Convicted of Violating Probation When I Wasn’t Even On Probation

I was accused of violating a condition of my probation order, by putting the Desiree Capuano website back online. However, the act of putting the website online, the act I was prohibited from engaging in, actually occurred more than a month before the probation order came into effect. That is, at the time I engaged in the conduct, I wasn't on probation and, therefore, I wasn't prohibited from engaging in that conduct.

At the trial, the police testified, and the prosecutor admitted, they had no idea or knowledge of when the website was put online or whether it occurred while I was on probation.

The judge found me guilty nevertheless. In her Reasons for Judgment, the judge made no mention of the critical fact that, even though I admitted I had engaged in the prohibited conduct, I had done so before the conduct was prohibited.

I was sentenced to six months in prison, and another six month probation order.

Now, in case you missed the critical point here: I wasn't on probation at the time I engaged in the conduct which only later became prohibited, when the probation order came into effect.

Chris Johnson, Prosecutor

In 2017, I was convicted of criminal harassment based primarily on email communication between my ex-wife, Desiree Capuano, and myself. The website had very little to do with it, but the website was the main concern for the prosecutors because there was content on it which tended to make them look like idiots. Incompetent, useless, idiots. I was sentenced to 3 years and 10 months in prison, followed by a 3 year probation order. The sentencing occurred, and the probation order was issued, on 2017-11-10.

That probation order contained 17 conditions. One of which, Condition 12, prohibited me from publishing any information about Capuano.

While I was in custody, serving that sentence, the hosting plan for the website expired and it went offline briefly. Shortly thereafter, while I was still in custody on that sentence, the website was put back online, with a different hosting provider.

On 2018-12-30, my prison sentence ended; I was released from custody; and the probation order came into effect. The website was online prior to, at the time of, and following my release.

A probation condition can do one of only two things:

1. It can prohibit the accused from engaging in particular, articulated conduct; or
2. It can require the accused to engage in particular, articulated conduct.

An accused is only subject to the conditions of a probation order from the day the order comes into effect, until the day the order expires.

If the accused is sentenced to a period of imprisonment, in addition to the probation order, then the order does not come into effect until the accused's release from custody following the completion of his prison sentence CCC s. 732.2(1)(b).

So, even though a probation order is issued at the time of sentencing, the accused is not bound by it, is not subject to it, until he finishes his prison sentence. For the period of time between the sentencing and his release from custody, he is not on probation and is not required to comply with the conditions stated in the probation order.

At the trial, Fontana testified and the prosecutor, Chris Johson admitted they had no knowledge or evidence of when the website was actually put online TR 2020-08-19 p29l38-39; p30l3-22; p30l29-p31l29; p38l30-36; p46l31-33; p47l5-7; p50l33-40.

In his closing arguments, Johnson again acknowledged he had failed to prove when the website was put online. But he argued that he was not required to prove that, he was only required to prove I had any involvement with the website during the time I was on probation.

I argued that the condition I was accused of violating only prohibited me from engaging in particular conduct, namely the act of putting the website online, and that I was only prohibited from doing that while the probation order was in effect.

In response to that, Johnson protested that there was also a condition (Condition 13) which required me to take down the website within 24 hours of my release TR p35l17-23; p40l19-21. But as I pointed out to Johnson and Phillips, I was not charged with violating that condition so it's simply not relevant to the current trial TR p40l45-47; p50l20-27. The judge, Nancy Phillips agreed with me on that point RFJ ¶34.

Obviously, I appealed Phillips' ridiculous verdict.

On appeal, I argued that the conviction was not supported by the evidence because there was no evidence I engaged in the conduct while I was on probation.

The prosecutor, David Layton, argued that even though the act occurred before the probation order came into effect, it constituted an "ongoing offense" because the result of the act (i.e. the website being online) continued until after the probation order came into effect. To support his position, Layton relied on case law (R. v. Arnold (1990), 74 C.R. (3d) 394) where the Supreme Court of Canada ruled that the act of cultivating marijuana constituted an ongoing offense from the time the seeds were planted until the time the plants were harvested, even though the offender may have had no involvement with the plants in the interim. This was a completely idiotic argument and the case law was in no way analgous.

In response to Layton's stupid argument about the website being an ongoing offense, I argued that Arnold doesn't apply in this case because in Arnold the act of cultivating marijuana was illegal at the time he engaged in the act of planting the seeds and until he harvested the plants. The particular conduct was, itself, a crime. In my case, the act of publishing the website was not illegal, nor was I prohibited from doing it at the time I did it. It only became illegal after the probation order came into effect. It could not be considered an "ongoing offense" if it wasn't even an offense.

In their ruling, the BCCA completely ignored my arguments. They made no mention of them at all. Probably because my arguments were so obvious and so irrefutable. They also ignored Layton's arguments about the ongoing offense - probably because they realized how painfully moronic his arguments were.

Ultimately, the BCCA upheld the conviction, completely agreeing with Phillips and Layton.

Some of you may be thinking: "But just because Johnson was unable to prove when you engaged in the conduct, that doesn't prove it was before the probation order began." You'd be right. However, in criminal law the burden is on the government to prove the critical facts, not on the defendant. It was Johnson's burden to prove I engaged in the prohibited conduct while I was on probation, and his failure to do so - hell, his open admission that he failed to do so - means he failed to prove a critical point which he was required to prove.

And some of you might be thinking: "Regardless of when you put the website online, it remained online after the probation order came into effect so you are guilty of violating Condition 13." And if you're thinking that then you're clearly an idiot because, as explained above, I wasn't charged with violating that condition. A person can only be convicted of the offense they are charged with. If you commit theft but the prosecutor charges and prosecutes you with assault, then the judge cannot find you guilty of assault because she believes you're guilty of theft. That's not the way the law works.

So there you have it: In Canada, it is possible for a person to be convicted and sent to prison for violating a probation order even if you're not on probation. Yay, fair justice!