Judge Kathryn Denhoff’s Psychotic Reasons for Judgment

Mr. Fox did not dispute that on August 12, 13, 14, 15 and 16, 2021, the website www.desicapuano.com was operational and could be viewed by anyone capable of accessing the internet.

RFJ ¶3

But during Johnson's cross-examintion of me, the judge asked about this and I actually said "I have no first-hand knowledge of it…I didn't continuously check that the website was still up and running. I mean, more appropriately, I would say I don't dispute that the the website was online for most of that time." TR 2022-02-25 p119l22-27.

The crown called a civilian analyst with the Vancouver Police Department who testified that she checked the website www.desicapuano.com on August 12, 13, 14 and 15, 2021 and it was accessible and active on each of those days.

RFJ ¶4

But that same analyst, Catherine Meiklejohn, also testified on cross, that she only checked the website once on each of those days, and that she has no knowledge of whether the website actually remained online, continuously, between each of those times she checked it, or if it had actually been taken down at any point other than when she checked it TR 2022-02-23 p5l19–p6l10. The judge made no mention of this critical fact and admission in her RFJ.

On August 15, 2021, the analyst accessed the website at 6:10pm and it was still active and accessible, which was more than 48 hours after Mr. Fox's release from custody.

RFJ ¶4

Again, the judge ignored the fact that Miklejohn admitted she had no knowledge of whether the website had been taken down at any point following my release from custody. She only knew it was accessible at that one moment each day when she checked it.

This is significant because she, and the judge, cannot claim it was "still" active – "still" means it was active continuously; that it had not been taken offline at any point following my release from custody. And that is significant because the probation condition only required me to take steps to cause the website to be 'no longer available' – the condition did not require me to do anything on a perpetual or ongoing basis once the website was rendered no longer available. So, as long as I took steps which caused the website to be no longer available within 48 hours of my release, then I complied with the condition – regardless of how long the website remained no longer available. The condition did not state for how long the website was required to remain no longer available. Therefore, if the website was made no longer available for even five minutes then I had complied with the condition.

Mr. Fox further stated that he transferred ownership and control of the website so he would not be obligated to take it down in accordance with the probation order. (emphasis added)

RFJ ¶6

That is incorrect. I said "…so I couldn't be compelled to take it down". There is a significant difference between "would not be obligated" and "could not be compelled".

What's the difference? You ask. The end result of the two is the same. Either way, I deliberately created a situation whereby the Canadian justice system would not be able to legally make me do what they ordered me to do. The difference is the way Denhoff phrased it sounds nefarious; the way I phrased it sounds like I was just exercising my rights within the bounds imposed by the Canadian Criminal Code.

But more significantly, the problem is that Denhoff claimed I said "...would not be obligated...". She misrepresented my statement and, presumably, that's how she wrote it in her notes.

The even bigger issue is that the only part of the trial which gets officially published is the judge's Reasons for Judgment, not the transcripts, so as far as the whole world, and every other prosecutor and judge, is concerned what Denhoff said I said is what I said. Once again, we see that in the Canadian justice system, reality is not what actually happened, it's whatever the judge said happened.

When Mr. Fox was asked if he had access to the website, he stated that he would not answer the question.

RFJ ¶7

That is completely false! I unequivocally and directly stated I do not have access to the website TR 2022-02-23 p20l1-9.

Although Mr. Fox said he would provide a copy of that email at a later date, he did not ever do so, even though his laptop was made available in the courtroom during the trial and he could have accessed the email.

RFJ ¶7

But actually, I had told Tanino I would provide her a copy of the email once I'm released from custody, because I don't have access to email at NFPC TR 2022-02-23 p28l46–p29l4). That is why I still had not sent her a copy of the email – I was still in custody.

And, I was very clear in court about why I chose not to access the laptop in the trial – that would open the laptop and possibly my entire email account, to inspection by the prosecution and/or the police. It may also have resulted in the judge ordering me to provide the encryption passwords to the police TR 2022-02-25 p128l43–p129l8. This was said while I was still testifying, so it's evidence, not just arguments. Moreover, accessing the email would have nothing to do with that specific laptop because, as Johnson even admitted, gmail emails are stored on the server, not on the laptop TR 2022-02-23 p77l20-26. Any computer with internet access could have been used. The laptop seized by the police was completely irrelevant regarding that email.

And finally, it was the prosecution's and the judge's position that I am the one that had control of the website so even if I provided them access to that email, they would have said it's meaningless because I was just sending an email to myself.

Mr. Fox claims that he did not access the email in the courtroom because he did not want the police to have access to all of his computer content in the courtroom.

RFJ ¶7

That is false! I did not say I didn't want to access the email for that reason. I said I didn't want to pull the laptop into the trial for that reason TR 2022-02-25 p128l43–p129l8. The email could have been accessed from any computer which could connect to the internet because gmail stores the messages on the server, as was discussed in the trial and admitted to by Johnson TR 2022-02-23 p77l20-26.

However, by that time, the police had already searched the computer.

RFJ ¶7

Denhoff's implication is that since the police already searched the laptop, I had nothing to hide from them and no reason to not use it as evidence in the trial, to provide the email.

However, once again, either Denhoff wasn't listening to anything that was going on during the trial, or she was making a concerted effort to ignore critical evidence.

The police only searched the small, unused Windows partition. They didn't even know I used Linux on the laptop and that there was another, encrypted Linux partition TR 2022-02-23 p74l47–p76l10; p92l23-32.

Mr. Fox could have asked for the court's permission to access the email on his laptop himself in order to show it to the court without the police seeing the other content.

RFJ ¶7

But this still would have resulted in the laptop being brought into the trial as evidence, which means the Crown would have the right to challenge it, and that would mean the court could order me to provide the encryption passwords, so the Crown/police could investigate it for the purpose of "determining the legitimacy of the email". Also, since the message is stored on gmail's server, not on the laptop, then there is no reason I would have to use the laptop to access it. I believe this was just a ploy to trick me into bringing the laptop into the trial so I would have to disclose the passwords.

Moreover, since it was the Crown's and the judge's belief that I owned and/or controlled the website, the email wouldn't have mattered because Johnson would have claimed it was, essentially, an email from me to myself, that I was editor@desicapuano.com.

During his testimony, Mr. Fox contradicted his earlier statements about transferring ownership and control of the website www.desicapuano.com.

RFJ ¶11

But as I stated in my testimony, regardless of any admissions I may have made, the indisputable fact that I was in custody at FRCC when the website went online irrefutably proves that I could not, possibly, have had any involvement in putting it online – I had no access to the internet or to the content TR 2022-02-25 p115l27-37. And, when Johnson asked me if it is now my "evidence" that I did not create the website, I stated "right now, under oath, subject to being charged with perjury and having sworn that…everything that I say is true…I say I had no direct involvement in putting that website online…", and I point out that that's proven by the fact that I was in custody at FRCC at the time TR 2022-02-25 p119l30–p120l1.

Since the actual, physical evidence and reality is consistent with my testimony and contrary to my statements to the police, then that obviously means I was telling the truth on the stand and lying to the police.

Also, Johnson asked me if I'm suggesting I admitted to things I didn't do. I replied that I had said things to the police that I and the they knew were not true because I was deliberately trying to get them to start a prosecution for criminal harassment. I further stated I don't see how that is much different from the police making false statements to me, in order to build a false rapport, so I would say things they can use against me. I said "If it's okay for them to lie and manipulate me then it should be okay for me to do it back to them" TR 2022-02-25 p113l40–p114l8.

The fact that the police, the prosecutors, and the judges all accepted my admissions without any investigation into them, even though it would have been impossible for the admissions to be true, proves that the police don't care about the truth – their investigations are strictly to find evidence to support a conviction and to ignore and suppress everything exculpatory; the prosecutors don't care about innocence or guilt – their interest is only in getting a conviction at any cost; and the judges are only interested in maintaining the APPEARANCE of fairness and justice. This has all been done deliberately, on my part, over the past few years, to prove these points.

…Mr. Fox apparently instructed Ms. Munoz not to tell him anything about the website until his probation period was complete, so that he would not have to take it down.

RFJ ¶13

The judge is ignoring that I also told Munoz not to tell me anything about WHO put the website online (and by implication, who actually has admin access/control over it).

And, the judge's statement "…so he would not have to take it down" is false. I never said that. I said so "I can't be compelled (i.e. forced) to say who it is that's running it." There is a huge difference between saying "would not have to" and "could not be forced to". Also, my statement was pertaining to who's running the site, NOT to taking it down.

He was also able to say that there had been updates to the website in the last year and a half, which means that he must have been accessing it during that time.

RFJ ¶14

However, I was able to see that there had been updates because those updates were publicly accessible. Everyone in the world had such access. It did not mean I had administrative access.

The judge misconstrued the significance of my statement about there being updates over the past year and a half. My point was that the updates were made while I was in custody and didn't have access to the internet, so I could not have been involved with those updates. In other words, that proves that someone else is making the updates TR 2022-02-25 p102l46–p103l3. I even clearly stated "…while I've been in custody so, clearly, somebody is doing something with the site."

Mr. Fox claimed he told Cst. Dent in 2020 and Cst. Tanino in 2021 that he transferred ownership and control of the website because it was 'simpler' than telling them that Ms. Munoz launched the new website of her own volition. That explanation is not compelling.

[16] It is in no way simpler to say that he transferred ownership and control. It is, however, more incriminating, which Mr. Fox obviously realized before testifying in court.

RFJ ¶15-16

The judge is ignoring the much more significant reasons I gave for why I provided that explanation to the police, namely "…I was very actively seeking to convince the BCPS to prosecute me for criminal harassment based on the new website. And in fact, even to this day, I would still do everything that I can to try to convince the BCPS to prosecute me for criminal harassment based on this new website" TR 2022-02-25 p111l9-15. And, "…that if I had said in the letter [to Fontana] that my friend had arranged for the website to be put back online with no involvement or … not in response to a request from me, that would mean I would have nothing to do with the website and, therefore, cannot be prosecuted for criminal harassment based on it" TR 2022-02-25 p113l8-15.

If the police already have a belief about something then making a statement or "admission" which is consistent with that belief will, generally, be accepted by them without further inquiry or investigation. Whereas, if I had made a statement contrary to their belief they would have continued to interrogate me on it until I said something to discredit the statement, or they would simply not believe it and refuse to pursue or accept any evidence which would support the statement – which is exactly what happened in this case, with the email I sent to editor@desicapuano.com (the police didn't believe I sent the email, and if I did it would have been exculpatory, so the police made no real attempt to verify it). So, in that respect, it IS easier to say what the police, prosecutors, and judges already believe than to say the truth when the truth is contrary to what they believe. Consider these Reasons for Judgment – how frequently the judge completely ignored or claimed to not believe any of my statements which were not consistent with the guilty verdict she wanted to impose – yet she accepts and completely believes, without a second thought, any of my statements which ARE consistent with a guilty verdict, even though those statements could not, possibly, be true.

It is no more or less incriminating to say I put the website online then transferred control to a another party; or to say I never had control in the first place; because the events in question occurred before any of the probation orders came into effect. Whether one thing occurred or the other, I wasn't on probation at the time and so whether I put the website up then transferred it, or whether someone else put it up and I never actually had control of it, either way I couldn't have possibly breached probation because I wasn't on probation.

The main reason for the differences in my statements to the police and my statements on the witness stand is that my statements to the police were not under oath, I was under no obligation to tell them the truth, to be precise, or to be completely forthright; whereas, on the witness stand I was being very careful to be as precise, accurate, thorough, and complete as possible. This is evidenced from a number of my responses, for example, about me and Capuano never having been legally married because we had an annulment not a divorce.

It is simply absurd to suggest that Ms. Munoz, who is not in regular contact with Mr. Fox, would pay for a website that is entirely related to Mr. Fox's harassment of Ms. Capuano and Mr. Fox's criticisms of his legal processes.

RFJ ¶18

This is a patently incorrect inference on the part of the judge. There is nothing in the record to support it.

First: The cost of keeping the website online is about $17 per month. That is so negligible it barely warrants consideration. That's less than a cup of coffee every other day. This fact did not come up in the trial. Neither Denhoff nor Johnson inquired.

Second: Ms. Munoz filled the maternal role in Gabriel's life for much of his childhood. Ms. Munoz was devastated when Capuano showed up out of the blue, took Gabriel away to Arizona, took very deliberate steps to have me deported to Canada, then immediately and completely cut Ms. Munoz out of Gabriel's life. None of this was discussed at the trial either. If Denhoff had doubts about the plausibility of my testimony about Ms. Munoz's willingness to put any resources into keeping the website online she should have given me the opportunity to explain, rather than drawing false inferences.

Third: the time and effort required to maintain a website like desicapuano.com is, literally, almost completely nil. The website can go months without ANY intervention at all.

Fourth: it was never stated or implied at the trial, that Ms. Munoz had any ongoing involvement in the website beyond putting it back online in 2018. This is an inference that Denhoff is making but it's based on absolutely nothing at all.

Fifth: the website is not based on my harassment of Capuano. It's based on exposing all the bad conduct Capuano has engaged in over her life – such as abducting Gabriel and stealing him away from all the people he considered family, like Ms. Munoz. If the website constituted harassment then the BCPS, or police, or Capuano herself would be able to obtain a US injunction to compel the hosting provider to take it down. Not to mention, if it was harassment then the BCPS would prosecute me for that again.

Sixth: regarding Denhoff's reference to "Mr. Fox's criticisms of his legal processes", there is, in fact, copious physical evidence on this website which supports and even clearly proves all of my claims of corruption and misconduct that has been occurring in my cases. And not one person in the BCPS or the Ministry of Attorney General or the Ministry of Justice has denied any of my claims. This is relevant because it is due to that corruption and misconduct that I had been repeatedly prosecuted and imprisoned for the past seven years, and thereby cut off from my son and repeatedly and consistently defamed in the Canadian news media.

Seventh: this statement by Denhoff contradicts her later statement in paragraph 25, that I could have contacted Munoz and asked her to take down the site, or provided her information to the police. If Denhoff believes it is simply absurd to suggest Munoz was keeping the site online, then why does she later claim one of the things I could have done to cause the website to be no longer available is to contact Munoz? Either Denhoff is full of shit here or she's full of shit in paragraph 25.

His apparent purpose was to force Ms. Capuano to testify and for him to be able to cross-examine her on what he claimed were her lies in a previous trial before Justice Holmes.

RFJ ¶18

The judge is, again, cherry picking only the parts from my testimony and explanations which will appear to support the Crown's case while ignoring everything else. The Crown was trying to get me to admit that the purpose of my letter to Det. Fontana was to try to instigate another criminal harassment prosecution so I could cross-examine Capuano. However, I had stated "…the important point though is that if I were to be prosecuted for criminal harassment again, based on the current or new website, that would necessarily bring up or draw attention to all of the corruption and misconduct and the perjury that occurred at the first trial and that would be the objective of that" TR 2022-02-25 p112l19-25.

In Johnson's direct-examination of Det. Tanino, he asked her if I made any statements about my goal of bringing the justice system into disrepute. Tanino read from the transcript of the interview where I explained my plan and intention of bringing the justice system into disrepute and exposing the corruption in the justice system by either forcing a new criminal harassment prosecution or by the Crown's persistent refusal to pursue a new criminal harassment prosecution TR 2022-02-23 p16l35–p18l10.

Given the preceding two sections, it is unfathomable that the judge would think my goal of being prosecuted for criminal harassment would be, primarily, to cross-examine Capuano. That would only be a means to the end of exposing the corruption and bringing the system into disrepute.

In that letter, Mr. Fox was making a clear admission that he launched, owned and controlled the website www.desicapuano.com.

RFJ ¶20

However, it is indisputable that I was in custody at FRCC at the time, which means I did not have access to the internet or to the material for the website. It would, literally, have been impossible for me to launch or have any access to the website, and more importantly, to the hosting account. My admissions to the police were indisputably and irrefutable false.

During sentencing submissions, the judge revealed that she had believed I, and inmates in general, have access to the internet from within BC Corrections facilities TR 2022-02-25 p143l44–p46l43. This is a major, major issue because it means during my testimony and while preparing her Reasons for Judgment the judge believed I had access to the internet, including the ability to publish and maintain the website and to forward the editor@desicapuano.com email at any point. The moment the judge realized I, in fact, did not have access to the internet she should have either vacated the verdict and reconsidered it, or declared a mistrial.

I don't really believe the judge thought I had access to the internet, though, because that was referred to repeatedly throughout the trial, including during my cross-examination of Det. Tanino TR 2022-02-23 p28l47-p29l35. I believe the judge just used that as an excuse to justify her otherwise outrageous verdict. Either that, or she wasn't even paying attention during critical parts of the trial.

First he argued that there is no evidence that he owns or has control over the website. As noted Mr. Fox admitted to Cst. Fontana, in a letter dated June 6, 2019 that he published the new website and engaged in criminal harassment.

RFJ ¶21

As stated above, the fact that I was in custody at FRCC at the time the new website went online indisputably proves I could not have done it.

And, I most certainly DID NOT admit to engaging in criminal harassment. What I said was that if such conduct constituted criminal harassment at the time of the criminal harassment trial then it must constitute criminal harassment now. The implication being that the Crown's adamant refusal to prosecute me for criminal harassment based on the current website proves that it does NOT constitute criminal harassment.

…Mr. Fox told both Cst. Tanino and Cst. Dent that he would take the website back when his probation ended, indicating he has retained control over the website.

RFJ ¶21

It indicates nothing of the sort. Once I take it back, then I will have control over it, but until that time I do not. If you relinquish ownership and control of something to another party with the understanding that at some point in the future, when certain requirements are met, they may give it back to you, then until that time comes it is no longer yours. For example, if I give somebody my jacket with the understanding that if the day ever comes they no longer want it they'll offer it to me before they offer it to someone else, well then it's no longer my jacket. It now belongs to that other person. And he may, or may not give it back to me at some point in the future. But I can't, legally, take it back from him without his consent – it's no longer my property. Just because I may believe he will give it back to me at some future time does not make it mine, nor does it give me any control over the jacket. And, in the meantime, that third-party is entitled to do as he pleases with the jacket. Same fucking idea, jackasses!

Mr. Fox also argues that the Crown has not proven that the website was not taken down by him within 48 hours of his release and then reposted by someone else. That argument fails because, as already discussed, Mr. Fox retained control over the website and could have taken back the management of it at any time.

RFJ ¶22

The judge repeatedly claims I retained control of the website but she has not cited any evidence to support that. The letter to Fontana was written in 2019, even if my admission were true at that time it doesn't mean I still control the site two years later.

To begin with, I do not believe that Mr. Fox sent an email to the editor of the website. Mr. Fox refused to produce the email to the police when asked and also failed to offer to produce the email when his laptop was available in court during the trial.

RFJ ¶23

However, the police did not give me the option of providing them access to the email. They only gave me the option of providing them the passwords to my phone and laptop, which would have given them full access to all of my data.

My reasons for not relying on the laptop in the trial are stated above.

Even if I were to believe that Mr. Fox only told the police he launched the website so he would be charged with harassment, which I do not accept, Mr. Fox clearly maintained control over the website.

RFJ ¶25

Again, the judge is insisting I "clearly maintained control over the website" but again, there was absolutely no evidence to support that! Dent clearly testified he had no knowledge of whether I had any ownership, control over, or involvement in the website.

Therefore, he could have contacted Ms. Munoz to regain control of it upon his release from custody and ensured it was no longer available.

RFJ ¶25

What would Munoz have to do with anything? She just made the arrangements for it to be put back online three years ago. She had no further involvement beyond that. There was no indication provided in the trial that Munoz's involvement went beyond arranging to put the site online in 2018.

See also, the point starting "Seventh…", regarding the judge's claim in paragraph 18 the it is "simply absurd".

If he was not successful in persuading Ms. Munoz to take down the website, he could have provided her name and contact information to the police so the police could have made a request to Ms. Munoz. He did not do so, either because he actually owns the website, not Ms. Munoz, or because he did not want the website to be taken down.

RFJ ¶26

Again, the judge is misguided. I never said Munoz has anything at all to do with the website. There would be no reason for me to contact her about it. Likewise, there would be no reason for me to give her information to the police. Moreover, she's a US citizen who is not in Canada and has no connection to Canada – the Canadian police and courts mean absolutely nothing to her and they have no authority or jurisdiction over her.

As for me not wanting the website to be taken down, that is absolutely correct, but that doesn't mean I failed to comply with the condition.

…Mr. Fox argues that he was not obligated to do anything with the website after 48 hours after his release from custody…

RFJ ¶27

That is absolutely false! I said nothing if the sort. Is Judge Denhoff a compulsive liar or simply delusional?

The term 'no longer available' has the ordinary meaning of being available in the past but not continuing to be available.

RFJ ¶28

But the judge is mistaken, "no longer available" DOES mean that the thing was previously available then transitioned to cease to be available – but it DOES NOT require that the thing REMAIN unavailable for ANY duration of time. The probation condition explicitly DOES NOT state that once the website was made no longer available it must remain as such for the duration of the order. It only stated that I must cause it to change from being available to being no longer available. The probation order do not state for how long, or how often, I must engage in the act of "taking all necessary steps…". Therefore, executing it one time would fulfill the requirement.

Mr. Fox had control of the website www.desicapuano.com within 48 hours of his release and continuing past that time, as he repeatedly boasted to the police.

RFJ ¶29

That is patently false! I never boasted or even stated I had ANY involvement with the website subsequent to my probation orders coming into effect on 2018-12-30.