Transcript of Trial Proceedings (2017-06-21)
Synopsis
At this appearance, Natalie Clancy and Yvette Brend from CBC News, applied to receive copies of the trial exhibits for the purpose of reporting on them. Neither I nor the Prosecutor Mark Myhre opposed the request. On my part, it was because I wanted everything about the trial to be as public as possible.
During her submissions, Clancy inadvertently mentioned she had already received a copy of the Crown's Book of documents p25l33-34. This is a major issue because the Prosecution is not supposed to release it's trial material to the news media. This also shows how the Canadian prosecutors work hand in hand with the Canadian news media.
PDF27178
Vancouver Registry
In the Supreme Court of British Columbia
(BEFORE THE HONOURABLE MADAM JUSTICE HOLMES AND JURY)
Vancouver, B.C.
June 21, 2017
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
BAN ON PUBLICATION - INHERENT JURISDICTION
27178
Vancouver Registry
In the Supreme Court of British Columbia
(BEFORE THE HONOURABLE MADAM JUSTICE HOLMES AND JURY)
Vancouver, B.C.
June 21, 2017
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
BAN ON PUBLICATION - INHERENT JURISDICTION
Crown Counsel: Mark Myhre
Appearing on his own behalf: Patrick Fox
Appearing as Agent for CBC News: Yvette Brend (in a.m.)
Natalie Clancy (in p.m.)
Natalie Clancy (in p.m.)
INDEX
- SUBMISSIONS RE MEDIA FOR CBC BY NATALIE CLANCY
- SUBMISSIONS RE MEDIA FOR CROWN BY MR. MYHRE
- SUBMISSIONS RE MEDIA FOR ACCUSED BY PATRICK FOX
EXHIBITS
- MARKED G FOR IDENTIFICATION: Document titled "R. v. Fox Final Instructions to the Jury"
- MARKED H FOR IDENTIFICATION: Handwritten note from Juror 8 dated June 21, 2017
RULINGS
Vancouver, B.C.
June 21, 2017
(JURY OUT)
Clerk:
Recalling the matter of Her Majesty the Queen against Patrick Henry Fox, My Lady.
Judge:
Yes. The first order of business is that the draft of the charge that I made available to Mr. Myhre, and Mr. Myhre to give to Mr. Fox, should be marked as an exhibit for identification.
Clerk:
That will be Exhibit G for Identification, My Lady.
MARKED G FOR IDENTIFICATION: Document titled "R. v. Fox Final Instructions to the Jury"
Judge:
Thank you. And heres a copy, Madam Registrar, that will be Exhibit G.
Second, one of the jurors has a problem. Mr. Sheriff has asked the juror to write it in a note. The juror is Juror 8, who sits in the front row, second from the left, and Im not going to read out the note. It deals with a medical issue. Im going to hand it to Madam Registrar and ask that Mr. Myhre and Mr. Fox have an opportunity to read it. It sounds like not a severe medical issue, but obviously one that would prevent the juror continuing today and, depending on the diagnosis, possibly for longer.
Fox:
Its my understanding that the loss of one juror --
Judge:
Just -- just a moment, Mr. Fox.
Fox:
Oh, sorry.
Judge:
Have you had an opportunity to read that note?
Fox:
Yes, I have.
Judge:
Could I have it back? I didnt make copies of it, and Id like to just look at it for now. It will end up marked as an exhibit for identification. That should be Exhibit H, please, for identification, and it should be sealed.
MARKED H FOR IDENTIFICATION: Handwritten note from Juror 8 dated June 21, 2017
Judge:
That juror is here in the building but not with the other jurors at the moment. Where -- what you are probably going to say, Mr. Fox, is that the Criminal Code does permit the trial to continue with fewer than 12 jurors. It can continue with either 11 or with 10. What I will tell you, because youre representing yourself and you may not be aware of this, is that it would be very unusual for the defence to wish, and -- and sometimes the Crown to wish to immediately to proceed without a full jury box.
Part of the reason for that is that, because the burden of proof is on the Crown to prove each element of the charges beyond a reasonable doubt, and because the jury must be must be unanimous in order to reach a verdict, generally its seen as advantageous to the defence to have a full jury box. There are circumstances where thats simply not possible, but one usually doesnt leap to that result with allowing a little time to see if, for example, the jurors problem could be quickly addressed and corrected. It sounds as though that is possible, although obviously we dont know that, and nor does the juror.
Mr. Fox, do you have a submission, youre on your feet?
Fox:
No, no, I was on my feet because you were addressing me.
Judge:
All right. Mr. Myhre?
Myhre:
No submissions, My Lady.
Judge:
Well, it would be helpful to have some submissions. It seems that the options are proceed immediately to excuse the juror and continue with 11, stand down for a half a day or a day for the juror to seek medical attention and report back on his condition. Its likely to take a full day, I would think, rather than a half-day.
At that point we are looking at Thursday for closing, this Friday for a charge. Im never keen to charge a jury on a Friday -- Friday because its quite likely that theyll then be required to deliberate on the weekend. Its not inevitable, but its a fair possibility.
Theres a balancing exercise obviously moving the trial along, keeping the jury box as full as we reasonably can, and inconveniencing the jury as little as possible, while also having a fair trial.
So, Mr. Fox, do you have a submission or a preference?
Fox:
In this circumstance, would it be inappropriate for me to defer to yourself and Mr. Myhre on this, and I would like to keep the jury box full, and I would like to get this over with as quickly as possible, but at the same time I understand the jurors predicament.
Judge:
I think theres no question that the juror cannot and should not continue this morning, for all sorts of reasons. So the options are, as Ive outlined them, unless you or Mr. Myhre have other ideas.
Myhre:
My Lady, there are no good options. I guess, on balance, as I think about it, the Crowns preference would be to excuse that juror, if thats Mr. Foxs preference. If Mr. Foxs preference is to keep a full complement, we should respect that and adjourn a day, hoping that tomorrow the juror will be in better shape.
Judge:
So when you say excuse you mean for the day?
Myhre:
No, I mean, reduce the number of jurors.
Judge:
I see.
Fox:
I might propose then that we could give that juror an opportunity to deal with this, perhaps a day, because there are going to be some issues that were going to need to address the charge, right. I mean, when I was looking through it, there were some -- some wording that I would like to discuss. And we were -- I believe maybe we were going to address that either this afternoon or tomorrow.
Judge:
Yes, we were. Mr. Sheriff, do we have any indication from the juror about how long he needs to get medical advice? Would that be something he could do in the morning?
Sheriff:
I can ask him, My Lady, if he can do that sometime today, get back to us today.
Judge:
Im thinking about the morning, whether that could be done in the morning so that we might be in a position -- actually, no, hes not going to be fit to continue this afternoon.
All right. Lets go step by step. I think well start by giving the juror the day to seek medical attention, and I will ask Mr. Sheriff to ask that juror to contact Mr. Sheriff before the end of the day and let him know how hes doing, so that well have that information --
Sheriff:
Yes, My Lady.
Judge:
-- for tomorrow morning, and Ill ask the jury, the remainder of the jury to come in, I will tell them simply that there is a personal issue with one of the jurors, and were going to have to postpone things by a day, and come back tomorrow.
And then well see how we do with that other juror, well probably have a discussion at the very end of today once we know how the juror is -- what the diagnosis is and estimated time before he would be able to continue, and then well make a decision about whether in fact we ask the jury to come back tomorrow as theyve been requested to do, or whether we phone them and put them off for another day or over until Monday.
Is that agreeable?
Myhre:
Yes, My Lady.
Fox:
Yes, My Lady.
Judge:
All right. Thank you. So, perhaps first, since the jury is here, they should be asked to come in and I will excuse them for the day.
Sheriff:
The jury, My Lady.
(JURY IN)
Judge:
Good morning.
Members of the jury, youve probably noticed that there are 11 of you today. One of the members of the jury has a personal issue today that prevents him serving today. You do not need to be concerned about that, and you do not need to ask yourselves what it involves.
But I am going to excuse you for the day, and ask you to come back tomorrow. There is a slight chance that I may need to excuse you for a little longer and, if that is the case, Mr. Sheriff or one of the other sheriffs will be in touch with by telephone toward the end of the day. But Im hopeful that well be able to continue tomorrow.
So essentially this sets us back by a day from the time -- the plan or the schedule that I outlined for you the other day. I regret the fact we cant continue today. These things do happen, and its an unavoidable situation.
I thank you for attending today.
(JURY OUT)
Judge:
All right. Now, youve probably not had the draft charge for long enough to have read it through.
Fox:
Thats correct.
Judge:
All right. Shall we stand down and give you an opportunity to review it?
Fox:
All right, please.
Submissions of Yvette Brend from CBC News
Judge:
Ive been told also that Ms. Natalie Clancy has an application. Is Ms. Clancy present in the courtroom?
Brend:
No. My name is Yvette Brend, Im standing in for her. She had another assignment.
Judge:
All right. Im not proposing to deal with it now, but simply wanted to acknowledge the fact that Ive received an application and suggest that steps be taken to set it down at a time thats convenient for everyone, who will include Crown counsel and Mr. Fox. So, how do you propose to deal with that or how does Ms. Clancy propose to deal with that?
Brend:
Im happy to present it now or whenever its convenient to you. Were basically asking for access to the exhibits.
Judge:
All right. Mr. Myhre, have you received this application?
Myhre:
Yes, My Lady, and the Crown has no opposition to the media having access to any of the exhibits.
Judge:
For all purposes, including publication?
Myhre:
Yes.
Judge:
All right. The question I need to ask is if, and obviously the jury hasnt made a finding, but if the material in say the Crown book of documents were to be found to amount to evidence constituting criminal harassment, would the court not have some obligation not to essentially contribute to the compounding of the problem? Theres an if in there, but...
Brend:
If I may, most of the exhibits that youre referring to have already been [indiscernible/not at microphone] exhibits [indiscernible].
Judge:
Can I ask you to come forward partly so your voice gets picked up on the recording?
Brend:
Sure, I can do that. I havent done this before.
Myhre:
You can stand here.
Brend:
Most of the exhibits that youre referring to have already been in media reports. There would only a be few exhibits that havent been made public before.
Judge:
So what ones would you be looking for then?
Brend:
We wanted access to all videos and photographs and -- and exhibits because of the organization, because of the accuracy issues, but also because they help illustrate the story that were going to tell at the end of the trial. We make journalistic decisions at CBC not to name certain parties and to -- and be respectful in all cases of what --
Judge:
All right.
Brend:
-- peoples wishes were around this before its ever ruled by the court, wed never name the children, we have very high journalistic standards around that.
Judge:
I dont doubt that. I suppose if the exhibits were, for example, in support of charges of child pornography and were pictures, the court might feel uncomfortable making them available for publication because the harm, if there was a harm, would be repeated or compounded by further disclosure or publication, and I -- Im simply wondering out loud whether were in a similar situation here in relation to some of the exhibits, certainly not all of them.
Brend:
And just to respond to that, in a case like that, we would have raised very serious standards and -- and serious discussions about whats in the public interest to publish. We would never publish pictures of a child or, you know, something that would --
Judge:
I see.
Brend:
-- perpetuate something like that. I mean, I cant speak for other media organizations, but CBC has some of the highest standards in the world now.
Judge:
All right. Thank you. Thats helpful to know.
I think our first order of business has to be to keep this trial going. As youve just seen its been thrown back a little bit. That may give an opportunity for your application to be heard if Mr. Myhre and Mr. Fox feel ready to respond to it, in other words, that theyve had sufficient time to think about the issues.
Mr. Myhre, do you have a suggestion about timing? Mr. Fox obviously needs time now to review the draft charge, and that is the first order of business. Mr. Fox?
Fox:
I would just like to say with respect to this application from CBC or from Ms. Clancy, I have no opposition to it.
Judge:
And does your lack of opposition apply to all of the exhibits, and I know youre obviously thinking about those exhibits that came from the website, but there are also, for example, photographs of things seized in Carson County. What else are there?
Fox:
If there were any that I would have any concern about it would be my recorded statement to the RCMP, but even that I dont have opposition to. I believe this should be as public as possible, this entire proceeding.
Judge:
All right. Im sorry, I missed your name?
Brend:
Its Yvette Brend, B-r-e-n-d.
Judge:
Thank you. There are some exhibits that are sealed. Those, Im pretty sure all, relate -- oh, that may not be the case, but many of them relate to juror issues, such as the one you saw this morning where a note has been sealed. And Im assuming those are not exhibits youre concerned about?
Brend:
Those are not of great interest to us, to be honest. Wed never report that unless there is -- cogent to the verdict.
Judge:
All right. Theres an order that is marked here as being sealed. I dont recall what that is. Do you, Mr. Myhre? Two orders actually on May 23.
Clerk:
Lets just have the -- I dont know what clerk did that. Theyve put the order was made, meaning the sealed order, is how they worded it.
Judge:
Oh, an order that there be a --
Clerk:
A seal --
Judge:
-- seal.
Clerk:
-- so they worded it that way.
Judge:
Its not that I made an order and the order was sealed?
Clerk:
No, just --
Judge:
All right.
Clerk:
-- that the...
Judge:
Would it be appropriate timewise to deal with this application perhaps sometime this afternoon? Would that work from the perspective of also dealing with the issues concerning the charge, which I think have to have priority?
Myhre:
Yes.
Judge:
All right. Mr. Fox, yes, would that work for you?
Fox:
Yes.
Judge:
Ms. Brend?
Brend:
[No audible response].
Judge:
All right. Shall we say two oclock? Does that suit you, Ms. Brend?
Brend:
Thank you.
Judge:
All right. Then well deal with it at 2:00. Madam Registrar, you probably have all the exhibits in the courtroom, do you?
Clerk:
Yes, I do, My Lady.
Judge:
All right. It would be helpful for them to be there at two oclock so, if theres any doubt as to what something is, its there to be seen.
Ms. Brend, have you given any consideration to an order for certain purposes and not for others or not?
Brend:
Wed prefer to be able to use it for broadcast and for print, if possible, because it just seems to be more open, but I could speak to that at two oclock, if you like, I can speak to Natalie in the meantime.
Judge:
Thank you. And my concern is, at this point and Ive not heard submissions, but my concern is that we dont know at this point whether the body of material that the Crown has tendered is going to be found by the jury to essentially amount to criminal harassment and, if it is, theres a potential issue in the court simply handing it over for further publication at somebody elses discretion without any constraints on -- on that, but its something to think about.
Brend:
Yes.
Judge:
Thank you. All right. So well deal with that application at 2:00, thank you. Well stand down now. How long would you like roughly, Mr. Fox?
Fox:
Its very difficult for me to -- to estimate. Im sure a lot of the --
Judge:
I wont hold you to it. If you need more time, youll have it.
Fox:
Can we say an hour? Is that too long or?
Judge:
No, thats not too long.
Fox:
Okay.
Judge:
Mr. Myhre, is that long enough for you?
Myhre:
Yes, My Lady.
Judge:
So what is it now, 20 to 11:00, shall we start at quarter to 12:00, 11:45?
Fox:
Okay.
Judge:
Anything else we should deal with right now?
Myhre:
No, I dont think so.
Judge:
All right. Thank you.
Clerk:
Order in court. This court stands adjourned until 11:45 a.m.
(PROCEEDINGS ADJOURNED UNTIL 11:45 A.M.)
(PROCEEDINGS RECONVENED)
Judge:
I seem to be missing most of what I need. Oh, Ive got my copy of the charge, all right. Go ahead.
Myhre:
I have three comments, My Lady. The first one relates to page 19, paragraph 84.
Judge:
Yes.
Myhre:
My Lady, Im content with your phrasing in paragraph 84, and I dont -- as Ive reflected on it more, I dont really think the jury needs to think about indirect communications because my submission to the jury will be that Mr. Fox made the website direct communication by telling Ms. Capuano about it and referring her to it repeatedly.
Judge:
All right.
Myhre:
Paragraph 86, My Lady, I do think there should be an instruction on threatening conduct since my submission certainly is that some of the things Mr. Fox did could constitute both because they are repeated communication and some of them, in my submission, are threats, and --
Judge:
Thats not really my question.
Myhre:
Oh.
Judge:
My question is whether it adds anything to charge on (d) as well as (b), and I suppose another way of asking that question would be if the jury did not find conduct that fell within (b) could it possibly find conduct that fell within (d)? I would think that would be extremely unlikely, and by charging on (d) as well, I -- subject to submissions Mr. Fox may have, I dont disagree that theres evidence there that supports a charge on (d), but when I look at trying to make the description of the defence as the -- of -- of the offence as easy as possible for a jury to deal with, I have to wonder about the utility of charging on (d) as well.
And, as Ive attempted to say in that little note built into paragraph 86, when you start to charge on threatening conduct, you start to cover some of the issues that are -- have to be separately dealt with as separate issues concerning harassment, such as Mr. Foxs intent, Ms. Capuanos state of mind, and so forth.
Myhre:
I see.
Judge:
It just appears to me to make the charge more complex, potentially more confusing, and likely for no reason that would assist the Crown and certainly wouldnt assist the defence.
Myhre:
Could I think about that --
Judge:
Yes.
Myhre:
-- a little bit more? My comment on the -- I -- on the paragraph relates to both how Your Ladyship has phrased fear in this section and -- and a further section. In my submission, if this does remain in the charge, it should be made clear to the jury that the concerns -- the sense of fear include concerns for physical and mental wellbeing.
Judge:
Now, that is covered in the other portion where its addressing --
Myhre:
Yes.
Judge:
-- the separate issue, but youd like to see it addressed here, as well? That seems reasonable.
Myhre:
If we do leave this part in. And so flipping ahead to that next section where Your Ladyship does mention it at page 24, paragraph 112, I would ask Your Ladyship to include the what I take to be a statement of the law in the Goodwin case at paragraph 22, that the victim need not suffer ill-health or major disruption so that the jury has some idea of the extent of the fear that would be required to make out the offence.
Judge:
I actually had that in a previous draft and took it out. All right. Thank you.
Myhre:
Thats all, My Lady.
Judge:
Was there another question I had embedded in this document? Perhaps not. Perhaps youve addressed them both. Are you content with the reference to the types of evidence the jury may want to consider in relation to various issues?
Myhre:
Yes.
Judge:
One other question, if you would look at the description of Count 2, which begins on page 26, I could find no model instruction for this offence, so I basically crafted it from my review of what the elements appear to be as they relate to what appears to be in issue in this case. I wondered whether to -- if you look at the third issue thats listed on page 27, whether Mr. Fox was in possession of firearms while they were transported from his residence to the Packaging Depot until they were released to UPS.
I wondered whether to subdivide that into two issues; one being whether the firearms that ultimately were found in the boxes in Ms. Munozs residence were transported from Mr. Foxs residence to the Packaging Depot and then released to UPS.
That would be one issue, and the other would be, if they were, was Mr. Fox in possession of them during that time, but it occurred to me that all of the evidence concerning both of those issues would be identical and that there might be no utility to subdividing the issue as Ive expressed it. But there is, I should point this out, there is arguably an assumption built in to issue 3 that the firearms did travel that route, and that may be problematic from Mr. Foxs perspective or from the Crowns. So Id appreciate your submissions on that, Mr. Myhre.
Myhre:
My Lady, could I give some thought to that while Mr. Fox raises whatever issues he has?
Judge:
All right.
Fox:
First, on page 19, paragraph 83, it reads [as read in]:
It may be to Ms. Capuano or to anyone she knows...
Judge:
Can I just get there --
Fox:
Sure.
Judge:
-- and --
Fox:
Sorry.
Judge:
-- make sure I understand what the context is? Page 19, paragraph 83. All right.
Fox:
Now, the part that reads "or to anyone she knows," that the way its written would include Gabriel, though Im sure that my communication with Gabriel would not be included in this charge; is that right?
Judge:
Remember this is only one issue. Its just the threshold issue of was there repeated communication.
Fox:
Right.
Judge:
And on that point, I think arguably, yes, communication with Gabriel gets repeated could fall within -- could satisfy --
Fox:
Hmm.
Judge:
-- this first element, but there would be -- well, would there -- whats troubling you about this and then I can address with the Crown whether theres a way of dealing with it? Does the Crown -- first of all, does the Crown rely on any communication with Gabriel?
Myhre:
No, its more the communication has with Ms. Capuano about Gabriel, about how hes using Gabriel as a pawn to hurt her emotionally.
Judge:
All right. And then tell me whats troubling you about it, Mr. Fox, and Ill try and find a way to fix it.
Fox:
I just wouldnt want a jury to think that that might -- that my communication with Gabriel maybe included in that since I have very frequent -- or had until the time I was arrested very frequent communication with Gabriel long after the point of the first arrest where I was -- there was the no-contact order. Now, Im not sure, I mean, there hasnt been any evidence submitted of my contact with Gabriel.
Judge:
Well, there was evidence that you were copying Gabriel on most of the emails.
Fox:
Right, right. But, for example, my telephone calls with Gabriel say on a weekly or every few days speaking with him on the phone, but the jury never heard about that so I dont think that that would be an issue, although under the statute, that could be a problem.
Judge:
And, as I think about it, Mr. Fox, it may be part of the Crowns position that, by copying Gabriel with a number of the emails that weve seen, you were contributing to the harassing effect on Ms. Capuano.
Fox:
Hmm. But then she also was copying him.
Judge:
All right.
Fox:
Next, in paragraph 84, the next paragraph theres a segment that reads [as read in]:
If the person who posted the material or sent an email intended the person who read or received it to bring it to Ms. Capuanos attention...
Judge:
And they did.
Fox:
Im sorry?
Judge:
And they did.
Fox:
Right, right. So that gets into the -- the intended is -- the intention of the -- the speaker or the writer, I assume.
Judge:
Yes.
Fox:
I wonder if it would be acceptable to maybe clarify that a little bit for the jurors because there is a lot of content on the website, and some of the -- I mean, my position is that all of the content on the website was not intended for Ms. Capuano to -- to read. And if -- if thats the case, then from what you have here, it seems that the burden -- hmm, somebody would have to establish or convince the jury that it was my intention that she actually read or receive that material, no?
Judge:
Yes. Now, does it answer your concern if you read on in paragraph 85 and Im starting at the second line [as read in]:
Keep in mind that material is not direct or indirect communication with Ms. Capuano unless it came to her attention.
Fox:
But, see, with that, if I write something on the website with no intention of Ms. Capuano seeing it --
Judge:
Ah, yes, thats a different issue.
Fox:
-- but it comes to her attention -- you see, my big concern here is that Ms. Capuano --
Judge:
How about this? How -- unless it was intended to come to her attention, and it did.
Fox:
Would it be okay if we said "intended by Mr. Fox to come to her attention"?
Judge:
Yes.
Fox:
Thank you.
Judge:
All right.
Fox:
In paragraph 86, and I know that Mr. Myhre was just speaking with you about paragraph 86 a few moments ago, so Im not sure what the status of the wording of that paragraph is going to be or if its going to be removed or, but --
Judge:
Mr. Myhre wants to think about that. Its an alternative way of committing the conduct for the offence and Ive asked him to consider whether the Crown needs to rely on that.
Fox:
Right.
Judge:
But lets assume for now that the Crown does with so rely on it, and so if you have comments, perhaps let me know what they are.
Fox:
The -- well, the first line outside of the question bracket, the phrase or term directed at was used, and that is a term Ive had issue with with respect to Ms. Capuanos order of protection in Arizona. Some people misconstrue the term directed at to include, for example, statements about Ms. Capuano, but which werent actually to her, and I would ask maybe we could provide some clarification for the jury so that they understand that directed at would mean, for example, statements made to Ms. Capuano as opposed -- as opposed to statements made about Ms. Capuano but to other parties.
Judge:
I see. Let me just check the language in the Criminal Code. Well, its threatening conduct, and I think probably the intent here is that it be that the threat part of is directed at Ms. Capuano. So conceivably there could be a statement to someone else that would amount to a threat to Ms. Capuano. Ill -- Ill think about that one --
Fox:
Okay.
Judge:
-- here and Ill hear Mr. Myhres submissions on that, too.
Fox:
Thank you.
Judge:
Do we want to deal with that now, Mr. Myhre, or while, if you wouldnt mind, Mr. Fox, to deal with issues one by one and thats --
Fox:
Sure.
Judge:
-- probably easier.
Myhre:
My Lady, the thing that comes to mind with that is one of the examples the Crown cites of threatening conduct by Mr. Fox is posting the pictures of Sage that Ms. Capuano perceives as threatening to Sage, and hes not directing any statement to Ms. Capuano or to Sage, but it is conduct on his part that could be interpreted as designed to instill a sense of fear.
Judge:
I see. Would it help solve the problem, Mr. Fox, and would it conform with your understanding of the law, Mr. Myhre, if I were to revise that slightly. The first line would stay the same [as read in]:
Threatening conduct is conduct directed at Ms. Capuano and her family that was used as a tool of intimidation toward her...
And I would add that in:
... and was designed to instill a sense of fear in her.
As it now reads. Would that help, Mr. Fox?
Fox:
Yes, yes. I believe that would, yeah, it would be directed at the issue.
Judge:
And thats agreeable, Mr. Myhre?
Myhre:
Yes, My Lady.
Judge:
Thank you. All right.
Fox:
While were on the topic of threatening conduct in that just little paragraph though, Mr. Myhre did bring up just a moment ago something that I guess would be a bit of concern for me. On -- when trying to determine or prove that something was threatening conduct, is it the -- the perception of the person being threatened thats relevant or the intention of the person who is allegedly threatening is relevant? I believe its the intention of the person whos allegedly threatening, right, if his intention was not necessarily how the other party perceived it.
Judge:
I think its both.
Fox:
Hmm.
Judge:
Its the -- the intent of the person doing the act is implicit in directed at Ms. Capuano and her family and implicit in designed to instill a sense of fear.
Fox:
Right.
Judge:
And the understanding of the other person is implicit in what Ive said at paragraph 88, conduct is threatening only if a reasonable person in the same circumstances would find it threatening.
Fox:
Now, there are some circumstances in this case, some of the emails, for example, some of the communication where statements that I made were certainly not intended to be threatening at all, for example, referencing as to my PAL, Mr. Myhre might argue that she felt threatened or intimidated by it, so is it threatening conduct simply because she misinterpreted something or? My understanding of the threatening conduct is that there also must be an intent on the part of the person engaging in that conduct. I mean, otherwise -- otherwise, I think that theres a lot of room for potential abuse there for people to...
Judge:
All right. I understand your concern, and I will revise either this passage here or I will say something when Im doing the description of the position of the defence to say that its -- essentially its the position of the defence that, on the face of the communication itself, the reasonable inference is that it was intended simply as information, not threatening, and that Ms. Capuanos interpretation of it as a threat is not a reasonable one or something along those lines. All right.
Fox:
In paragraph 89, on the same page, the second to last line that starts with the word ship, referring to shipped firearms from Burnaby to Los Angeles.
Judge:
Ah, I might want to put those two lines, that entire sentence in a slightly different way.
Fox:
If it helps at all, theres no dispute that I certainly caused or sent my firearms to Los Angeles.
Judge:
What would you prefer that that say?
Fox:
I think sent would be the most generic.
Judge:
And youre prepared for it to say that you sent the firearms or would you like it put in a more neutral way that you must not take into account the evidence about firearms being found in Ms. Munozs residence or something along those lines in Carson, California?
Fox:
I would think for the purposes of the s. 93, just changing the ship to sent should be probably sufficient. I mean, unless youd rather go with the other [indiscernible].
Judge:
All right. Thank you.
Fox:
And if at any point you would like to break for lunch, I have no issue with that.
Judge:
All right. Okay. Lets see how we do --
Fox:
Sure.
Judge:
-- and see how many more points you have to make.
Fox:
In paragraph 90, and, sorry, there was just a lot that were clustered in this one area, but in paragraph 90, the third to last line, it says "constantly referring to her website." My concern is with the use of constantly because, as far as I know, there was only two or three references in the emails to the website and, given that there were literally hundreds of emails, I -- that might give the wrong impression.
Judge:
All right. Ill take that out.
Myhre:
Im sorry, what paragraph was that?
Fox:
Oh, that was paragraph 90, third to last line.
Judge:
All right.
Fox:
Also in paragraph 90 on page 21, on the next page, the first line "an email saying Mr. Fox was willing to shoot", the email in quest -- well, not just in that email but in the entire universe throughout my entire life Ive never stated that I was willing to shoot Ms. Capuano. The word that was used was that I would have no qualms of shooting Ms. Capuano. Maybe an --
Judge:
Shall I change it to that?
Fox:
Maybe, please, if you dont mind?
Judge:
Yes.
Fox:
In that same sentence it says also "except for the risk of being caught". Now, in that email though that wasnt the only qualifier that was used, I also said that shooting someone would be illegal and immoral, and so even -- even if there wasnt a risk of being caught, I was still saying the fact that its immoral would prevent me -- would prevent me from doing that.
Judge:
All right. Ill make a revision.
Fox:
Thank you. And then page 23, paragraph 107, the last line, "taking his email about wanting to shoot her and word wanting there, maybe change that also to having no qualms about it because certainly I would not want to shoot Ms. Capuano, unless of course its self-defence, but...
Judge:
All right.
Fox:
On page 24, paragraph 112, the term psychological or emotional security or wellbeing is used there, and you may recall in the past I had expressed the concern about the uncertainty of those terms. Maybe because Im not from Canada, those terms are unclear to me, but what -- do we believe that this is -- that these are concepts or words that the jury would have a fair idea on or?
Judge:
Well, they are words that are used in the case law.
Fox:
Right.
Judge:
I think it was at this paragraph that Mr. Myhre suggested, yes, it was, that I --
Fox:
Yeah.
Judge:
-- add something along the lines of its not necessary for there to be ill-health or a major disruption to life, and I could add something like "so long as the fear is not of trivial harm" or something like that.
Fox:
Hmm. Okay.
Judge:
And, Mr. Fox, I know youre going to want the same change about having no qualms --
Fox:
Right in 113.
Judge:
-- in paragraph 113.
Fox:
Also on that same line it states "if the risk was removed," could we mention also about if, if it was also not immoral?
Judge:
And did the email say illegal as well?
Fox:
I have a copy of it here, but Im quite certain it did. It would be illegal and immoral and could result in one spending the rest of their life in prison, I believe is how its phrased. Yes.
Judge:
All right.
Fox:
Page 26, paragraph 119, on the fourth line again it makes reference to Mr. Fox shipped his -- shipped the firearms.
Judge:
Yeah, sent.
Fox:
Thank you. On page 27, point 3, I actually had the same concern that you had brought up about if those two points should possibly be separated. But additionally I believe the way its phrased "while they were transported from his residence to the Packaging Depot" seems to be somewhat suggestive that -- that going to that aspect has been conceded to.
Judge:
"While they travelled"?
Fox:
Oh, well, no, what I mean is its never actually been established the firearms did get transported from my home to the Packaging Depot. That would be one of those --
Judge:
I see.
Fox:
-- the that jury would have to determine before they could determine the second point. Oh, until they were released -- oh, yeah, yeah. First they would have to determine that the firearms were actually present at Packaging Depot before they could determine whether they were in my possessions to get there.
Judge:
All right. So youd like to see those issues sub -- subdivided out and dealt with as two separate issues?
Fox:
Well, that -- that would be one way. Otherwise -- otherwise, wed end up with a compound statement there, right, where they would have to address two points at the --
Judge:
Youre -- youre correct. Youre correct. So Ill deal with them separately.
Fox:
Okay. Thank you.
Judge:
The only circumstances in which one can essentially compound two issues is if theres really no disagreement that, if one happened, then the other happened, and if --
Fox:
Right.
Judge:
-- one didnt happen, then the other didnt happen.
Fox:
Okay. Lets see, page 29, the same issue of [indiscernible] at the top, possession of his firearms during transport from his residence, etc.
Judge:
Oh, Im on the wrong page. Im sorry.
Fox:
Oh, sorry, page 29.
Judge:
So, yes, we need to subdivide the two issues.
Fox:
And then in paragraph 37 -- [reading quietly]. The second line says "While they were in those places", again that is suggestive --
Judge:
Well, that is now going to --
Fox:
Right.
Judge:
-- that paragraph is going to have to now come under a fourth issue.
Fox:
Right, right.
Judge:
And the jury will only get to that fourth issue if theyve found that the firearms did go to the Packaging Depot.
Fox:
In paragraph 139, there is some clarification of whats meant by possession, and I guess this stems from the discussions that were had yesterday and the day before. However, the way its raised, it seems to suggest that the firearms would be in my possession even if they were still at home at that time because technically, if I have them at home, theyre still under my control and I have access to them.
Judge:
Well, they would be in your possession.
Fox:
Right.
Judge:
But you wouldnt be committing an offence because youre authorized to have them at your home.
Fox:
Hmm, yes, thats true. Okay. Paragraph 140, its just the same issue about "while they were transported to the Packaging Depot" which presumably that will all be changed when it gets split into the two. And at the end of paragraph 140, where it talks about Agent Spizuocos testimony, one admission that was left out that Im hoping could be added in is his admission that he has no knowledge of whether or not I was present at Ms. Munozs place while the box was there. Cleary the suggestion there is that I may have brought the guns down and then put them into that box after that -- after they were delivered.
Judge:
Whether or not you were present at Ms. Munozs residence when?
Fox:
Well, I didnt state --
Judge:
When?
Fox:
-- present at her residence, but present in the U.S. Between the time that -- well, I believe I phrased it as before he seized the boxes. It would have to be before he seized the boxes because I was in custody by then.
Judge:
Let me just check his evidence. I dont have a note of you asking him anything about whether you were in the U.S.
Fox:
It was after we stood down because I had a question, and then when we came back I asked him two follow-up questions, one about the ammunition, if they were all different calibres.
Judge:
Oh, yes, I have it there, thank you.
Fox:
Okay.
Judge:
In or around Los Angeles
Fox:
Oh, okay.
Judge:
But since Ive been talking about Carson, perhaps well just say in California?
Fox:
Sure. If it helps at all, Carson is a suburb of Los Angeles.
Judge:
The jury might not know that.
Fox:
Right.
Judge:
All right. Thank you.
Fox:
And finally paragraphs 141 and 142 again say "while they were transported to the Packaging Depot" or while they were in, etc. And thats all.
Judge:
Sorry, whats your issue with those?
Fox:
Oh, they say "while they were transported to Packaging Depot" again, there the suggestion from that would be that they were actually transported --
Judge:
I see.
Fox:
-- which would mean one --
Judge:
But if we split the issues --
Fox:
Right.
Judge:
All right.
Fox:
And I apologize for being so picky.
Judge:
This is very useful, a very useful process. Mr. Myhre, anything further? We can certainly come back to it. Its not now or never.
Myhre:
I wouldnt mind having a chance to reflect on the issue of putting threatening conduct to the jury.
Judge:
All right.
Myhre:
I might -- as we reviewed it again, I did just note one thing, though, in paragraph 87, the threat must be intended or that "the threat was intended to be taken seriously," the case law suggest that its "intended to intimidate or to be taken seriously," and I think those are -- thats an important distinction or an important area.
Judge:
Well, this paragraph is trying to talk about how much conduct does there have to be in order for it to amount to threatening conduct, and it says it doesnt have to be repeated, but it has to be meaningful, essentially, taken seriously, or intended to be taken seriously.
The earlier discussion has tried to talk about the character of threatening conduct used as a tool of intimidation, designed to instill a sense of fear. I dont disagree with the notion that the threat as defined in the case law to -- as being something intended to intimidate or to be taken -- well, to be taken seriously speaks of the magnitude, not the character of what is said or done.
If your concern is that the idea of the threat being an intimidating act or words, doesnt come through, there may be a better way or expressing that in this draft or somewhere else. Im not sure that it goes there, but Ill think about it and perhaps you would, too. Mr. Myhre.
We should break for lunch. Weve got Ms. Clancys application at 2:00, and after that we can certainly come back to the draft, and therell be further opportunities clearly, I would think, Ill be making revisions after the closing addresses are done, but the more we can get settled ahead of time, the better.
All right. Thank you.
Clerk:
Order in court. This court stands adjourned until two oclock p.m.
(PROCEEDINGS ADJOURNED FOR NOON RECESS)
(PROCEEDINGS RECONVENED)
Submissions of Natalie Clancy from CBC News
Judge:
All right. Are we dealing with Ms. Clancys application now?
Fox:
I believe so, yes.
Judge:
Is there anything else that should be dealt with first?
Myhre:
I do have a response to that one issue on the charge so whatever order Your Ladyship wants to do this.
Judge:
Perhaps while thats in everyones minds before we switch gears.
Myhre:
My Lady, my comments are very simple. After reflecting on it and discussing it with one of my colleagues, it does seem to me that both modes should be left in the charge simply because we could -- the jury should have both modes because they dont have to pick one. There is also, you may recall, I mentioned that --
Judge:
Because they dont -- Im sorry? I missed that?
Myhre:
Just because some of them could say, well, look, this is a lot of communication, some others might say, well, look, thats not really that much, I mean, if they were in a custody dispute, but that same person might perceive some of it to be threatening conduct.
Judge:
I see.
Myhre:
There is also the issue of -- I think the only one that couldnt be said to be repeated communication would be posting pictures of Sage on the website and thats debatable, I think, because of Mr. Fox referring her to the website, but in any event...
Judge:
All right. Thank you. So Ill leave both modes and, Mr. Fox, there were a number of comments you had that related to the second mode, and the description of it, and Ill make the changes that -- to that section that I indicated I was going to make.
Fox:
Thank you.
Judge:
Anything else on the charge at this time? As I said, its not now or never. You can continue to make comments as things occur to you. The important thing is to get it right, and make sure its balanced and fair.
Fox:
There is nothing further from me, My Lady.
Judge:
All right. Thank you. Ms. Clancys application then.
Clancy:
My Lady, Ive put out our arguments in a -- in a letter to you, in a brief. We rely on several cases, including the Dagenais case and the Dagenais test.
Judge:
Right. Youre -- youre Ms. Clancy, I take it?
Clancy:
Im Ms. Clancy. I should have introduced myself
Judge:
All right.
Clancy:
With the Canadian Broadcasting --
Judge:
Mr. Myhre is going to be responding and Mr. Fox, as well. I have a notice of application which has some legal principles attached. Its not very specific about what it is youre seeking. In one area it says "access to exhibits, including any video, photographs, audio and documents" at the end of the trial, and in the other it says, the other area it seems to confine itself to firearms, any photographs or video involving the firearms.
SUBMISSIONS RE MEDIA FOR CBC BY NATALIE CLANCY:
Clancy:
Yes. Very specifically, its standard in a case like this, and many others for us to seek access to exhibits to examine them to see them, and then chose what to photocopy. In this case, I have volumes and volumes off the website and the information already, and Ive had that since for more than a year now.
But there are aspects of this case that are new and came out at trial, and we intend to do an explanation of this case a little after, so the photographs and video having access to electronic copies of that would be most helpful. I know in other cases weve been just granted access to exhibits to go look through them and choose what we need to make copies of for the future.
In this case, were very specifically asking for electronic copies of any photographs, particularly in relation to the ATF witness, and any other photographs in the case, and video, of course, but I dont believe theres been video.
Judge:
All right. Im still not completely understanding what youre asking for and I -- that part of the reason for that is that what youre saying is a little bit inconsistent, as I understand it, with what Ms. Brend said this morning, which was that you were seeking access to all the exhibits except -- I pointed out to her that there are a few that relate to juror issues that were sealed, and she said not interested in those.
Clancy:
We have no interest in that, just evidence that the --
Judge:
All right.
Clancy:
-- jury would have heard that would have helped them make their decision. In the past in cases like this weve gone downstairs and theyve let us have access to a box, and we have taken photographs of things we wanted or chose to photocopy things we wanted.
Judge:
All right.
Clancy:
In this case, theres specifically, Im aware of, photographs that were shown to the jury and ideally in this modern age getting an electronic copy is certainly much better than a photocopy, if theres a way that Your Ladyship could order an electronic copy be shared with me, that would be ideal.
Judge:
I dont have an electronic copy, and I dont think the court has, but --
Clancy:
The Crown does.
Judge:
Well, thats the Crown.
Clancy:
If its a paper copy that I could digitally see and take a photo of that, would suffice.
Judge:
So youre interested in the books of material that are taken from the website thats involved in this case?
Clancy:
No, I would be interested in the book of material that Mr. Fox provided where he has provided other parts of emails that werent in the blue book as part of his defence. There was a second black binder that I didnt have, that he submitted to the court that had different parts of -- of what was posted online, so that would be, if I had access to it, I would choose to photocopy that document.
The big binder I wouldnt because I already have that material.
Judge:
All right. So, youre not seeking the Crown book of excerpts from the website.
Clancy:
I --
Judge:
Exhibit 2 --
Clancy:
-- I think what Ms. Brend was trying to say is ideally we would like access to all exhibits so we could go look through them, and give them back to the court, and we can select to be photocopied. Thats our ideal position, but -- and specifically we would like that and we would like to have access to electronic photo -- electronic access to photographs, if thats possible.
Judge:
So ideally you would like to see all of the exhibits except the sealed ones.
Clancy:
Yes.
Judge:
And --
Clancy:
And the opportunity to photocopy selectively as set out in my -- my brief.
Judge:
Can you show me where it says that because I just --
Clancy:
Its just theres case law that says we had -- it -- it is part of --
Judge:
No, I -- Im not getting to the point at which you support your application, but just to know what the application is.
Clancy:
What it is?
Judge:
So, can you --
Clancy:
So, if I clarify, wed like access to all exhibits, excluding anything thats sealed, and if there was a way Your Ladyship could order electronic access to photographs, that would be ideal or even okaying the Crown to provide the electronic version of photographs. A lot is missed when you try to photocopy a photograph. And they only have a black and white copier downstairs, so a lot of the meta data, a lot of the information is missed if we just photocopy it.
Judge:
I have a colour photo -- photocopier.
Clancy:
Well, when we go downstairs, and have access to exhibits and copy, they only have a --
Judge:
Oh, I see.
Clancy:
-- black one.
Judge:
I see.
Clancy:
In a recent application in December the Crown did order and we did get a coloured copy by order, by specific order in another matter.
Judge:
And are you seeking access to the audio recording of a police interview with Mr. Fox?
Clancy:
Yes.
Judge:
And Im just looking on the exhibit list to see what else there is. All right. Thats helpful, thank you, and what Id like to do next is ask each of Crown counsel and Mr. Fox what their position is concerning your application, and then well go from there. Is there somewhere Ms. Clancy can sit at the front of the courtroom?
SUBMISSIONS RE MEDIA FOR CROWN BY MR. MYHRE:
Myhre:
My Lady, I have thought about it over the last few hours, and I maintain the position I stated this morning. The Crown doesnt have any opposition to Ms. Clancy having access to any of those materials. I dont think Your Ladyship would need to go so far as ordering the Crown to provide digital copies.
The Crown wants to be sure that the court is aware of and controls the exhibits, but if Your Ladyship grants access to Ms. Clancy, Im happy to email her digital copies of those particular photographs that were in the ATF exhibit.
Judge:
All right. And have you considered what I raised earlier about the fact that the jury has not yet been asked to determine whether the body of material in the Crown book, together with some other alleged conduct, amounts to criminal harassment?
Now, I appreciate Ms. Clancy is not seeking that material in the Crown book, but she is seeking access to material in the defence book and some of that is similar material, defence binder, I should say. Have you considered that, Mr. Myhre?
Myhre:
And do I have -- Your Ladyship is wondering whether Ive thought about the fact that, you know, the Crown is saying that this, along with everything, amounts to harassment, has the Crown thought about whether promulgating that or allowing it to be further put out there would just perpetuate the harassment?
Judge:
Yes. And the court would be in effect, if it is harassment, and if the defence binder is of a similar -- has content of a similar nature, is the court somehow implicated in furthering a criminal harassment, if it releases material intended for publication? There may be a couple of ifs in there that arent accurate, but Ms. Clancy can correct me.
Myhre:
My Lady, I think those considerations are the same as the ones that went into the Crown inviting the court to lift the publication ban. Theres certainly a concern for Ms. Capuanos privacy but Ms. Capuano is content to waive that because she wanted other people to know that this sort of thing was unacceptable, and the fact is the website is out there. The website includes, and Mr. Fox can correct me if Im wrong, but it includes the defence book, everything in the defence book, as well.
Fox:
That is correct, yes.
Myhre:
And the only thing I think the media or CBC or Ms. Clancy would be doing with it would be putting that in the context of other evidence that was heard in the case, and so I dont have any concerns about perpetuating harassment by releasing the exhibits.
Judge:
Thank you. Mr. Fox?
SUBMISSIONS RE MEDIA FOR ACCUSED BY PATRICK FOX:
Fox:
I have no opposition to the request, and just as Mr. Myhre, if theres anything that I can do to assist, Id be more than happy to provide any electronic copies of any photographs or documents or anything else that she would like.
Judge:
All right. And, Mr. Fox, you said this this morning, and I want to make sure its still the case, and also Ms. Clancy is now present, are you content that she have a copy of the audio recording of your police interview?
Fox:
Yes, I am.
Judge:
All right.
Fox:
For that matter, she may have a copy of both of my RCMP interviews if she would like. There was one in 2015 and then another in 2016.
Judge:
Well, Im not sure that the other one was the subject of an exhibit.
Fox:
Right, right.
Judge:
All right. Ms. Clancy, Im content to make the order that youre seeking. I think we are going to have to go back over it a little bit more precisely so that its clear for Madam Registrar, and it might be the -- the best way of doing that might be for us to go exhibit by exhibit number.
Well, perhaps thats not necessary because the one exhibit youre not seeking access to is Exhibit 1, thats the Crown --
Clancy:
If it makes it easier, My Lady, we would like to have access to all of it. I could look through in case theres something Im missing. I have a large volume of material on this file prior to there being a court case, so if it makes it easier, we are seeking access to all. I just know thats not what Im going to be photocopying. If it makes it easier, wed like access to all of those exhibits.
Judge:
I suppose I would prefer to make the order in the most restrictive way that conforms to what youre seeking, so that it isnt automatically repeated in the case of another applicant, for instance, who may be in a different situation at a different stage of the proceedings. So I need to think ahead to that possible situation.
Clancy:
And I also should clarify Im not seeking access to these exhibits to do anything with them before this jury is sequestered. Im happy to wait until a time of your choosing, if its next week. Im not in a rush to -- to do anything with these exhibits publicly until after this case is finished. So were in absolutely no rush.
Judge:
Yes, that should certainly form part of the --
Clancy:
And I work in a unit thats mandate is to only do stories in the public interest with journalistic discretion, and I take the concerns about perpetuating any future harassment of this lady or this woman.
Judge:
Thank you. So the order Ill make and I -- Ill say this, and then if it causes any concern to any of you, you can let me know and we can revise it as necessary.
Is that there will be access in the sense of the ability to look at all of the exhibits except the sealed exhibits, and I think Im correct in saying that all of the sealed exhibits relate to matters concerning individual jurors, mostly at the jury selection, that were clearly private.
And in addition, Ms. Clancy will be permitted to make copies of -- I suppose its all of the exhibits except Exhibit 1.
And should this be confined, Mr. Myhre, and Mr. Fox, to numbered exhibits rather than lettered exhibits? The lettered exhibits have not gone and will not go to the jury, and they include things like some of the juror notes concerning jurors individual situations, they include the draft of the proposed charge that we were talking about this morning, they include a written copy of the opening instructions given to the jury at the beginning of the trial. Do you wish to see those, copies those?
Clancy:
No.
Judge:
No. All right. So well say the numbered exhibits, this order relates to numbered exhibits. And does that do it, access to all of them, ability to make copies of all of them except Exhibit 1?
Clancy:
Perhaps just a matter of when.
Judge:
Access, I would think whenever -- essentially at your convenience when the registry can conveniently accommodate you, on your assurance that therell be no publication until -- I would suggest itd be the jurys rendered a verdict --
Clancy:
Absolutely.
Judge:
-- in case theres a jury whos unable to render a verdict. Now, is any of that cause any concern, does anything need to be clarified, added, changed? Mr. Fox?
Fox:
I have no concerns.
Judge:
Mr. Myhre?
Myhre:
Me neither, My Lady.
Judge:
Madam Registrar?
Clerk:
No, Im fine, My Lady.
Judge:
Ms. Clancy?
Clancy:
Thank you, My Lady.
Judge:
All right. Thank you.
Now, Mr. Sheriff advised me that the juror will be getting medical attention this afternoon, and would telephone immediately afterwards. Im thinking that its quite likely that I may suggest that we simply put the next steps over to Monday and Tuesday because, at the very best, we could be -- if we dont do that, at the very best we would be doing closing addresses tomorrow, Thursday, and the charge on Friday morning, and as I think I said this morning, thats not an ideal time to be charging the jury and asking to start their deli -- asking them to start their deliberations.
Do you have any preliminary thoughts about that, Mr. Myhre? Well, perhaps I dont need any submissions on that now. I suggest that we stand down, hope to hear from the sheriff in an hour or so, and then we go from there.
Fox:
Go ahead.
Myhre:
My Lady, I was just going to suggest maybe I could leave my direct line with Madam Registrar and she could give me a call if we have an update on the juror.
Judge:
Yes, please.
Fox:
I just wanted to make sure that Im clear, so were suggesting that I would just stay at the courthouse and then wait to see if we hear back from --
Judge:
Yes.
Fox:
Okay.
Judge:
Yes, and then once we know what the diagnosis/prognosis is for the juror, then we can make a decision about next steps.
Fox:
Okay.
Judge:
It may become more clear what the obvious thing to do is once we know a bit more about the jurors situation.
Fox:
Okay.
Judge:
All right. Well stand down.
Clerk:
Order in court. This court stands down.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
Judge:
I understand that the juror has had medical attention and has been told that he may feel well enough and be fit enough to continue tomorrow, but that there is no way of knowing until tomorrow. So, it would have to be a case, excuse me, of wait and see until tomorrow.
Tomorrow is Thursday, so even if the juror is fit and better tomorrow, the best we would be able to do would be closing addresses tomorrow, Thursday, the charge on Friday, and we face the problem that were then charging the jury before a weekend, and a sunny one as well from the looks of it.
The other possibility is that the juror will not be better tomorrow and well be adjourning things once again, and inconveniencing the 11 who have come. It sounds as close to for sure as one can be that the juror will be better by Monday. Theres never any knowing if someone else will be ill by Monday, but Im thinking the best approach might well be to adjourn everything over to Monday. Im assuming in this that, well, perhaps I shouldnt make that assumption. Another possibility would be to have the closing on Friday, then the charge on Monday. Then theres a gap of time, the weekend, after youve each made your closing addresses and you may not wish to have the jury go away having heard your closings, and spend two full days away from the case.
Mr. Myhre?
Myhre:
Im content to proceed in the first way you suggested.
Judge:
Go till Monday?
Myhre:
Just because it provides certainty rather than everybody getting geared up for tomorrow and --
Judge:
Theres never any complete certainty because one never knows, but, Mr. Fox?
Fox:
I am open to either, though I would prefer whatever would be the least inconvenience for the jurors.
Judge:
Well, one thing to take into account, as well, is that this juror -- jury was told this would be a three-week trial.
Fox:
Right.
Judge:
And were not even at the end of week two, so its not as though were asking them to give an additional week.
Fox:
Hmm.
Judge:
They may have -- now, we did tell them earlier in the week that that they would likely be deliberating by tomorrow, but if you go back to the beginning of the trial, they were asked to be available for three weeks. So really were reverting to that timeline.
So, Im inclined to do that. We will ask the sheriffs to make 12 phone calls and let all of the jurors know that they are now asked to come on Monday morning at the usual time, please.
Fox:
And thats for the closing addresses?
Judge:
Closing addresses and then deliberations would be Tuesday. Thank you for raising that. Theyll want to know that. And Im sure the sheriffs will as well.
Is there anything else we need to deal with between now and Monday morning?
Myhre:
Might I just ask Mr. Fox something, My Lady?
Fox:
My Lady, when I was downstairs earlier, I was re-reading R. v. George about threatening conduct in the context of criminal harassment. Because of the uncertainty about if its supposed to be determined from the perspective of the complainant or of the accused, and what it seems to me in here is that its supposed to be evaluated from the perspective of the accused, the intention of the accused, first, and then once thats met as it being prohibited conduct, then the perspective or the subjectivity of the complainant is supposed to be taken into account. And so Im wondering if maybe we could word that into the charge when we talk about the -- the threatening conduct? Is that right or not? It makes reference to, was it in Croft [phonetic]?
My understanding of it would be that first there has to be an objective determination that the complainant intended to have that effect, that intimidating or threatening effect. Once thats determined, then you would look at whether the complainant was intimidated by it.
Myhre:
It seems to me they both need to be there and I think thats clear in the charge.
Fox:
Both? Sure, both can be there. I guess it doesnt matter which order you evaluate them in, either way they would have to determine that I intended her to be threatened or intimidated.
Judge:
All right. Thank you. I will be -- in fact, Ive started revising that portion, and I will keep in mind the concern youve just raised, Mr. Fox. Anything else?
Fox:
Not from me, My Lady.
Judge:
Mr. Myhre?
Myhre:
No, My Lady.
Fox:
Did you want to -- you didnt want to mention that about [indiscernible] just in case, I dont know, if theres a possibility it might occur?
Earlier today Mr. Lagemaat came to speak with me downstairs and there was some brief talk of the possibility of maybe him taking over the case, the remainder of the case or some of the closing arguments, but it was just a very brief mention, and so Im just bringing it to the courts attention that there is a possibility that that might occur.
Judge:
All right.
Fox:
I mean, hes certainly very familiar with the criminal -- criminal harassment aspects of the case, and the firearms charge, hes not very familiar with, but I think thats a very small part of the case, but I will certainly keep you apprised of any changes or decision making of that effect.
Judge:
If -- if -- hmm, when do you expect you would know that, Mr. Fox?
Fox:
Sorry, I couldnt say. I mean, at this point theres nothing definite anyway, and so I would say at this point most likely its not going to happen. I mean, I dont know if its conducive with his schedule or if hes really even particularly interested in it. He did express some interest, but I would need to speak with him further.
Judge:
If he is to come in as counsel, then he may see himself having a role in reviewing the charge, for instance, making submissions, further submissions on your behalf, and well, you might want to do that Thursday or Friday if --
Fox:
One thing I had --
Judge:
-- I suppose theres always Monday afternoon, isnt there?
Fox:
One thing though that I can assure both the court and Mr. Myhre of is that, if it would cause any kind of delay, then its not going to happen. So it would only happen if it wouldnt delay anything.
Judge:
Well, thank you for advising that its a possibility. And if -- if it does come to pass, then, as I think on it, we will have Monday afternoon most likely to discuss any consequence that that may have for the content of the charge or anything else. Anything else before the end of the day?
Fox:
No, My Lady.
Myhre:
No, My Lady.
Judge:
If something comes up tomorrow or Friday that needs to be addressed, kindly contact the scheduling and well arrange some sort of hearing.
Fox:
I would have no idea how to do that.
Myhre:
You can contact Mr. Lagemaat to contact me or --
Fox:
Mm-hmm.
Myhre:
-- you could send you me fax [indiscernible voice low].
Fox:
Okay. I dont anticipate anything will come up though in the -- on my end.
Judge:
All right. Thank you.
Fox:
Thank you, My Lady.
Clerk:
Order in court stands adjourned to Monday morning at ten oclock a.m.
Transcriber: C. Banks