In what could be seen as a fruitless exercise in justice, David Murray spent Oct. 31 in court hearing further submissions on his more than 40 fraud charges, all with the knowledge that but for an appeal, those charges are meaningless.
That’s because in another of the twists that have underscored the years’ long court battle for the Sudbury contractor and former owner of Ecolife, accused of defrauding his clients of $800,000, Justice Sharon Murphy has now ruled that the entire case has taken too long.
But because all of the evidence was entered in the case ahead of the Charter of Rights challenge that saw Murray’s charges stayed in late September, Murphy will still be rendering her verdict on charges that, separate from a successful appeal by assistant Crown attorney Mitchell Flagg, are moot.
There are just a few more procedural matters in the way, and some of those were handled Oct. 30.
Adam O’Brodovich, Murray’s fifth lawyer on the file, described the Section 11b application and decision to Sudbury.com, noting Justice Murphy found that Murray’s series of trials added a 21-day excess in the 18 months of allotted time for a provincial case to work its way through the courts.
“(The stay) 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.”
You can find a full retelling of the 2025 trial and the stay of proceedings here.
The Halloween day hearing was again held virtually, and allowed the attorneys to make further submissions to the judge on matters related to the case itself, which still hinges on accusations that Murray: started work and didn't finish or did not start working at all, applied for grants he knew his customers did not qualify for in order to upsell or sell his services more aggressively, put clients deposit money in operating accounts, and according to the Crown, knew his business was in trouble and still took on customers.
There were also procedural challenges, namely, a Browne and Dunn violation.
Extending from Browne v. Dunn (1893) 6 R. 67, H.L., which is British case law set in 1893, the precedent simply essentially means counsel can’t rely on evidence as part of their theory of the crime, or defence of their client, without first putting it to a witness on the stand. It’s an anti-ambush law of sorts, you can’t accuse a witness of an act without asking them to comment on it.
Flagg challenged the defence on Browne and Dunn, specifically as it relates Murray switching window suppliers mid-contract and back-dating contracts to qualify for already-cancellend grants.
He told the court in his submissions that the defence failed to question the witnesses with information Murray relied on in his testimony, a violation of Browne and Dunn.
O’Brodovich told the court there were “times that I intended to probe a little bit further, and there were objections, and it's fair,” he said, asserting that many witnesses would not be able to testify to certain aspects of the information.
“For example, he went into detail about how he was not passing this cost on to the consumers, that essentially, (changing suppliers) was a mitigation effort for timelines,” to make this switch in manufacturers,” he said. “There was not a suggestion, and it's not part of the defense theory contract that these complainants would have been aware of this switch.”
O’Brodovich also submitted there was no increased fee or cost passed on to the complainants, and explained it as a “mitigation effort to complete the contracts sooner.”
However, he does concede that the switch violates a term of the contract, as included on the back of some of the complainants paperwork.
“But these complainants not being aware of the transfer, I'm not sure much turns on it, other than Mr. Murray and his insistence that this was to receive the product sooner,” said O’Brodovich.
But Murphy felt it was an important fact to consider in establishing intent, and one that the Crown had asserted as part of their case: it prevents the complainants from giving informed consent to wait longer.
The Crown also submitted that Murray should have known his business was in trouble and changed his behaviors based on that knowledge.
As O’Brodovich put it in his reply, “it was essentially that it was on the rocks and that he was acting improperly with his management and leading him to take on more clients and so forth.”
But the defence posited that it was a change of banks as well as administrative issues (which Murray testified to) that cause “frustrations with the banking system and holds on checks,” and that there was no “pattern of financial instability up until, I think it's conceded that just prior to his license being revoked, he was having some issues, but that there's no evidence of sort of anything out of the norm in the banking records, beyond speculation,” he said. “He (Murray) believed that these applications were still being processed despite the announcement of cancellation in June and application deadlines.”
Under the law, an accused person in Murray’s position could be found guilty or not guilty on the basis of recklessness or willful blindness or awareness of the risk of “deprivation” of another person’s property.
As well, if the fraudulent act is deliberate or a “product of an operating mind with the relevant facts, the circumstances in which they were undertaken, and the consequences that might result - i.e. understanding what you were doing, how you were doing it and what might happen if it continued.
The personal feelings of the “morality or honesty” of the criminal act is not relevant.
These elements of the crime are what Justice Murphy will make her decision based on; however, that won’t be right away.
She said with the evidence and submissions she must consider, “if I stacked it up on the floor, it amounts to more than three feet of materials,” and that there are 28 transcripts that must be analyzed.
As such, the parties will all come together again briefly on Nov. 28 at 9 a.m., ruled the judge, to hear an oral decision on the matter, with written decision to follow.
But again, that is a decision on submissions on charges that have been stayed.
Jenny Lamothe covers vulnerable and marginalized populations, as well as housing issues and the justice system for Sudbury.com.