The Crown is seeking jail time for a man convicted of defrauding Okanagan hockey parents of thousands of dollars, while the defence appears to be seeking a suspended sentence.
Defence lawyer James Pennington said Michael Elphicke has been in and out of hospital since his conviction last October of fraud and theft over $5,000 and unauthorized operation of a lottery scheme for a failed youth hockey trip to Europe.
Elphicke’s co-accused, Loren Reagan, has been in custody since his arrest in early March, awaiting trial on the same charges after he skipped the trial last September.
In court Monday morning, Pennington hinted at a conditional sentence or a suspended sentence. The latter would mean a period of probation instead of incarceration, while the former would likely mean house arrest.
Meanwhile, Crown lawyer Patrick Fullerton said he was seeking an actual jail sentence, noting the amount of money involved in the crime and the fact that it was a crime involving a breach of trust.
Fullerton has regularly chided the defence in this case for what he views as delay tactics, undermining the legal process. Several hearings have been held attempting to set a sentencing since early this year, and in fact a Monday morning hearing was scheduled for sentencing.
Instead, the court heard a defence application to run Elphicke’s sentencing hearing over video, something that has been in consideration for this sentencing for some time.
Pennington pointed to health concerns. A doctor did submit a letter suggesting excessive travel could cause further injury to his foot, and potentially further amputation.
However, Fullerton called the application “moot,” suggesting there would be evidence heard in the sentencing. While there had not been any expectation of fresh evidence being brought forward in the sentencing hearing, Fullerton said he would be calling evidence from B.C. Corrections in light of Pennington’s suggestion Elphicke might not be medically fit for incarceration.
While he did note Elphicke appeared over video for the verdict hearing, Fullerton said there was no evidence heard during that hearing.
He also took aim at the vagueness of the doctor’s letter, which did not quantify any risk, and despite Fullerton’s attempts to get clarification, the doctor has been “unprepared to communicate” with him.
He added that there is a strong public interest in Elphicke being sentenced in the community, noting media presence and coverage of the trial and subsequent hearings.
“The application must fail. It must be dismissed,” he said. “The letters we have from (the doctor) speak of excessive travel (concerns). Beyond that, we don’t know what that means. My friend doesn’t know what that means. In the Crown’s submission, this application is deficient on that basis alone.”
The judge accepted that there was a dispute over Elphicke’s health-related fitness for incarceration, suggesting there would be new evidence heard in the sentencing hearing.
The judge also did show some sympathy to Elphicke’s need for dialysis, and whether that could be achieved while in RCMP cells for the duration of the sentencing hearing. But an exasperated Fullerton responded that he has not received any information on that, either.
After Fullerton’s 40-minute submissions, Pennington conceded that hearing Crown evidence would render his application moot. Justice Austin Cullen agreed with that notion, and dismissed the application.
The matter will return to the courtroom on May 7 to fix a date for the sentencing hearing, with little expectation of a hearing until at least mid-July.