The defendant in a high-profile Penticton fraud case may have to receive his verdict over Facetime in a hospital bed.
Michael Elphicke, one of two men charged with fraud and theft over $5,000 and unauthorized operation of a lottery scheme, has been in declining health since around 2011, on dialysis due to kidney failure.
Since his trial ended late in September, Elphicke has reportedly gone to hospital with an infection in his foot, and defence lawyer James Pennington said on Thursday part of his foot has since been amputated.
Elphicke’s toes and the ball of his left foot were reportedly removed to stop the infection in its tracks, and doctors believe it was successful — but it will still be a few days until doctors are sure of it.
“I contacted my learned friend from the Crown to give him a heads up as to what was going on,” Pennington told the court, adding both parties thought it best to put the matter before the judge.
Because he is in an Alberta hospital, and there may be some requirement that he stay in the hospital to ensure his infection has not spread and to undergo rehabilitation, he may not be able to make the court date for the verdict.
The Criminal Code of Canada mandates that the defendant be capable of visual and audio communication during a trial and verdict. It’s not unusual for defendants to appear by video conferencing in provincial jails where they are too distant to make the trip to the courthouse.
But while that infrastructure is commonplace, lawyers and the justice overseeing the matters were faced with finding a way to make it happen in Elphicke’s circumstance.
“The video equipment could be brought to them, depending on their location, and set up. I’ve dealt with that a least a couple of times in my brief experience with the Crown,” said lawyer Patrick Fullerton, suggesting either video conferencing through a local court near Elphicke’s current location or a video calling app such as Facetime or Skype.
“I have heard of Facetime. That’s as far as my familiarity goes with it,” Pennington responded, adding he was interested in considering it.
Justice Gary Weatherill suggested that there could be a concern that Elphicke might not be alert, if he is on painkillers or other medications.
Because of questions over the practicality of a video call with Elphicke in his hospital bed, lawyers will reconvene next week to determine the viability of that option.
Lawyers also addressed the issue of a Charter of Rights and Freedoms application on the case, with respect to the R. v Jordan ruling from 2016, which set a specific length of time a defendant can go between when charges are sworn and when a trial ends.
For superior court cases, such as Elphicke’s, that limit is 30 months, set as the reasonable length by the Supreme Court of Canada, whereas Elphicke’s case has run for upward of 32 months.
But it’s unclear whether enough delays occurred as a result of the defence, as to offset the excess trial length enough to keep the trial within Jordan’s parameters. As a result, Pennington has requested transcripts of previous meetings to try to determine that, but with a late application, those transcripts are still in the works.
Fullerton argued that because Pennington knew of the trial length when dates were set last October, he had issues with the Charter application coming up at the end of this September.
But Weatherill countered that if a Charter application is made, it should be heard, adding the application can be debated after the verdict is settled, if the transcripts do not arrive in time.
Because Weatherill is retiring from the bench as of Nov. 24, he added a different justice may oversee the Jordan application and, if Elphicke is convicted, sentencing.