Transcript of Court Proceedings (2017-06-07)
PDF27178
Vancouver Registry
In the Supreme Court of British Columbia
(BEFORE THE HONOURABLE MADAM JUSTICE HOLMES AND JURY)
Vancouver, B.C.
June 7, 2017
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS IN CHAMBERS
(Pretrial Conference)
(Pretrial Conference)
BAN ON PUBLICATION - INHERENT JURISDICTION
27178
Vancouver Registry
In the Supreme Court of British Columbia
(BEFORE THE HONOURABLE MADAM JUSTICE HOLMES)
Vancouver, B.C.
June 7, 2017
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS IN CHAMBERS
(Pretrial Conference)
(Pretrial Conference)
BAN ON PUBLICATION - INHERENT JURISDICTION
Crown Counsel: Mark Myhre
Appearing on his own behalf: Patrick Fox
Vancouver, B.C.
June 7, 2017
(TELECONFERENCE COMMENCES)
(THE HONOURABLE MADAM JUSTICE HOLMES AT REMOTE LOCATION)
Clerk:
[Recording begins]... British Columbia, at Vancouver, this 7th day of June, 2017, calling the matter of Her Majesty the Queen and Patrick Fox, My Lady.
Judge:
Thank you. Appearances?
Myhre:
Yes, My Lady, Mark Myhre here for the Crown.
Judge:
Thank you.
Myhre:
And Mr. Fox is here beside me, as well.
Fox:
Yes, I'm sorry, Patrick Fox, self-represented.
Judge:
Thank you. I'm having a little bit of trouble hearing the two of you. I don't know if there's a microphone --
Fox:
Mike? Is it just that one?
Judge:
-- that could be moved a bit closer.
Clerk:
I'll do my best.
Myhre:
How's that, My Lady?
Judge:
That's much better. Thank you.
I apologize that I'm not able to be there in person. I have just finished charging the jury in another matter in another place. So I remain in that other place until the jury returns.
Myhre:
Okay. My Lady, should I just run through the list of issues?
Judge:
Yes, please.
Myhre:
And just so -- with Your Ladyship's permission, Mr. Fox and I are both seated here. Just -- that lets us both be close to the microphone.
Judge:
All right. Thank you.
Myhre:
So as far as to-do list from the last pretrial conference, did Your Ladyship receive the case law book on psychological harm and indirect communication?
Judge:
Yes, thank you. And also a book on excerpts from the website.
Myhre:
Yes. And, Mr. Fox, did you receive both those things?
Fox:
Yes, I did.
Myhre:
Okay. So we should perhaps discuss the book of excerpts. It was -- I think the intention in handing it to Your Ladyship was so that you could scan the material and let the Crown know if you had any concerns about it, and give Mr. Fox an opportunity to raise any concerns as well.
Fox:
Before -- before we proceed with that, though, in the letter I sent you I didn't mention that I was withdrawing the opposition I had to the Crown admitting any of the content from the website. So if this pertains -- if what we're discussing right now pertains to that -- that opposition that I had, then I think it's moot at this point.
Myhre:
So I take it from that Mr. Fox has no concerns about that book?
Fox:
I do not. No.
Judge:
All right. Is there anything in the book that nonetheless I should take a look at?
Myhre:
Well, there is a general issue, My Lady, that I've been thinking about in the last couple days, which is the extent to which the history of the relationship between Mr. Fox and Ms. Capuano is going to go before the court, and that would touch a little bit on what is in that book. But I would like to get some other issues out of the way first, because that is not a simple one.
Judge:
All right.
Myhre:
Mr. Fox has now received the printouts he requested of his -- of the emails between himself and Ms. Capuano. We had the RCMP download those. I had an assistant spend several days printing out books. And -- and I believe he and counsel now both have copies.
Fox:
That's correct, yes.
Judge:
All right.
Myhre:
I do --
Judge:
Thank you.
Myhre:
My Lady, I have -- I also have some concerns around the length of and the -- the time periods of the emails selected by Mr. Fox. But that's also an issue that's encompassed in talking generally about how much history is going to go before the jury in this matter.
There -- my understanding is that everything is on the rails with -- with appointed counsel. I think he did have some concerns about the scope of his retainer, because it seems like LSS vastly underestimated the time that he would need. But I spoke with him this morning and I understand that's not an issue. And that -- I don't know if Mr. Fox has any concerns of appointing counsel.
Fox:
I don't have any concerns.
Myhre:
Okay. So I think that's all good.
Next issue, I think we are all on the same page of this, but, My Lady, you weren't the one who made the order, so I just wanted to remind everyone that Ms. Capuano will be testifying with a support person, in behind a screen in the court.
I wanted to discuss my general witness schedule.
Judge:
Now, just before you go on -- Mr. Fox.
Fox:
Yes.
Judge:
You -- you were aware of that, were you?
Fox:
Yes, I was.
Judge:
And, Mr. Myhre, have you made the necessary arrangements for the screen?
Myhre:
I know the order was made, My Lady, at pretrial conference back in the winter, but to be honest -- Madam --
Clerk:
It's just a screen you need?
Myhre:
Madam Clerk is making a note right now. Yes.
Judge:
There are -- if something does need to be addressed, and because there's only a limited number of screens I'm sure there'll be no trouble getting one, but you need to make sure it's in the right place at the right time and not in Prince George or so forth.
What days are -- is it going to be needed?
Myhre:
I would want it for the first week of this trial, when we have Ms. Capuano slated to testify.
Judge:
All right.
Myhre:
Madam Clerk, is there any -- any other paperwork that the Registry needs from me, or do you know?
Clerk:
I'll email it to Trial Division --
Myhre:
Thank you very much.
Clerk:
-- for next week [indiscernible/not near microphone], My Lady.
Myhre:
As far as the Crown's witness schedule, I just want to alert Your Ladyship and Mr. Fox to the way I foresee things unfolding. So as I said, we have Ms. Capuano here the first week of June -- sorry, the first week of trial, June the 12th. It's quite conceivable that she will take the entire week, or that she can take as little as -- I can't conceive of her taking less than two days to complete her testimony. But it could be anywhere in between there.
Now, the remaining Crown witnesses: We have the ATF agent, and he's flying in here on June the 19th. And we have Constable Dupont, who can only testify on the 19th.
So the other witnesses we have that the Crown can put on, if Ms. Capuano finishes early, are Constable Potts, with Mr. Fox's statement; Mr. Mangat, the person at the Packaging Depot, who shipped some packages for Mr. Fox.
And so I just want to alert the court to that, because it is possible that if Ms. Capuano finishes very quickly, then we spend one day on Mr. Fox's statement, half an hour with Mr. Mangat, and then we could conceivably have a day where Crown doesn't have a witness to call. But then we would anticipate finishing the Crown case on Monday morning.
Judge:
All right. Thank you.
Myhre:
Okay. The next thing I want to just alert the court and Mr. Fox -- I think Mr. Fox is aware of this, but there are two recordings of Mr. Fox's statement with Constable Potts; one's audio and one's video. On the video statement the audio is terrible and so the Crown's intention is just to play the audio. There are a couple things that are shown to Mr. Fox and referred to in that interview, and Constable Potts will just have those with him and we'll mark those as exhibits.
Judge:
I'm sorry, you were a little bit ahead of me there, Mr. Myhre. There are two statements, you said?
Myhre:
Two recordings of the same statement; one audio, one video.
Judge:
All right. And which is the bad one?
Myhre:
The video.
Judge:
And so you're proposing to play the audio only?
Myhre:
Yes.
Judge:
That give rise to any concern, Mr. Fox?
Fox:
No, it doesn't.
Judge:
All right.
Myhre:
I need to confirm, I guess with the Registry, that they have the exhibits from the preliminary inquiry, because the Crown will be filing the firearms affidavits that were filed at the preliminary inquiry. I think that's something I need to do just by going downstairs to check with the -- the criminal counter. But I wanted everyone to know that's what's happening with those exhibits.
As far as -- I want to bring up an issue around the s. 93 offence. So the Crown theory is that Mr. Fox had it in a place other than a place, and this is the wording of the section: other than a place indicated on the licence as being a place where he may possess it. And so the evidence the Crown relies on there is in the firearms affidavit, which sets out the terms of his licence.
If there is other authorization, by virtue of s. 117.11, the onus is on Mr. Fox to provide that authorization. And I expect there would be a jury instruction consistent with that. And so that's -- I just wanted to flag that, so it's clear what the Crown says about s. 93.
Judge:
And are you raising that, Mr. Myhre, because you want Mr. Fox to be aware that it's one area where the burden is not entirely on the Crown? Is that why you're raising it?
Myhre:
Yes, exactly. And it's a somewhat unusual --
Judge:
Then thank you --
Myhre:
-- issue.
Judge:
-- for raising it. It's a good point.
Mr. Fox, as I'm sure you're aware, the burden of proof is on the Crown in all criminal trials, and it's a burden of proof beyond a reasonable doubt. And that applies throughout trial on every issue, with a very few exceptions. And when there -- this is one of those exceptions. When there's -- when there may be some specific form of authorization that allows someone to do something that they wouldn't normally be allowed to do, there's an evidentiary burden on the defence to establish or at least lead some evidence about the other form, the authorization.
So the Crown will be relying on the terms of your firearms licence to say firearms are allowed to be here, and the Crown will say they weren't here, they were there, and therefore there was no authorization to have them where they were.
If you're relying on some other form of authorization that come -- you know, a new licence, or something -- some specific reason that you were allowed to keep them somewhere else, you have an evidentiary burden to provide some evidence about that.
Do you understand what I'm staying?
Fox:
I do. Thank you.
Judge:
All right. Thank you.
Myhre:
Okay. The last issue I wanted to bring up before talking about how much of the history goes before the jury, some time ago, maybe a couple of months ago, Mr. Fox asked me to print out a number of blogs for him. And my recollection is that I agreed that I would do that. As I reflected on that this week I formed the opinion that those blogs would not be admissible evidence. And so I let Mr. Fox know via letter on June 4th that that was my position and that, subject to any direction from Your Honour, I wouldn't be providing him with printouts of those blogs.
Now, what I'm talking about are blogs on the website desireecapuano.com. And the reason the Crown says they're not admissible is that these are essentially statements that Mr. Fox has made, and as such they're not admissible through Mr. Fox. The Crown could tender them if the Crown chose. And the Crown has selected a number of them to put before the jury. But Mr. Fox is not entitled to put them in in the defence case. And neither would there be any relevance to putting them to Desiree Capuano, because she didn't author them.
Now, what I said to Mr. Fox in my letter was I think some of those blogs probably contain allegations of bad behaviour or things that Mr. -- Mr. Fox says go to her credibility. And so it may be that some of the substance of what he has written there could be put to Ms. Capuano by appointed counsel in the form of various questions. But it doesn't seem to me that they are admissible. And so I let Mr. Fox know that in a -- in a letter on June 4th so that he would have a chance to respond today.
I'm certainly willing, if there is a direction from the court, to have these things ready for Mr. Fox. I can get that -- I can get that assistance at work to have things printed for him. But subject to any direction, I just don't see how they're admissible.
Judge:
All right. Mr. Fox, have you had a chance to think about this, and if you have, what's your reaction?
Fox:
I have had a chance to think about it, and I think the question of admissibility is irrelevant to the reason that I was requesting them from Mr. Myhre, which was so I can annotate and highlight them to provide them to Mr. Lagemaat to assist him in preparing for the cross-examination of Ms. Capuano. I was very clear in the letter that I had provided to Mr. Myhre that that was the reason that I was requesting that a single copy be printed. However, all of this is irrelevant I think at this point, because I've made other arrangements to obtain copies of those.
Judge:
I see. Well, that answers the immediate question of should the Crown produce them to you. As you say, you don't need them anymore. And can I take it from what you've just said that you're not proposing that these logs would go into evidence in the trial?
Fox:
I'm not prepared to comment on that at this point. I can envision that there are some circumstances under which they would be admissible.
Judge:
All right. Shall we then just wait and see and deal with it as they may come up?
Fox:
That's what I would like, yes.
Judge:
You agree to that, Mr. Myhre?
Myhre:
Yes.
Judge:
Right.
Myhre:
Okay. So that brings us to the issue of the history of their relationship. Did -- I see Mr. Fox raising his hand.
Do you want to say something first?
Fox:
I was just going to suggest that sounds like it might take a few moments. Before we go into that can we just bring up one point? At the jury selection all of the witnesses related to the s. 93 charge were not mentioned. And I don't want this to create some issue down the road, because I was under the impression that they weren't going to be called, but Mr. Myhre is now saying that they are in fact still on the witness list. But there is -- although it's a slim possibility, there is some possibility that one of the jurors might potentially know them.
Myhre:
Yes, thanks for raising that. Ms. Darby -- my colleague, Damienne Darby, did the jury selection because I was in trial last week. And I guess didn't have the full witness list, and that can only be my fault. So I guess the -- maybe the right thing to do would be to alert the jury to all of the witnesses at the start of this trial, just to canvass that issue again.
Judge:
And as I understand, there are two alternates selected. Is --
Fox:
That's --
Judge:
-- that right?
Fox:
That's correct.
Judge:
So, thanks for raising that, Mr. Fox. I think that is something we should deal with. And so at the beginning of the trial, certainly before the alternates are released, the Crown will be asked to read out its full witness list, and we'll make sure there's an opportunity for anyone who has some sort of conflict, to identify it.
Myhre:
Okay. Then dealing with the history. Did Your Ladyship have a chance to look at that portion of the website excerpt that's titled "background"?
Judge:
Probably not. I've looked only quickly at the materials.
Myhre:
So in that excerpt --
Judge:
So where do I find that? At six one, I think. Is that the one you're --
Myhre:
Yes, that's --
Judge:
-- at?
Myhre:
-- the one. Okay. So as Your Ladyship can see, there are quite a number of pages. But anyhow it starts "Desiree's early years, 1980 to 1999" and then goes on to detail some of their early history around the birth of Gabriel. And I think, if I can summarize, and Mr. Fox can correct me if -- if he sees it differently, essentially the two of them have Gabriel together in 2000 and they split up in 2001.
And then from Ms. Capuano's perspective, what happens next is essentially Mr. Fox withholding Gabriel from her and then hiding so that she couldn't find him. And from Mr. Fox's perspective it's Ms. Capuano essentially abandoning Gabriel.
And then -- and then fast forward to 2011, Mr. Fox got in contact with Ms. Capuano, invited some contact between her and Gabriel. And then it turns out at the time he was in custody. Once Ms. Capuano learned that, she eventually went and took custody of Gabriel from a friend of Mr. Fox's, who had been caring for him while he was in jail. And then ensued a custody battle that lasted from -- in -- well, it happened -- took place in the courts in California and Arizona between 2011 and it continued, may even still be continuing.
In 2013 Mr. Fox was deported while this custody battle was going on. And that was likely due to Ms. Capuano having called the FBI in the fall of 2012 and said Mr. Fox is in the country illegally.
And so there is all of this back story and then -- I don't think Mr. Fox would disagree with this -- that some of the -- well, essentially the website and the things that the Crown say amount to harassment really started in earnest after he had been deported.
And so, now that -- if the jury gets this book that the Crown has set out so far, they have Mr. Fox's side of the story of some of that early history, a lot of that early history; it's there in the background. And so what I'm intending to do with Ms. Capuano is spend approximately 20 minutes with her, mostly leading her on her version of events.
And so I'm doing that because -- I'm intending to do that, that is lead that evidence, so that it doesn't digress into -- there are so many details, so many little things about what happened back then. And really the details are irrelevant, in my submission, to the jury's final determination of whether Mr. Fox's actions between January 2015 and May 2016 amounted to criminal harassment. But the jury does need to have an overview and an idea that Ms. Capuano doesn't have the same version of events as Mr. Fox does.
So that's why I'm proposing that I will spend about 20 minutes with her just highlighting what she says happened leading up to essentially her calling the FBI to have to Mr. Fox deported. And then really getting into what the Crown says are the harassing actions in this case, as set out in the rest of that book that I have given to Your Ladyship with -- I think that book includes about 60 emails and about 10 blogs from this website that the Crown says amount to harassment. And so that's the Crown's compromise to try to not leave the jury with a complete void as to well, you know, why -- why did this custody battle turn so bitter?
And I think at the end of the day the Crown's submission to the jury is going to be there's a dispute about what's happened in this relationship. What you can take from that is that obviously there was an acrimonious custody battle. But the decision the jury has to make is did Mr. Fox's actions from January 2015 to May 2016 constitute criminal harassment?
Now, I am concerned about the possibility for this trial to meander off into the many, many, many small disputes that I see in the email communications. And -- and I know that what took place between the two of them between 2001 and 2011 is not agreed upon. Again, one of the -- Ms. Capuano sees it as Mr. Fox keeping Gabriel from her, and I think Mr. Fox sees it as her abandoning Gabriel.
But I am concerned with the -- sorry, I'm not sure what the import of that note is. Mr. Fox just showed me a little note.
I know -- Mr. Fox, I know you have some comments, and obviously you'll get a chance to tell Her Ladyship what you think.
Now, I do have -- I have books of all the emails Mr. Fox requested, printed out. There are 24 emails from 2011, 191 emails from 2012, 83 emails from 2013, 77 emails from 2014, and 64 emails from 2015. And as Your Ladyship will see in the index to the Crown's book, the Crown also includes emails dating back to 2013. We've got three from 2013, roughly 20 from 2014, and then that must mean 35 to 40 from 2015.
So my concern is relevance and not having this trial be completely sidetracked by these -- by the minutiae of the events that took place in 2011 through 2013.
The Crown position is that the pre-charge conduct of Ms. Capuano and Mr. Fox is relevant to the extent that it relates to Ms. Capuano's credibility, or to the extent that it informs the elements of the offence. That is the nature -- well, that would include the nature of their relationship in the -- in the charge period; Mr. Fox's intention in the charge period and Ms. Capuano's fear in the charge period.
And so I guess I'm -- I think, as Mr. Fox knows, if he wants to tender statements that Ms. Capuano's made, like these emails, they're going to have to be put to her in cross-examination. And -- and that's -- and similarly if he wants to lead statements he's made in these emails, to show -- for example, he might want to show that he had said something to her that should lead her not to have a fear of him, he's also going to have to put that to her.
My concern is that with 400 emails and 300 -- more than 300 that relate to the pre-charge period, we're probably -- well, my question is really relevance. I have at some point read all those emails. I haven't read Mr. Fox's specific selection. But I am concerned about that.
So perhaps Mr. Fox could tell Your Ladyship something about why he says that the emails are relevant to this matter.
Judge:
All right.
Fox:
First, with respect to the issue of some discrepancies between my version and Ms. Capuano's version of the history, one of the fundamental differences is going to be that I'm going to have evidence -- documentary evidence and otherwise to support every claim that I'm going to be making. So, sure, we're going to hear that her position is that I disappeared with our son and she had no contact with us because of that. But by her own admissions, in her own letters and recordings, she admits that she knew where we were.
One of the things that I'm trying to show with this extensive email history and the history that's on the website is that the reality of this situation is exactly the opposite of how Desiree -- or Ms. Capuano is trying to present it. The emails clearly show that she's the one that was threatening me. She's the one that was harassing me, being belligerent, trying to make things very difficult for me prior to me being deported here. She also admits openly, after the fact, that she was the one that called Homeland Security to get me deported, strictly so that she could get custody of our son.
Now, I think that these are issues that are very critical, in a criminal harassment case, for the jury to be aware of, because this -- when you get right down to it, this is a situation of a person who was doing a lot of bad things to another person, and then when the tables started to turn she ran to the police and accused me of criminal harassment.
So if we start taking some of the truths away from it we're going to end up with something that's going to be very skewed in Ms. Capuano's favour, I believe. That's -- that's why I believe that this thick volume of emails is relevant and important.
Now, that's not to say that every single email in there is. That's part of what I would hope Mr. Lagemaat would determine as he's going through them, after I annotate them and highlight them for him. He could determine which ones would be the most relevant or the most significant to present to the jury. And that's really all I would have to say about that.
Myhre:
My Lady, that sounds like a sensible way to proceed. So Mr. Lagemaat is -- as obviously he would as -- as counsel, he'll have some discretion about what's -- to decide what's really important and what needs to be put to Ms. Capuano.
I guess we are then going to be left, at the end of the day, with not every single one of these emails going into evidence. So I'm not sure what we do then, because the books are already made. Maybe we just rip out the pages.
Judge:
Well, the Crown book -- as I understand it, it's agreed that that book can go in. Is that correct?
Fox:
The Crown book?
Myhre:
The book of excerpts from the website.
Fox:
Yeah. Yeah. Yes.
Judge:
The defence -- now, Mr. Fox, have you made a book that's bound, or are you still assembling things?
Fox:
Still assembling things.
Myhre:
That -- well, that's --
Judge:
What I would suggest is you not make a bound book that can't be taken apart. That if you're going to organize them in a -- with a cover, that it be a binder, three-ring binder, so that things can easily be taken out.
Fox:
Honestly, given my circumstances, being in custody, I wouldn't have the means of doing either one of those.
Myhre:
No, the Crown has -- My Lady, the Crown has already made the books. So maybe what I can do is have them -- have the binding taken out and have -- have them hole-punched and put into binders.
Judge:
I think that would be wise. What we do not want is to be giving the jury a great load of paper and then saying half of it, or more than half of it is to be taken out and is not relevant, and it just gets confusing.
Myhre:
Mm-hmm.
Judge:
And you can't be leaving material with the jury that hasn't been addressed in some way in the evidence.
Myhre:
My Lady, I think it might be prudent to discuss the collateral evidence rule with Mr. Fox. It sounds to me like most of the stuff he intends to put -- have counsel put to Ms. Capuano is her own statements. And of course those can be put to her. But as far as proving -- and he may not be intending to do this, but just in case he is, Crown position would be that he's not entitled to call evidence as part of his case to disprove things that she's saying.
Judge:
That's the usual rule. The collateral evidence rule essentially says that when you cross-examine a witness about something to do with their credibility, you're -- and the expression is you're stuck with the answer. You don't get to then call further evidence to disprove what the witness has said, unless that evidence relates directly to the charge.
So if it does not, and it relates to background history, essentially you can ask the question, you can strongly suggest through Mr. Lagemaat, Mr. Fox, that things were different from how Ms. Capuano has testified. And she can be shown documents and asked to comment on them, or to refresh her memory, or agree that she said this earlier. But if she completely denies everything, most of the time you're stuck with that answer. You don't get to then call witnesses to prove that, for example, she knew where you were when you were, according to her, keeping incognito, or whatever the expression was.
Otherwise, trials, as you can understand, could divert into hundreds of little sub issues. They have to remain focused, and the focus is the charge and the elements of the offences that are charged.
Fox:
I understand. Thank you.
Myhre:
Well, and just to continue on with the topic of relevance and the history of this relationship, obviously if the Crown is going to be tendering some evidence through Ms. Capuano of her version of events, a summary of her version of events leading up to Mr. Fox being deported, then it's going to be relevant to question her -- in my submission it's relevant to question her about some of those details and maybe contradict her to show if Mr. Fox and his counsel feel like it affects her credibility. But if the Crown gets to the point where the Crown is of the opinion that things are really devolving into barely relevant issues, then at some point the Crown may object.
Judge:
Just let me interject. Madam Registrar, is there another matter in the courtroom at 2 o'clock?
Clerk:
It's at 2:30, My Lady.
Judge:
All right. Thank you.
I'm wondering if a good way of dealing with the background would be slightly different from the way you've proposed, Mr. Myhre. You said you would propose to take Ms. Capuano briefly through the background from her perspective --
Myhre:
Yes.
Judge:
-- by leading her and keeping her focused, so that she doesn't go off into every little issue in great detail. You know, and you've been very fair in saying, that Mr. Fox's perspective on the background is very different.
I'm wondering if a way of dealing with it might be to have from each side a short written summary of what the background is said to be, and simply place them both before the jury in a neutral way, saying, "This is just background from two different perspectives," informing the context that the jury is then asked to deal with, which is the later one, the events in 2015, 2016.
So that what you would go over in 20 minutes, Mr. Myhre, could be in a short written document. And Mr. Fox could equally have a short written document providing a very high level overview of his perspective. I'm thinking a page, a page and a half from each.
And that those would be placed before the jury at the beginning, so they've got both of them squarely in view. And there would be then no need to go in -- into any further detail in the oral evidence.
Myhre:
That idea certainly has the merit of being clean. The only difficulty I'm going to have with that is logistics, just because we are so close to the trial. It's not something I can see having prepared prior to the morning of trial. I'm not meeting with -- meeting in person with Ms. Capuano until Sunday, and I don't know that she'll have time to prepare or review something like that between now and then.
The other thing is there is such a statement from Mr. Fox, as I say, in the background. It's already -- already runs to about -- well, dealing with that period of time, maybe, I don't know, eight pages or so.
Fox:
If it helps at all, my preference on the matter would be for Ms. Capuano to testify in front of the jury on those, and for her to be cross-examined by us afterwards on her statements.
Judge:
All right. But you do understand, Mr. Fox, that there can't be unlimited cross-examination on every detail of the background?
Fox:
I understand. I'm thinking three, four questions, really. That's it.
Judge:
I see. In view of the volume of blogs and emails and backgrounds and issues, given the backgrounds that are in strong dispute, I have to say I'm worried about the amount of time we have scheduled for the trial. And part of the reason for my worry is that I have other commitments after the time we have scheduled. And when one does a trial with a jury, you don't adjourn trials, if we run out of time, and ask the jury to come back another time. You just keep on going. So I could end up in an extremely difficult position if I remain the trial judge for this matter.
Mr. Myhre and Mr. Fox, your thoughts.
Fox:
Well, I believe we have three weeks scheduled currently. And if -- if Ms. Capuano's testimony goes as I believe it is going to go, probably a large number of the witnesses I was intending to call after Ms. Capuano probably aren't going to be needed. And so at this point I envision that probably 80 percent of the trial time is going to be Ms. Capuano.
Judge:
I see.
Fox:
So I mean on -- on my end I don't believe that it's -- I don't think at this point that it's even going to come near the three weeks that we originally anticipated. I think -- I'm guessing probably a week and a half to two weeks.
Myhre:
My Lady, I wonder if Mr. Fox has a very rough estimate of how long he thinks counsel will be cross-examining Ms. Capuano?
My estimate was that her evidence would take a day. As I think about the book, I'm thinking a day and a half is conceivable. But I'm quite comfortable that in direct she'll be done in a day and a half.
Fox:
I would envision three to four days for our cross.
Myhre:
So then, My Lady, that's pretty close to our original time estimate. And --
Judge:
Well, you have to remember we'll lose time at the beginning of the trial. I'll need to give instructions to the jury at the beginning. That will take over an hour. There'll be a Crown opening. So we'll -- we can easily lose the morning of the first day.
Myhre:
Mm-hmm.
Judge:
So it looks, from those estimates, as though at the high end Ms. Capuano's evidence would go into the following week, to the Monday, Tuesday?
Myhre:
Yes.
Judge:
The other Crown witnesses, as I understand, are brief except -- where were we with the statement?
Myhre:
The statement takes approximately three hours. I think it's just over three hours. And then for the remaining Crown witnesses I said half a day for the ATF agent and Mr. Mangat, and then there's Constable Dupont who will, I think, in direct be 15 minutes.
Judge:
All right. So those are going to be two days between them?
Myhre:
Yes.
Judge:
So that takes us to near the end of the second week. Does that change your estimate, Mr. Fox?
Fox:
No.
Judge:
All right. Anything else, Mr. Myhre?
Myhre:
No, My Lady.
Judge:
Are you content with that trial estimate, Mr. Myhre?
Myhre:
Yes, My Lady. I -- it's -- you're always hesitant to say things you don't have full control over, but you know one thing that Mr. Fox is good at is being organized and -- and in my experience has been fairly accurate in things as far as his estimates of evidence.
Judge:
All right. Now, speaking of organized, Mr. Fox, I wasn't there for the jury selection. I know that quite some time ago another judge gave you a document that provides an overview of the criminal trial process. It was intended to help you as a person who's representing yourself.
Fox:
Yes.
Judge:
I know you've consulted other sources, both people and sources of information on the web and so forth. Are -- do you have any questions about how we're going to conduct the trial, about the trial process? Is there anything that you're feeling uncomfortable about or that you would like us to go over at the moment?
Fox:
No, nothing at all. I believe I'm completely ready to proceed at this point.
Judge:
Right.
Fox:
Oh --
Judge:
It's always a tough one, asking you to tell me what you don't know, because almost by definition you don't know it. But I have some comfort in the fact that you appear to be well-informed and you appear to have been dealing quite extensively with Mr. Myhre, and reading and consulting.
So you are intending to represent yourself and you feel prepared to do so?
Fox:
Yes.
Judge:
Is that what you're telling me?
Fox:
Yes, that is correct.
Judge:
All right. Mr. Myhre, is there anything that you think it might be useful to go over for Mr. Fox, that he might have overlooked or not come across? You raised the matter about the evidentiary burden in relation to s. 93. Is there anything else?
Myhre:
No, it was really just those evidentiary issues that -- that we've just canvassed already in this pretrial conference, My Lady. From everything I've seen from Mr. Fox, he has a pretty decent grasp of what the law is and the trial process.
Judge:
All right. Thank you then. Is there anything else we should deal with?
Fox:
Oh. One thing that I do want to mention just for the record, but it's not really something I need -- I think needs to be addressed at this point, is the issues I was having with the jail before, with receiving my evidence. The issues never went away. I did follow the complaint process all the way through to the Ombudsman level, and their finding was that I am currently in the appropriate venue to address such issues, those being Charter issues. So they essentially said that it's something that I should take up with the B.C. Supreme Court; not that I'm going to at this point. Down the road maybe I'll do something about it.
Judge:
But you're not intending to do that as part of this trial process?
Fox:
That's correct. The evidence that I was hoping to get at that point, I don't think it's going to be necessary, given the other evidence that I have immediate access to right now.
Judge:
Very well. Actually that reminds me of an issue, Mr. Fox. You're in custody and you presumably will be through the trial. Do you intend to dress in civilian clothes? Do you have any concern -- what I'm really asking is do you have any concern about the jury knowing that you're in custody?
Fox:
Well, two things that I would say on that, and the first is I would prefer to be in the -- the custody clothes.
Judge:
I'm sorry, I didn't hear what you said.
Fox:
Well, I would prefer actually to be in the -- the jail clothes. And since the jury selection was done wearing the jail clothes, I think at this point the jury is already quite aware of that.
Judge:
All right.
Fox:
When I say that they're quite aware of that, I mean quite aware that I'm in custody, not that I would prefer to wear the jail clothes.
Judge:
I understood thank, thank you. But thanks for clarifying.
All right. Anything else we should discuss? Anything else to raise, Mr. Fox?
Fox:
No, I don't believe so.
Judge:
All right. Mr. Myhre, nothing else?
Myhre:
No, My Lady.
Judge:
All right. Thank you both then, and we'll adjourn.
If something comes up between now and Monday, kindly notify trial scheduling.
And, Mr. Myhre, you'll talk to the Registry about those various things that are going to be needed in the courtroom: screen, materi -- equipment for playing audio. And there was something else, I think.
Myhre:
Oh yes, there was an exhibit from the preliminary --
Judge:
Yes.
Myhre:
-- inquiry.
Judge:
Yes. All right.
Myhre:
Yes.
Judge:
Thank you very much. We'll adjourn.
Myhre:
Thank you.
Fox:
Thank you.
(TELECONFERENCE CONCLUDES)
(PROCEEDINGS ADJOURNED TO JUNE 12, 2017, AT 10:00 A.M., FOR TRIAL)
Transcriber: J. Cairns