While a Sudbury contractor accused of more than 40 counts of fraud will still hear whether or not a judge finds him guilty, it may not matter much either way.
In another of the twists that have underscored the years-long court battle for Ecolife owner, David Murray, who is accused of defrauding his clients of $800,000, a judge has now ruled that the entire case has taken too long.
That ruling means that Murray will still hear his verdict, but the charges themselves could be entirely moot. As the trial was completed, Justice Sharon Murphy will still give her verdict, however if it’s guilty, no sentence would be given.
Murray’s lawyer told Sudbury.com that as there are still court actions to come, including oral submissions and an appeal of the decision from the Crown, it’s not quite set in stone.
Adam O’Brodovich, Murray’s fifth lawyer on the file, told Sudbury.com of the Section 11b application and decision, which was held earlier than expected and unannounced to the media.
He said Murphy found that Murray’s series of trials added a 21-day excess in the allotted time for a provincial case to work its way through the courts.
Section 11b (also called the Jordan ruling) stems from the precedent-setting R. v. Jordan (2016) and refers to an accused’s Charter right to trial in a reasonable time. The time count begins from the laying of the charge up to and including the date the sentence is imposed.
Unless waived by the accused or because of delays caused by defence actions, the Jordan ruling established specific timelines: generally, 18 months for provincial court cases and 30 months for Superior Court cases. This will be decided by the judge based on arguments by counsel, when submitted.
In Murray’s case, the application was submitted in June.
In late September, Justice Sharon Murphy issued what O’Brodovich described as a “very detailed ruling” and noted that she decided that the case had gone on too long and in doing so, she stayed the charges against Murray.
A Stay of Proceedings is the most drastic of remedies available to a court, per the 1985 judgement of the Supreme Court of Canada in R.v. Jewitt.
The decision states that charges that are stayed judicially may never be prosecuted and for these reasons, a stay is reserved for only those cases of abuse where a very high threshold is met: "A judicial stay of proceedings is not granted because the accused is entitled to an acquittal but rather because the Crown is disentitled to a conviction.”
However, while O’Brodovich told Sudbury.com that Murphy “decided that a stay will ultimately be entered,” the word ultimately is key.
“It's not in effect at this moment,” he said. “At this point, the intention is to still hear submissions on the case and the charges, but there is a written decision that was released, which essentially states that the Charter rights were breached and that the remedy is a stay of proceedings.
The case, said O’Brodovich, has been ongoing for “thousands of days.”
The first 35 charges of fraud over $5,000 against Murray date back to 2016, but he was first arrested and charged in 2019 for taking deposits for work, but never completing it.
You can find Sudbury.com’s initial timeline of the case here.
But the case has suffered a number of setbacks, including an ongoing health issue with the presiding judge, the COVID-19 pandemic and the inherent delays it caused, as well as what O’Brodovich conceded was “a decent chunk of defence delay.”
That chunk includes four previous attorneys: first George Fournier, then Antoine-Rene Fabris, Anthony Orizietti, Stefan Peters and now, Toronto-based O’Brodovich. Though it is unclear why the relationships Murray had with Fournier and Peters ended, both Fabris and Orizietti were removed as counsel due to a disagreement on the course of his defence.
Then, the trial was restarted June 2 of this year after there had already been 32 days of testimony in the case in 2024. The Crown (previously Peter Travers) had already rested their case and Murray had testified to 10 of the 35 counts.
However, under the law, when a new judge is assigned in the middle of a trial — as Justice Sharon Murphy of Windsor was when the previous justice was unable to continue — it is up to the defendant to decide whether prior testimony, by way of trial transcripts, can be used to bring the new judge up to speed.
Murray elected to start fresh, meaning all prior testimony is now meaningless and the trial had to start again from the beginning. The Crown was then headed up by Mitchell Flagg from the province's Serious Fraud Office.
In addition to calling 40 complainants to testify, Flagg spent 32 hours grilling Murray over several days in July and August after more than 35 days of testimony in this hearing alone.
“But the bottom line is— and it looks like a pretty close call, you could say — the breach was 21 days in excess of the 18-month Jordan limit,” said O’Brodovich. There was contention between the two sides, said O’Brodovich and he spoke of the very large and complex factums that both sides submitted.
“There was a large portion that we disagreed on, me and the Crown, and just, ultimately, it just was over the 18 months,” he said. “Fully broken down in Murphy's carefully written decision, it is over, it was a breach, and the appropriate remedy, in that situation, is the stay of proceedings”
But there is still a decision to be heard relative to the trial, as it had finished prior to the Jordan challenge.
In his cross-examination of Murray, which was the first time the accused had faced court questions from anyone but his lawyer, Flagg detailed Murray’s existing criminal record as well as confirming that Murray did not hold client deposits, office expenses or employee wages in separate accounts.
But the crux of the case, at the time, was Murray’s inability to complete contracts, offer refunds for unfinished work and later, lose his license, due to the cancellation of a provincial grant he was encouraging home owners to use, the GreenOn program.
At trial this summer, Murray admitted to backdating contracts and continuing to take GreenOn-based contracts despite the cancellation of the program. Flagg suggested to Murray he continued to sell the rebate as it would encourage people to invest more in the reno than they would normally.
Murray denied this, and every other suggestion Flagg made, consistently referring back to the GreenOn program cancellation.
“I’m a proud man, and I lost everything. I have to speak my truth. My hope was that at some time, the federal government would come back and fix this so no one would lose money,” Murray told the court.
You can read more details of testimony here.
But while Murray’s charges may not net any sentencing, he will still hear whether a judge finds him guilty or not guilty.
It’s also important to note that new precedent surrounding fraud cases has removed a central aspect: whether or not the deception was intentional. As described by Justice Murphy, “The general concept of dishonesty — which might manifest itself in deceit, falsehood or some other form of dishonesty — and what constitutes a lie or a deceitful act … is judged on objective facts,” she said, meaning it’s not the defendant's intent to deceive that’s at issue, but rather what a reasonable person would consider to be a dishonest act.
Essentially, Murray did not have to deceive his clients intentionally for it to be seen as fraud, said the judge.
Oral submission on the Section 11B Charter challenge will be heard on Oct. 31, and next steps in Murray’s case will be decided from there.
But as it stands, Murray will likely leave the courtroom a free man.
Jenny Lamothe covers vulnerable and marginalized populations, as well as housing issues and the justice system for Sudbury.com.