The defence in a case of an alleged major fraud and theft could be let off on a technicality.
Defence lawyer James Pennington, representing Michael Elphicke, is submitting an application to invoke what is commonly referred to as the Jordan ruling, a Supreme Court of Canada decision last year that set strict time limits between charges sworn and the end of a trial.
In provincial courts, that time limit is 18 months, whereas upper courts have up to 30 months to come to a close. Charges were laid against Elphicke in January 2015, well over the 30-month limit.
Defence and Crown lawyers laid out their final arguments Wednesday in the six-year-old case, in which Elphicke is accused of fraud and theft over $5,000 and management of an unauthorized lottery scheme.
Those charges come after a European hockey tour organized by Elphicke and co-accused Loren Reagan’s Okanagan Elite Hockey Association for young players in the Okanagan and family members dissolved in January 2012. Reagan did not show up for his trial and a Canada-wide warrant was issued.
Despite over $180,000 poured into the trip by hockey parents, just $13,000 remained in OEHA bank accounts that month — not enough for the organization to make its next payment to Azorcan Global Tours, which was planning the tours.
While some of that money reportedly did go into costs of the tour — particularly a $15,000 deposit to Azorcan — the great majority of that money went either to the Elphickes, to Reagan or to a failed hockey dorm the pair were involved in.
In his closing arguments, defence lawyer James Pennington noted that there was never any evidence of intentional deceit, which he laid out as a line to cross to prove fraudulent behaviour.
But Crown lawyer Patrick Fullerton took issue with that argument, countering that fraudulent behaviour is illegal regardless of intent.
“Mr. Elphicke significantly put the hockey parents’ money at risk, and did so knowingly and did so not knowing anything about what he was putting that money into,” Fullerton said, referring to cheques Elphicke co-signed toward Reagan.
“My friend indicated from his point of view Mr. Elphicke’s behaviour was not the course of a conman or a fraud. It was an awful lot of work to make a go at a legitimate enterprise,” Fullerton said. “Trying to pigeonhole somebody’s conduct as appearing to be a con or not to be a con is inappropriately restrictive. Cons don’t take on a single shape or size.”
The court heard this week that Elphicke was aware that Reagan had been untrustworthy with OEHA money, and even took steps at the direction of the Bank of Montreal to mitigate the risks, including adding a two-signature rule to cutting cheques.
Despite that, Fullerton argued Elphicke continued to co-sign cheques to Reagan and a failed hockey dorm project, including $20,000 that went toward the project — one which Elphicke claimed not to be a significant part of.
“His own testimony is that he was actually overseeing tender contracts from subcontractors to ensure that they met or were compliant with pre-set budget amounts of money,” Fullerton countered.
“That’s actually a fairly significant role to be playing, in the Crown’s submission. It stands at odds with his assertion that he was just a non-participating director of the numbered company.”
Because he knew he was risking significant amounts of money that went into the company from parents, all of whom testified that they had no indication that the venture was for profit, Fullerton argued there was sufficient evidence of fraud in the case.
In fact, Elphicke allegedly emailed Reagan in August 2011 to indicate the word “association” in the OEHA name could indicate to parents that it was a non-profit organization, and parents testified much the same.
But it is alleged Elphicke never attempted to clarify the nature of the organization to parents.
“Mr. Elphicke knew that parents were unaware of the dorm project, in particular, nor the person using the hockey tournament money for personal use,” Fullerton said.
“That, in Crown’s submission, is the dishonest act, the prohibited act.”