said Fullerton could have taken steps to fix a date for the trial earlier.
Greyell also noted the issue of delays was raised more by Crown than by Elphicke and defence lawyer James Pennington following the May pretrial conference.
“In particular, the issue of delay was not raised when the dates for trial were being discussed in the period of February through September 2017.”
During discussions held in fall 2016 on various dates to attempt to fix a date for the trial, it became clear there would be difficulties getting a trial before entering “Jordan territory.” While Pennington was available in early 2017 and into the summer, Reagan’s lawyer was not available for the five-week trial until November this year.
After thinning the trial down to three weeks through admissions in pretrial proceedings, it was determined the trial could run in summer this year in Kelowna or in September in Penticton.
Though all parties agreed the issue was born and bred in Penticton and should be heard in the city, the Crown and judge agreed it would be best to do the trial at earliest convenience, even if that had to be held in Kelowna. But Pennington took issue with moving the trial up the valley.
“Elphicke was given the opportunity by both Justices Cullen and Weatherill to have the trial heard in Kelowna, where there were more courtrooms and court judges available,” Greyell said.
“While there is no evidence on the record as to when the trial might have been heard, had it been moved to Kelowna, it is clear to me from the comments of the associate chief justice and Justice Weatherill that that time could have been found, had the matter heard in Kelowna, within the Jordan time.”
On top of benefiting from just under $20,000 of hockey parent and raffle money from the OEHA, in his verdict Greyell also found Elphicke culpable in the tens of thousands of dollars that went toward Reagan, having signed off on numerous blank cheques for his business partner, who reportedly raked in nearly $40,000.
Another $44,000 went toward Reagan’s failed hockey dorm project in Penticton, a forensic accountant testified during trial.
Both Fullerton and Pennington said last they heard Reagan was still out of the country.
Elphicke, who appeared for his verdict hearing over video from a Calgary hospital in October, was not present for the decision on Thursday.
A pre-sentence report will be ordered prior to the sentencing hearing, which Greyell, retiring early next week, will not preside over.