Transcript of Trial Proceedings (2019-08-13)
Synopsis
This is the second day of trial in the matter of Patrick Fox leaving BC without permission.
Testimony of RCMP Constable Tyler Hawkins
It starts with me continuing my cross-examination of RCMP Constable Tyler Hawkins about his efforts to obtain the video footage of me at the Douglas port of entry from CBSA. Prior to the trial there was nothing disclosed to me indicating the RCMP made any attempt to obtain such footage - footage which would clearly and unquestionably prove my innocence. However, now Hawkins claimed to have sent an email to CBSA on 2019-05-07, which would be about a week after CBSA's policy would have required them to destroy the footage p3l39-p4l40.
Testimony of US CBP Officer Geoffrey Obrist
Next, the prosecutor Bernie Wolfe called US CBP Officer Geoffrey Obrist, who interrogated me after I turned myself in to CBP on the US side, to testify. It was established during my cross-examination that he had no knowledge of my interaction with CBSA prior to me turning myself in to CBP and, therefore, no information relevant to the charges.
Testimony of RCMP Constable Kirsty Brown
The prosecutor then called RCMP Constable Kirsty Brown, who was the lead investigator on the case. During direct-examination, Brown testified that CBSA had informed her that there was no documented interaction between myself and CBSA on the day in question p37l29-p39l29.
Then, on cross, I questioned Brown about why the RCMP waited so long to request the video footage from CBSA. She was very evasive. I eventually established that as of 2019-04-04 she had reason to believe I had turned myself in to CBSA, yet they still waited until 2019-05-07 to request the video footage p44l35-p45l34; p46l42-p50l42.
At the time of Brown's testimony, I wasn't aware, but I later obtained CBSA's policies regarding overt video footage and discovered the policy required such video footage to be deleted between 30 to 45 days after it was made - unless a formal request is made for it, in which case it must be kept for at least two years CBSA Directives on the Overt Use of Audio-Video Monitoring and Recording Technology, paragraphs 33-35. Based on that, it is my belief the RCMP deliberately waited 45 days before requesting the video knowing by that time it would have been destroyed.
Testimony of Probation Officer Abeed Bhimji
And finally, Wolfe called my Probation Officer Abeed Bhimji. On direct, Bhimji falsely testified that when I reported to him on 2019-03-15 I did not inform him what had happened in court the day before, and that I did not indicate I would not be reporting on the next date.
On cross, I confronted Bhimji with his own notes from the probation departments' information system (which I had obtained through freedom of information), proving that he had lied about those matters. He conceded that the notes did contradict what he had just testified about. In other words, he admitted he had just lied under oath on the witness stand p78l17-p79l7.
PDFBCSC File No. 30630
244069-5-BC
Vancouver Registry
In the Provincial Court of British Columbia
(BEFORE THE HONOURABLE JUDGE ST. PIERRE)
Vancouver, B.C.
August 13, 2019
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
(DAY 2)
(DAY 2)
244069-5-BC
Vancouver Registry
In the Provincial Court of British Columbia
(BEFORE THE HONOURABLE JUDGE ST. PIERRE)
Vancouver, B.C.
August 13, 2019
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
(DAY 2)
(DAY 2)
Crown Counsel: Bernie Wolfe
Appearing on his own behalf: Patrick Fox
INDEX
- WITNESSES FOR THE CROWN
EXHIBITS
- EXHIBIT 6: One-page print-out of email dated May 7, 2019
- EXHIBIT 7: Client Profile Report
- EXHIBIT 8: Client Log
- EXHIBIT 9: Probation order for Patrick Henry Fox
- EXHIBIT 10: Appointment reminder dated March 15, 2019, re next appointment March 19, 2019, photocopy
- EXHIBIT 9A: One double-sided page of probation order for Patrick Henry Fox which lists Conditions 1 to 9
- EXHIBIT 11: Probation Client Log notes for Patrick Henry Fox, three pages
RULINGS
- Nil
Vancouver, B.C.
August 13, 2019
Judge:
Good morning. Okay.
Wolfe:
Could I just get Constable Hawkins?
Judge:
Sure. Let's have Constable Hawkins in.
Good morning, Mr. Fox.
Fox:
Good morning.
Judge:
Okay. So we have Constable Hawkins coming back in.
Clerk:
Your Honour, would you like me to re-swear him or --
Judge:
I'll just remind him from yesterday.
TYLER HAWKINS
recalled, warned.
Judge:
Thanks, Constable.
Wolfe:
Wolfe, initial B., for the Provincial Crown, Your Honour, recalling the Fox trial. Just for the record, we -- we all understand that Constable Hawkins was excused from yesterday. He's still under cross-examination by Mr. Fox, and we were awaiting an update regarding a communication that may have been sent back in May, I believe it was, regarding the CCTV. That's how I recall yesterday.
Judge:
Thank you.
Wolfe:
Yes.
Judge:
And, Constable Hawkins, just as a -- just a reminder from yesterday, you'll still under your affirmation or was it an oath? Affirmation. You're under the affirmation from yesterday.
Hawkins:
Yeah.
Judge:
Okay, yeah. Mr. Fox.
Fox:
I'm sorry, before I begin, may I borrow a pen?
Judge:
Sure.
Fox:
And, also, may I have just a moment to make a couple of notes. I've been in a holding cell since way early this morning, and I wanted to write this down, but I can't have a pen in holding cells.
Judge:
Okay.
Fox:
Sorry about this.
CROSS-EXAMINATION BY THE ACCUSED, CONTINUING:
Fox:
Good morning, Constable Hawkins.
Hawkins:
Good morning.
Fox:
So further to what we were talking about yesterday with respect to a CCTV video and requesting it from CBSA, were you able to find an email or any records of when that request would have been submitted to them?
Hawkins:
Yes, I did.
Fox:
Great. Was that by email or telephone or --
Hawkins:
By email.
Fox:
And since a copy of that was never disclosed or provided to me and presumably not to the Crown either, would it be possible to obtain that or…
Wolfe:
Yes, I'll stand here. I got a copy this morning, the first time this morning.
Judge:
Okay. Did you make copies for Mr. Fox?
Wolfe:
Yeah, I can give him that actually.
Hawkins:
I've provided some extra copies in case --
Judge:
Okay.
Hawkins:
-- just as well.
Wolfe:
All right.
Hawkins:
I've got three there. I need one myself or do you want me to give all four to you?
Wolfe:
So that's in front of the witness and Mr. Fox. I reckon you should have a copy.
Judge:
Yes, okay, thank you.
Wolfe:
Maybe that will be entered as an exhibit, depending on what flows from it. I also have other emails that flow from that. We'll keep that separate. I just got those this morning too.
Fox:
Oh. I would certainly hope to be able to see those. I don't know. There might be questions that come from that.
Wolfe:
That's what's here. Here's -- if you'll just bear with me one moment, please, Your Honour.
Fox:
If I may have, please, just a few moments to review these before I continue --
Judge:
Sure.
Fox:
-- my questioning.
Judge:
All right. It's just the one, is it? Just the one in there?
Fox:
Well, there's the one here and then there was some follow up --
Judge:
Okay, well, I only --
Fox:
-- I guess some responses.
Judge:
You've only handed up one email.
Hawkins:
I only have one.
Judge:
Yeah.
Wolfe:
So one is before the witness, the other is just disclosure at this point.
Judge:
Okay. All right. If you want, Mr. Fox, you can have a few minutes. Do you want us to stand down for a few minutes to have a read of those? I don't want to rush you. You just received these now, did you?
Fox:
That is correct. I just --
Judge:
You requested this stuff, did you?
Fox:
I just received them now. I'm just reluctant to ask to stand down because then the whole process of going all the way downstairs and -- would that be necessary or --
Sheriff:
If it's just a few minutes, he could stay here.
Judge:
We could stay here if it's just a few minutes. I'll just wait out the back, and you can have a few minutes to review it. Okay?
Fox:
Okay, thank you. I appreciate that.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
TYLER HAWKINS
recalled.
Wolfe:
Wolfe, initial B., for the Provincial Crown. Recalling the Fox matter now, Your Honour.
Judge:
Okay, thank you. Mr. Fox, did you have enough time?
Fox:
Thank you, yes.
Judge:
Okay, thanks.
CROSS-EXAMINATION BY THE ACCUSED, CONTINUING:
Fox:
Okay, so Constable Hawkins, the date on this email is May 7th, 2019; is that correct?
Hawkins:
Yes, it is.
Fox:
And am I to understand that that is the first time that the RCMP has requested video footage from CBSA with respect to my presence at the border on March 15th, 2019?
Hawkins:
I believe so. This is an email sent from me.
Fox:
Right. And you started working on this case you said, I believe, March 20th?
Hawkins:
Yes.
Fox:
Can I ask why it was that you waited so long to request this video from CBSA yet you requested video from the U.S. authorities the day after you took -- you started working on this case on March 21st?
Hawkins:
Well, we were investigating the -- the breach of probation conditions --
Fox:
Right.
Hawkins:
-- for you to not be within a hundred metres and for you not to leave the province. So our -- my efforts, our efforts in the investigation were focused on you being at that border.
Fox:
Okay. I'm going to come back to this in a bit, but I want to ask you a couple of other questions about some other aspects of the investigation. Did you in the course of your investigation go to the Yukon homeless shelter in --
Hawkins:
Yes.
Fox:
-- Vancouver?
Hawkins:
Yes.
Fox:
Did you speak with the staff there?
Hawkins:
Yes, I did.
Fox:
Did you ask them if they have any CCTV video footage?
Hawkins:
Yes, I did.
Fox:
And do you remember what the date of that was?
Hawkins:
Your Honour, I -- may I still refer to my --
Judge:
Sure.
Hawkins:
-- notes?
Judge:
And Yukon homeless shelter, is that in Vancouver?
Fox:
Yes, it is. It's on Yukon Street. Yukon and 2nd. 2088 is the address.
Hawkins:
March 21st.
Fox:
Okay. And it's my understanding the Yukon doesn't have video cameras, and so you weren't able to get anything from them, but that's not really relevant to what I'm questioning right now.
Fox:
In the course of your investigation, did you have an opportunity to speak with a probation officer by the name of I believe it's Abeed Bhimji?
Hawkins:
I believe, yeah, our team did. I don't know if I spoke with him directly.
Fox:
Okay. Would you mind checking your notes to -- to see if it was you or someone else? Because if it was someone else, then I'm not sure I can ask these questions of you.
Judge:
And if you know if it's in his notes somewhere, you can direct him to that, if you know.
Fox:
Unfortunately I don't off the top of my head.
Judge:
Okay.
Fox:
It would be in the disclosure but I don't have that.
Judge:
All right.
Hawkins:
In my notes, I have a probation officer for -- for yourself with a phone number, and in brackets I have [as read in]:
Report every four days. 19th did not report.
I don't have in my notes that -- that I actually spoke with them, with the person, and I can't see it in my narrative that it was actually me who made the phone call or subsequent emails.
Fox:
Well, this is unfortunate because there is some information in the narrative, and I had just assumed that you would have been the one that --
Hawkins:
I have the narrative here, as well, but I can't -- I don't see where it directly involves myself as the person who contacted.
Judge:
Well, Mr. Fox, you don't have your disclosure laptop with you; is that right?
Fox:
That's correct. I'm not allowed to take it from the jail to here.
Judge:
That doesn't make any sense to me. I mean, that's your -- that's your disclosure in this matter.
How is Mr. Fox supposed to defend himself, Mr. Wolfe, without his disclosure being on his person at his trial?
Fox:
I believe the expectation is that I would take copious amounts of handwritten notes from it. I mean --
Judge:
But why though? If you're -- if you're entitled to the laptop at the institution, why can't you have it here?
Wolfe:
So there was an order and an agreement with Mr. Fox about his use of the laptop.
Judge:
I'm assuming this laptop doesn't have Wi-Fi capability?
Fox:
It doesn't.
Wolfe:
No.
Judge:
Well, then, what's the problem with him having it here?
Wolfe:
Do you really want me to address that right now?
Judge:
Well, yes. I'm asking the question.
Wolfe:
Sure. So just recently, I was advised yesterday that there are two laptops. When there -- when there -- when there's information -- additional information for disclosure, it's put on a laptop, it's delivered, and then the one that he has is taken back. So they're two at play and one is, so to speak, swapped out.
Judge:
Yeah.
Wolfe:
So there was a recent swap done because there was additional information provided to Mr. Fox, and I learned yesterday afternoon that when the I.T. person retrieved the one Mr. Fox had, it was missing a hard drive. It was tampered with. The hard drive was missing from that laptop.
Judge:
The hard drive was missing from the laptop.
Wolfe:
That's exactly what I said. And that's actually contrary to your order, because your order said the laptop is not to be tampered with. There is no hard drive in one of the laptops.
So now I want to come back and address your point directly. You would be -- and I'd like the witness to stand out.
Judge:
All right, Constable, you heard the gentleman. We'll call you back in when we -- when we need you, okay? Thank you.
(WITNESS STOOD DOWN)
Wolfe:
So I get the point pretty quickly about, like, where is his mound of paper 'cause I've got two binders here, right? I've got a trial binder; he's got nothing.
Judge:
Yeah.
Wolfe:
I get that point. A law student would get that. A guy off the street would get that.
The issue really flows from the -- Mr. -- and I say this not maliciously, just as a matter of fact. The index offence included that harassment business where there was a website created and disclosure had been uploaded, and it was problematic, and -- when -- when Mr. Fox was appealing his matter, there was an agreement he entered into with respect to the use of his materials for the purpose of his appeal. And that -- that -- that use agreement regarding the reports served as a template for the agreement which he signed, witnessed by Constable Brown when she first delivered or had delivered the laptop.
Judge:
Okay. Here's --
Wolfe:
But then --
Judge:
-- my question.
Wolfe:
But I need to lay this down on the record for any appeal purpose.
Judge:
Well, you can if you want. But my simple question is, why can't he -- if the Crown come into court in the morning with the laptop, give it to Mr. Fox for the day --
Wolfe:
Yeah.
Judge:
-- and take it back at the end of the day?
Wolfe:
Sure. Okay, I can try and arrange that.
Judge:
Just so he has some means of accessing --
Wolfe:
Sure.
Judge:
-- the materials that he's trying to ask questions about.
Wolfe:
Your Honour, I can call the I.T. guy and see if he can run it down this morning.
Judge:
Okay. Do you want to try that?
Wolfe:
Yeah, absolutely.
Judge:
Okay. Will that help you, Mr. Fox?
Fox:
I think that would help immensely, yes.
Judge:
Okay.
Fox:
Thank you.
Judge:
Let's try that.
Wolfe:
So do you want me to try to make that call now?
Judge:
Sure. Why don't you make the call, and then just give me a shout back when -- I just -- do you want to proceed until the break, Mr. Fox, and then try and get that? Or would that help you now? I suppose that would help you now because you asked some questions about -- you're seeming -- it seems to me you're remembering or recalling some -- some entry into a narrative or some part of the disclosure that the witness isn't -- isn't remembering and you're trying to ask some questions about that. And it would be helpful for you, I guess, to be able to point him to the area.
Fox:
Yes. That is fair and reasonable. I had -- I had assumed that the particular things that I had seen in the disclosure were written by Constable Hawkins.
Judge:
'Cause he's the lead investigator.
Fox:
Right. And, so I was assuming that he was the one that had spoken with -- with Mr. Bhimji.
Judge:
Okay. All right. Let's try to do that. Maybe -- it's in the office, I guess, is it, of the Crown?
Wolfe:
No, it's got to come out of Hornby. I'll have to get somebody to bring it down here.
Judge:
Oh, it's at Hornby.
Wolfe:
Yeah.
Judge:
Oh. Do you want to try to get that today, Mr. Fox?
Fox:
Whatever would be best for the court and the Crown.
Judge:
We can stand down. I mean, I want you to be able to effectively defend yourself.
Wolfe:
So -- so I think the least I can do at this point is make a call or send --
Judge:
Make the call --
Wolfe:
-- an email and see --
Judge:
-- and see what -- see what their answer is.
Wolfe:
Yeah.
Judge:
Well, let's do that, and then we'll just -- just call me back when you have an answer from him. Okay. Thanks.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
Judge:
Okay. So you've managed to photocopy the thing, have you?
Wolfe:
I have. Wolfe, initial B., for the Provincial Crown, Your Honour. Recalling the Fox matter. On the desk --
Judge:
Mr. Fox is here.
Wolfe:
On the desk before Mr. Fox is a hard copy of the disclosure that was on the laptop.
Judge:
Okay.
Wolfe:
I put on the record that I have asked the I.T. person who has been in charge of the disclosure laptop to make another one that I can record tomorrow which I hope to be able to bring in tomorrow morning, and then it will be a readonly device where --
Judge:
Right.
Wolfe:
-- Mr. Fox can electronically access the disclosure, and I hope it will be a replication of the disclosure laptop setup with the hyperlinks and that kind of thing. Okay.
Judge:
Okay. And, this is the hard copy that's just been --
Wolfe:
That's right.
Judge:
-- copied.
Wolfe:
And if I may just help Mr. Fox here for a second. Mr. Fox can see that there's the initial package; it's written initial. And, then, the supplementals have been labelled accordingly, supplemental two four three seven.
Fox:
Sure.
Wolfe:
Thank you very much.
Hawkins:
Thank you.
Judge:
Okay. And, then, they're -- they are stapled right now.
Wolfe:
Well, they are and I --
Judge:
Yeah, okay.
Wolfe:
-- I spoke with Mr. Sherriff about that, and I'm -- I think we're -- I can't speak for Mr. Sherriff, but I'm content that -- they were stapled so that the order --
Judge:
Sure.
Wolfe:
-- of the disclosure wasn't lost. If he needs to take them down to the cells, we'll pull the staples out.
Judge:
Okay.
Wolfe:
Okay.
Judge:
All right. Fair enough. Okay, thanks.
Wolfe:
So can we bring the witness in and we can --
Judge:
Sure.
Wolfe:
-- resume this.
Judge:
Mr. Fox, do you need a moment, or are you okay?
Fox:
May I have just --
Judge:
Sure.
Fox:
-- one moment. I do see the references in here to statements from the probation officer Abeed Bhimji, but it doesn't so far give any indication of who he made those statements to. So I was hoping that that would be somewhere. See there's no indication, and here's the narrative where there's some various statements from Bhimji, but, again, no indication of who he was speaking to.
Wolfe:
Well, it's open to Mr. Fox to put that in front of a witness and ask the witness whether or not he or she wrote that.
Judge:
Sure.
Fox:
Okay. Sure.
Judge:
Let's have Tyler Hawkins back in, please.
TYLER HAWKINS
recalled.
Judge:
Thanks, Constable, for that break. We've managed to make a hard copy, in any event. I think Mr. Fox may be able to point you to some areas.
Hawkins:
Okay.
CROSS-EXAMINATION BY THE ACCUSED, CONTINUING:
Fox:
Hello again, and again, I sincerely apologize for how long this is taking. I know that you probably have much more critical things to deal with.
The witness, though, wouldn't have a copy of this disclosure material. How shall I bring this to his attention?
Judge:
The -- is this -- is it a -- is it the narrative?
Fox:
Yes.
Judge:
He may have a copy of the narrative. What page do you want to refer him to?
Fox:
Well, it would be -- it says page 1 of 1, but it's Report to Crown counsel narratives.
Fox:
Constable Hawkins, I have this Report to Crown counsel. It says Narratives at the top, and I'm told this is a synopsis of a -- well, it's obviously not the entire report. But there are references in here to statements made by or interactions with a probation officer Abeed Bhimji.
Oh, and I -- it says at the top here "received date 21 March 2019." Unfortunately, it doesn't say in this document anywhere, it doesn't say who it was that authored this narrative, and that's what I'm trying to determine, if that would have been you or some other officer.
Hawkins:
This narrative author that I have from the copy printed off from PRIME has Kirsty Brown as the author.
Fox:
Okay. And what you have there, does that pertain to some interactions between her and Abeed Bhimji? If so, then I would have to address my questions to her when she testifies.
Hawkins:
I have a on March 20th, 2019, contact with Community Corrections.
Fox:
Yes. That would be the probation department.
Hawkins:
Okay.
Judge:
Does that refer to your activities, Constable, or Constable Brown?
Hawkins:
It has Constable Brown's name in here --
Judge:
Okay.
Hawkins:
-- as -- as confirming certain things.
Judge:
Okay.
Hawkins:
I don't see my name directly in here.
Fox:
Okay. And I see -- oh. Well, I see there's another Report to Crown counsel narratives in this disclosure package farther in. This one at the end says [as read in]:
Constable Kirsty Brown slash Constable Tyler Hawkins.
Hawkins:
Which one?
Judge:
Is there page numbers --
Hawkins:
Or, sorry, what page, yeah.
Judge:
-- on there, Mr. Fox?
Fox:
The page number for the Report to Crown counsel or the page number for the entire packet? Because there's actually two?
Judge:
Well, we're just trying --
Wolfe:
The Report to Crown counsel narrative --
Judge:
-- we're just trying to find a reference number for it so you could point the witness to the same page as you're on.
Fox:
You might know better.
Fox:
Okay. I'm looking at a document that says that it's 17 pages, and the heading at the top says, "Report to Crown counsel." On the next line it says, "Narratives."
Judge:
Seventeen pages?
Fox:
Yeah.
Hawkins:
Mine's -- mine's 11. Can you narrow it down like a sentence and I can try and find the sentence in here?
Fox:
Well, sure, the first sentence right after where it says "synopsis," then "submission one received dates" and it has the date. [As read in]:
On March 13th, 2019, Burnaby, Royal Canadian Mounted Police, RCMP received information… .
Judge:
That's 13.
Hawkins:
You might have -- you might have a synopsis of the file.
Fox:
Yes, yes, it does say synopsis at the top here.
Judge:
Do you have that?
Hawkins:
No, I just have -- I have a narrative which is just the -- like an investigative detailed log of what this file is about.
Fox:
The document that you're referring to that you have, is it what would generally be called something like an incident report or a --
Hawkins:
This right here?
Fox:
-- G.O. report?
Hawkins:
So this is just the narrative. This is what gets -- it's a narrative text hard copy is what it's called.
Fox:
Right.
Hawkins:
It would be submitted. It would be on the -- on the electronic -- the PRIME file submitted. This is what was printed off.
Fox:
Okay.
Hawkins:
I think you're referring to a synopsis which is like a blurb about --
Fox:
Right.
Hawkins:
-- the file in general, I think.
Fox:
But nonetheless, I think at this point it seems pretty clear that you're probably not the one that was speaking with Mr. Bhimji, because I think that by now you would have remembered. It has only been five months and we've gone through all of this, and you have no recollection of it then…
Hawkins:
Well, I think you asked me earlier if I had notes about it, and I have -- I did say I do have -- in my notes I have "probation officer, bracket, Fox," a phone number, and then "report every four days, 19th did not report." That's what I have. I can't tell from this, Mr. Fox, if I was the one who actually spoke or -- or telephoned the probation officer. I can't tell.
Fox:
Right.
Hawkins:
And looking at the narrative, I can't tell from that either.
Fox:
Right. But I would think that your memory should be sufficient at this stage in your life that you would remember speaking with this particular individual just five months ago. The fact that you don't suggests to me that you probably weren't the one that was speaking with him.
Hawkins:
Okay.
Fox:
So I'll save those questions then for Constable Brown when she testifies. So, then, I had -- and I'm almost finished here. I have literally just two or three more questions. I understand that you were monitoring the interview that I had with Constable Potts; is that correct?
Hawkins:
Yes.
Fox:
When you say monitoring, can you hear the audio?
Hawkins:
Yes, I can.
Fox:
Wonderful. In that interview that I gave with Constable Potts, did I, to the best of your recollection, did I state --
Judge:
Just before you answer, we'll just -- we'll hear the question --
Hawkins:
Sure.
Judge:
-- but don't answer it yet until we determine whether it's an appropriate question.
Fox:
Did I state on -- whether on March 15th, 2019, I left Canada voluntarily or was removed by CBSA?
Judge:
Yeah, just hang on.
Wolfe:
I do object to that. I think it's at best a --a prior inconsistent statement of the accused or oath helping of the accused. We know he -- this kind of evidence cannot be elicited from a witness. If the accused wishes to allege the fact or the contents of what's implied in the question, he or she really has to get in the witness box to do that. This is not receivable like this.
Judge:
Yes, okay. Mr. Fox, this kind of question is not normally admissible, and it's because -- it's because what's attempt -- being attempted to do is get in your statement that may be exculpatory or it may be explaining something through another witness. The general rule is that in order to do that, in order to give your side of the story, you've got to take the stand in giving your --
Fox:
Right, right.
Judge:
-- side of the story. So that's what the -- and it's only if the Crown is -- would be alleging that, you know, that you didn't -- this is you just made up the story recently or something like that --
Fox:
Right.
Judge:
-- that kind of evidence may be relevant. But it's not -- it's not normally admissible at this stage.
Fox:
Okay. I would like to point out though that the Crown does intend to submit that entire statement, right?
Wolfe:
Yes. As I said at the outset --
Fox:
So --
Wolfe:
-- I will be tendering your --
Fox:
Right.
Wolfe:
-- statement, correct.
Judge:
Oh. You'll be seeking to have that statement admitted.
Fox:
Oh, yeah, and I would have no objection to that. I mean, I'm -- I intend to testify anyway so…
Judge:
Okay. Well, if it's -- if that's the case, then we'll hear from it later -- we'll hear about it later, I guess.
Fox:
Okay.
Fox:
On April 4th, you had attended at Peace Arch border crossing, correct, to take custody of me?
Hawkins:
Yes.
Fox:
Were there any CBSA officers present at that time?
Hawkins:
Yes, I believe there was.
Fox:
Did any of those CBSA officers or did you hear any of those CBSA officers make any references to or comments about me -- how was this phrased here? -- about me stopping in or reporting in to CBSA on March 15th prior to going back to the United States?
Hawkins:
Sorry, can you -- can you say that again?
Fox:
Sorry, let he rephrase it perhaps. Okay. When you were at the Peace Arch border crossing on April 4th to take custody of me, and there were some other CBSA officers present that were around at that time, and they were speaking, did you happen to hear any of those CBSA officers make any comments or statements about me reporting in or interacting with CBSA on March 15th?
Hawkins:
No.
Wolfe:
So before the witness answers, the technical objection is that it's eliciting hearsay. Hearsay sometimes is receivable if it goes towards the state of mind of a witness who hears something and it causes him to take a course of action. It's receivable in that sense. It's also receivable for the --
Judge:
Mr. Wolfe, if you have an objection --
Wolfe:
My objection is that it's hearsay --
Judge:
Yeah.
Wolfe:
-- but I'm trying to explain myself.
Judge:
No. Yeah, so the hearsay -- statements made by another third party you're trying to elicit through this -- this witness is normally inadmissible, Mr. Fox, but it can be admissible to explain, for instance, any actions that Constable Hawkins may have -- may have engaged in after that or --
Fox:
Well --
Judge:
-- lines of inference.
Fox:
-- may I explain what it is that I'm --
Judge:
Sure.
Fox:
-- getting at with it here then? I'm wondering why if on April 4th the CBSA had stated in the presence of Constable Hawkins and Constable Brown that I had interacted with CBSA on -- on March 15th, why they still did not request any video footage until May 7th. They still waited --
Judge:
Okay.
Fox:
-- another month before they --
Judge:
You'll probably get the answer. Just not -- you don't need the hearsay to -- to ask that question.
I mean, your understanding is, Constable Hawkins, that March -- March 15th was the -- was the day that Mr. Fox had gone to the border. You understood that?
Hawkins:
Yeah.
Judge:
And I guess the question is, if that was the case, why wasn't any CCTV video from that date requested from the CBSA office?
Fox:
Yes, why was it not requested on or about April 4th when they took custody of me.
Judge:
Okay, all right. Do you know the answer to that question?
Hawkins:
Yes, I believe I -- I think I addressed this question earlier, but I'll --
Judge:
Go ahead.
Hawkins:
-- I'll try it again. So our investigation at the time was investigating the -- the two counts of breach, one being the hundred metres from the U.S. border and the other being not to leave the Province of B.C. So at that time our efforts were focused on trying to obtain CCTV of yourself at the Blaine primary so while inside the U.S. border.
Judge:
Your efforts were getting the U.S.-side video?
Hawkins:
Because that would constitute the breach.
Judge:
Okay. So basically your answer is you didn't think that was relevant to the --
Hawkins:
Yes, Your Honour.
Judge:
-- investigation that you were doing?
Hawkins:
Yes, Your Honour.
Fox:
Which is why I was bringing up the CBSA officers stating in their presence that I had interacted with CBSA on March 15th and that this occurred on April 4th. This was just brought to my attention this morning. This is one of the emails that Mr. Wolfe had provided to me.
Is it -- it would seem to me that if the RCMP was at the border and the CBSA is standing next to them, and the CBSA says that I interacted with them on the date that I left the country, and this occurs on April 4th, but then they still waited another month before they requested any video, by the time they requested it, the video had been destroyed. I mean --
Judge:
Well, the officer --
Fox:
-- I'm having trouble --
Judge:
I think the gist of the officer's answer is that they were investigating a leaving-the-country breach --
Fox:
Right.
Judge:
-- and that the relevant information with respect to that breach would be on the -- outside of the country, the U.S. side, so that's where they were focusing their efforts. I think that's the gist of your answer.
Hawkins:
Yeah.
Fox:
Okay. I don't believe I have any further questions. Thank you.
Judge:
Anything arising from that, Mr. Wolfe?
Wolfe:
I don't think so, Your Honour.
Judge:
Okay. All right, Constable Hawkins, thanks for your attendance and you are free.
(WITNESS EXCUSED)
Judge:
Now, there's a document that was referred to, this email dated May 7th, 2019.
Wolfe:
My position is it should be entered as an exhibit --
Judge:
Yes.
Wolfe:
-- because I can anticipate other Crown or Mr. Fox making use of that in the future.
Judge:
Okay, let's -- let's -- let's enter that as the next exhibit, then, on the trial proper which I think is six.
Clerk:
Correct.
Judge:
And is this -- the one I have in my mind, is that the copy that you wanted to --
Wolfe:
I thought I gave up enough.
Judge:
Well, I think -- I think Constable Hawkins has the exhibit copy. Okay, I'll keep this one as a judge's copy then. Exhibit 6.
Wolfe:
So if I may, I'd like to call my next witness, please.
Judge:
Sure. Constable Hawkins, thanks.
Wolfe:
Could I have Officer Geoffrey Obrist paged, please.
Judge:
Obrist.
Wolfe:
Obrist.
Clerk:
The last name?
Wolfe:
Obrist.
Clerk:
Obrist.
Judge:
O-b-r-i-s-t?
Wolfe:
That's it.
Fox:
Are you anticipating that Brown will be testifying?
Wolfe:
Oh, yeah.
Fox:
When, tomorrow?
Wolfe:
No, I hope today actually.
Fox:
Okay.
Wolfe:
This witness affirms.
Judge:
Okay, thanks. Come on up. Thanks, is it Constable?
Wolfe:
Officer.
Judge:
Officer, thanks.
GEOFFREY OBRIST
a witness called for the Crown, affirmed.
Clerk:
Please state your full name, spell your last name and give your badge number for the record.
Obrist:
Geoffrey Dean Obrist, O-b as in boy-r-i-s-t.
Judge:
Thank you, Officer. You can have a seat if it's more comfortable for you.
Obrist:
Thank you, Your Honour.
Judge:
Keep your voice up though because that microphone doesn't amplify, okay?
Obrist:
Okay.
Judge:
All right, thanks.
Obrist:
And did you need the badge number still? It's CAR 19006.
EXAMINATION IN CHIEF BY MR. WOLFE:
Wolfe:
Officer Obrist, you're here to give evidence with respect to an event which took place on March the 15th, 2019, at or near Surrey, British Columbia. Do you recall the event that brings you into court today?
Obrist:
Yes.
Wolfe:
Now, you're commissioned as an officer; is that correct?
Obrist:
That is correct.
Wolfe:
And with what agency or force?
Obrist:
U.S. Customs and Border Protection, part of the Department of Homeland Security.
Wolfe:
How many years have you been with that agency?
Obrist:
Eleven years.
Wolfe:
What exactly do you do there? Just a brief description of your general duties as an officer --
Obrist:
So --
Wolfe:
-- of that agency?
Obrist:
-- as an officer, if you're familiar with the crossing at the border at all, you handle the traffic coming through in the little toll booth looking things, as well as you process people that are sent to secondary. So that can be anywhere from having your car searched, asking them about what kind of food they have in their car to taking care of a typical just visitor visas to handling more advanced adverse actions, for example.
Wolfe:
On March the 15th, 2019, where were you stationed?
Obrist:
I go between -- well, I work in Blaine. There are two crossings in Blaine. There's what's called the Peace Arch and then the Pacific Highway crossing where it's more commonly called the truck crossing. I kind of go back and forth, but I was originally stationed at the Pacific Highway, the truck crossing.
Wolfe:
So this may seem like an elementary question to you, but the physical plan, if we could just focus on the Peace Arch location --
Obrist:
Mm-hmm.
Wolfe:
-- for a moment. There is a building that is housed by and used by U.S. Customs and Border patrol; is that correct?
Obrist:
Customs and Border Protection.
Wolfe:
Border Protection.
Obrist:
Mm-hmm.
Wolfe:
Thank you so much. Is that correct?
Obrist:
Yes.
Wolfe:
And this is wholly situated within the United States of America?
Obrist:
Yes.
Wolfe:
The reference to Peace Arch is a reference to what?
Obrist:
The Peace Arch monument that sits in the middle of the Peace Arch State Park. It's -- I believe the park is shared between the two countries, but there's a state park on the U.S. side is where it gets its name from.
Wolfe:
And is that monument located at or near the border itself?
Obrist:
It's my understanding that is the actual border. There are I don't know what you'd call them, pillars or something that are on each side of it that are the actual line, and it is in line with them.
Wolfe:
And your physical -- your building is south of that; is that correct?
Obrist:
Yeah.
Wolfe:
When you were initially tasked with -- is it correct to call it an investigation or --
Obrist:
Inspections normally, mm-hmm.
Wolfe:
Thank you. When you were originally tasked with the inspection that took you to deal with a certain individual, were you already at the Peace Arch or were you at Pacific or where were you?
Obrist:
I was at the Pacific Highway, the other facility in Blaine.
Wolfe:
How did it come to be that you were moved from the Pacific to the Peace Arch location?
Obrist:
The officers that were the initial contact -- when it became apparent to them or suspect to them that it would be a more lengthier, detailed inspection, then they called me over to -- to help with that.
Wolfe:
Is that because you have specialized training for that kind of thing or was it a labour issue or what was it?
Obrist:
It's not a labour issue. It's -- I work in a special unit, an Admissibility Enforcement Unit, and our purpose is kind of to go where as needed to -- to handle those kinds of cases.
Wolfe:
Were you privy or given some information to help you sort of gear up for the inspection that you were about to conduct?
Obrist:
For this one specifically, I believe they told me it's just someone with a prior immigration record.
Wolfe:
So I'm presuming you -- or I understand that you drove from --
Obrist:
Mm-hmm.
Wolfe:
-- Pacific to Peace Arch; is that correct?
Obrist:
Mm-hmm.
Wolfe:
So you entered your -- your facility or plant at Peace Arch, correct?
Obrist:
Mm-hmm.
Wolfe:
And what then took place, what did you do? Were you introduced to somebody or did you just leap in and take over? How did that pan out?
Obrist:
I'm given the ID and just kind of pointed to where the subject is, and from there I just log into the computer and start doing my own queries and go from there.
Wolfe:
Okay. So you came to deal with an individual who was identified to you or became known to you by a certain name; is that correct?
Obrist:
Yeah. The ID that Mr. Fox had a B.C. driver's license of Patrick Fox. When I did my -- my systems queries as far as looking up any kind of past interactions he's had with the U.S. Immigration, it was a Richard Riess.
Judge:
What was the name?
Obrist:
Richard Rice or Riess. I'm not sure how to pronounce it.
Judge:
Okay. How do you spell it?
Obrist:
I think it's R-i-e-s-s.
Judge:
R-i-e-s-s. Have you got any notes that would -- would refresh your memory with the --
Obrist:
Yeah --
Judge:
-- exact spelling?
Obrist:
-- if I could, please.
Judge:
Okay. And you're just referring to -- this is a document you prepared, is it?
Obrist:
Yes, it is.
Wolfe:
And I can assist the court further a little bit on that.
Wolfe:
Before you look at that, Officer, just following up on His Honour's question to you, when did you prepare that document in relation to your interaction with the fellow you called Fox?
Obrist:
When do I take -- when I type this --
Wolfe:
Yeah, when did you write -- when did you write that up?
Obrist:
At the end of it.
Wolfe:
Of the same day?
Obrist:
Yes.
Wolfe:
On March 15th, 2019?
Obrist:
March 15th, yes.
Wolfe:
Were the events fresh in your memory when you recorded and made that document?
Obrist:
Yes.
Wolfe:
May the witness then refer to the notes?
Judge:
Yeah, go ahead.
Obrist:
So, yes, it's R-i-e-s-s.
Judge:
R-i-e-s-s. Okay, thank you.
Wolfe:
And this was in addition to a BCDL indicating Mr. Patrick Fox; is that correct?
Obrist:
Yes.
Wolfe:
So did you deal personally face to face, so to speak, with that person?
Obrist:
Yes.
Wolfe:
And can you describe, just focusing on me, please, can you describe in your mind's eye what Mr. Fox looked like physically?
Obrist:
Thin, white, greying I guess you'd call it, salt and pepper greying hair and a black leather coat or a black, if not leather, then leather-type.
Wolfe:
Do you recall anything about his height?
Obrist:
Average, you know, not…
Wolfe:
If you -- are you able to give us an opinion regarding how much time passed during which you interacted with Mr. Fox in this scenario? Just to make myself clear on this, was this matter just a few minutes or did it go for, like, a half day? How much time --
Obrist:
Oh, no, a couple hours.
Wolfe:
A couple hours.
Obrist:
Mm-hmm.
Wolfe:
And would you recognize Mr. Fox if you were to see him again?
Obrist:
Yes.
Wolfe:
Taking your time just canvassing the court room, do you see Mr. Fox here today?
Obrist:
Yes, on your side there.
Wolfe:
What garment is he wearing?
Obrist:
A red sweatshirt.
Judge:
I note that indication, thanks.
Wolfe:
So you -- you interacted with -- you say with Mr. Fox for a couple of hours; is that correct?
Obrist:
Yes.
Wolfe:
And when you first interacted with him, where were you and he? Were you outside of the building, inside of the building? If inside the building, where?
Obrist:
No. So we have a little interview room that we kind of -- is separated from the big, general lobby where, you know, most people just get their immigration stamps done and stuff. It has a little desk and a metal bench for -- for him to sit on, and I'd be on the other side of the desk. So it's just -- I mean, it's bigger than this, maybe double the size of this, a little office.
Wolfe:
Is this in the general building area or was it segregated?
Obrist:
Correct, mm-hmm.
Wolfe:
It was general building area. Without asking you directly what he said to you, after you interacted with Mr. Fox for a period of time, were you eliciting information from him to assist you in the inspection that you were undertaking?
Obrist:
Correct, yes, mm-hmm.
Wolfe:
Did -- can you say, please, what time of day this was when you were dealing with him?
Obrist:
Evening. As to the exact times, I would not know. In looking back, you know, before showing up here, around six o'clock is I think when -- when this all started.
Wolfe:
Okay. After interacting with Mr. Fox for a period of time, did -- did you -- was there any processing exercise that you took him through when you say -- well, you tell us. Is there any form of processing or data entry exercise that you undertook with him? Photos, prints, anything like that?
Obrist:
Yeah. So we take a statement. We -- we take fingerprints, photos, as far as making a packet of paperwork that goes with him.
Wolfe:
At the end of your inspection to -- which you say resulted from your interaction with Mr. Fox, what course of decision did you take?
Obrist:
Okay.
Wolfe:
What course of action did you take?
Obrist:
It's -- we served him with what is called an expedited removal.
Wolfe:
Forgive me here, but removal from where to where?
Obrist:
An expedited removal from the United States. In this case it would be to Canada but it's -- you know, it's to your home country or country of last residence.
Wolfe:
When you served him with -- with that, what's the next thing that he did or what's the next thing that happens? Does he just get on a bus and leave town or what takes place?
Obrist:
In this case, he was transported to the Northwest Detention Center in Tacoma, Washington, to see an immigration judge.
Wolfe:
Do you know anything about the date or time of his transport, when that commenced?
Obrist:
I don't -- I don't know the exact time, no. It would have been either that same day or the next, you know, I don't know if you'd call it morning, but, you know, one, two, three in the morning, but I don't know the exact time.
Wolfe:
You -- I heard -- I heard you refer to a Northwest Detention Center; is that correct?
Obrist:
Correct.
Wolfe:
I've heard the word detention.
Obrist:
Mm-hmm.
Wolfe:
What do you do with Mr. Fox? I mean, explain the word detention in this context. What do you do with him?
Obrist:
He's transported there. It's a holding facility for immigration purposes. From there he goes to see an immigration judge about his -- his case. So it's -- it's not a jail. It's a holding centre, but I guess you could say it's akin to that type of thing.
Wolfe:
Okay. Do you place him in a cell?
Obrist:
I -- I did not transport him personally. When I do transport people, he is handed over to their -- their employees there, their custodians.
Wolfe:
What was your last interaction with him then?
Obrist:
Serving him his papers and then until a -- until a couple of officers are made available to transport, he's held in a little detention cell in our -- in our facility at the Peace Arch.
Wolfe:
So after you placed him in a detention cell, if that's the correct term, did you have any further dealings with that man?
Obrist:
I may check on him, you know, make sure he doesn't need any food or a blanket or something like that. So I couldn't say when the exact last one was, but after placing him there, doing occasional checks, that's the last I interact with him. I didn't transport him.
Wolfe:
Could I have Exhibit 4 produced, please?
Obrist:
Thank you.
Wolfe:
So, witness, you have before you Exhibit 4, and this appears to be an aerial view, a satellite view depicting certain areas on the -- on the map. Do you recognize anything that's depicted on there?
Obrist:
Yes. This appears to be a picture of the border area around the Peace Arch. And, so where it says U.S. Border Services would be the Peace Arch border crossing that we're talking about that -- that -- that I work at.
Judge:
That's the building you've been talking about?
Obrist:
Yeah, the one that says U.S. Border Services.
Judge:
Yeah. And do you see that, Mr. Fox, the building that's entitled on the map U.S. Border Services?
Fox:
Yes, yes, thank you.
Wolfe:
So it does accurately depict your -- your building, the one that you've been referring to all along?
Obrist:
Yeah.
Wolfe:
So it was in that building that you dealt with Fox and put him into a holding cell --
Obrist:
Yes, sir.
Wolfe:
-- is that right?
Wolfe:
I have no further questions.
Judge:
Okay. Do you have any questions, Mr. Fox?
Fox:
Yes, I do. Thank you.
CROSS-EXAMINATION BY THE ACCUSED:
Fox:
First, good aft -- or good morning still, I guess, Officer Obrist. It's good to see you again. The Crown had asked you a while ago about where was the first place that or where you had first interacted with me, and that was in the interview room inside the CBP building at the border. But I'd like to ask you a little bit more specifically, where was the first place that you had actually seen me, that you laid eyes upon me?
Obrist:
In the lobby. I had to greet you and bring you --
Fox:
Sure.
Obrist:
-- into the interview room, yeah.
Fox:
So it still would have been inside the building, though, right?
Obrist:
Mm-hmm.
Fox:
Okay. And -- sorry, I'm taking notes while I'm asking the questions. Did you observe me during the period of time where I may have left the Canadian checkpoint, the CBSA building on the Canadian side and where I had gotten to the CBP building on the U.S. side?
Wolfe:
Sorry.
Fox:
You didn't understand.
Wolfe:
I didn't understand that.
Fox:
Okay.
Judge:
I guess prior to you seeing Mr. Fox in the lobby of the U.S. Border Services Building, had you seen him that day at all?
Obrist:
No.
Fox:
Okay. So, then, I guess it would be fair or reasonable to say that you did not see me walking to the CBP building?
Obrist:
That is correct.
Fox:
Thank you. Do you have any first-hand knowledge of how I came to be at the -- oh, let's see -- how I came to be at the CBP building or -- well, at the Peace Arch state park I'd say to be more general, on that day?
Obrist:
What do you mean by first-hand knowledge?
Fox:
Well, as opposed to hearsay? As opposed to something you might have heard from someone else?
Obrist:
I did not witness it, no.
Fox:
Okay, great. That would be all the questions I have.
Judge:
Okay.
Fox:
Thank you again for --
Judge:
Anything else, Mr. Wolfe?
Wolfe:
Nothing arising.
Judge:
Okay, Officer, thanks for coming.
Obrist:
Thank you, Your Honour. Do I give this to you? Can I take this with me?
Wolfe:
Sure.
(WITNESS EXCUSED)
Wolfe:
I would like to start my next witness, if I could, please.
Judge:
Sure. Thanks, Officer.
Obrist:
Thank you, Your Honour.
Wolfe:
I'd like to call Constable Brown right now.
Judge:
Constable Brown, okay.
KIRSTY BROWN
a witness called for the Crown, affirmed.
Clerk:
Please state your full name, spell your last name and give your badge number for the record.
Brown:
It's Constable Kirsty Brown. I'll spell the first name as well. It's K-i-r-s-t-y, last name is Brown, B-r-o-w-n. My regimental number is 47608.
Judge:
Thanks, Constable. You can have a seat if it's better for you.
Brown:
I'll stay standing.
Judge:
It's up to you.
Brown:
Yeah, sometimes I get lost when I sit down.
Judge:
Yeah, no problem.
EXAMINATION IN CHIEF BY MR. WOLFE:
Wolfe:
Constable Brown, you're a member of the Royal Canadian Mounted Police; is that correct?
Brown:
Yes, that's correct.
Wolfe:
And you're ranked as a constable, correct?
Brown:
Yes.
Wolfe:
And you have been a peace officer and police officer for how many years?
Brown:
Nineteen years, just over 19 years.
Wolfe:
All with the RCMP?
Brown:
That's correct, yes.
Wolfe:
You were so employed and on duty during all the material times of the investigation which brings you to court today?
Brown:
Yes, that is correct.
Wolfe:
Your -- in relation to the investigation bringing you here today, were you attached to a particular unit?
Brown:
Yes, I was then and currently am assigned to duties with the Burnaby RCMP's high-risk offender unit. Predominantly our mandate is to monitor offenders bound by court-imposed conditions.
Wolfe:
You were assigned to a particular investigation which brings you to court today along with your colleague Tyler Hawkins; is that correct?
Brown:
Yes, that's correct.
Wolfe:
Do you happen to recall when you received that assignment?
Brown:
I would have to check my notebook to confirm the exact date if it's all right.
Wolfe:
Is there any issue with the court?
Judge:
Yeah, no. These are notes you made with respect to your -- at the time --
Brown:
Yes.
Judge:
-- that you were involved? Okay.
Brown:
Yes.
Judge:
Yeah, go ahead.
Brown:
Thank you.
Judge:
This is the date when you first assigned, I guess, is it?
Brown:
That's correct. On March 19th of 2019, the afternoon, myself and Constable Hawkins were briefed and assigned the investigation into allegations of breach of probation in relation to Burnaby file 2019-10877.
Judge:
Okay.
Wolfe:
Did you have any particulars regarding the nature of the probation breach at that point?
Brown:
The allegations were that there was some indication that website activity relating to Mr. Fox's index conviction, the criminal harassment, the probation order that resulted in that, that there had been some reactivation of activity on the website or a similar website and that the investigation which initially started with other investigators and then went to a neighbouring police agency.
And efforts had been made to locate Mr. Fox, and at that time it had been determined that it appeared he had crossed into the United States. So when we were briefed on the 19th, the belief was at that time, based on information from our colleagues in Vancouver, that Mr. Fox was, in fact, in the United States, which was a breach of the condition relating to leaving the Province of British Columbia, and --
Wolfe:
So -- so did that alter your investigation at that point?
Brown:
At that point, our focus was on determining where Mr. Fox was and furthering the investigation into the breach of being within a certain proximity of the border and leaving the Province of British Columbia.
Wolfe:
So ultimately did you liaise with any external agencies in order to determine where Mr. Fox was?
Brown:
We did, and certainly some of the activities were conducted by myself and Constable Hawkins being present at the same time for telephone calls that were initiated, efforts to contact the Vancouver Police detective that had made the initial enquiries and provide the information to us, as well as contact with the Blaine command centre, the U.S. border patrol to determine how it was that Mr. Fox had entered into the United States, how that could have come to be, and whether there was any indication that other conditions from the active probation order might have been in play in terms of breaches and specifically the condition that related to Mr. Fox not obtaining documents, passport, enhanced driver's license or a Nexus card, documents that would facilitate his crossing of the border. So we -- we were looking into that aspect as well.
Wolfe:
At some point, were you in touch with border control to -- well, let me just back that up a little bit. At any point during the course of your investigation, did you become aware whether or not there was a warrant in the first instance which had been issued for his arrest?
Brown:
There was in the days following our investigation commencing. I believe the warrant in the first instance was issued the following week, but by the end of that first week, we had been in contact with Crown who had indicated that a charge was forthcoming and the warrant, I believe, was active the following Monday.
Wolfe:
Did you have information regarding to what that warrant related?
Brown:
That -- that particular charge and warrant related to Mr. Fox failing to report to his probation officer as directed. I had also been in touch with the probation officer in the initial days that we had been assigned the investigation. After -- after the point at which we had confirmed that Mr. Fox was actually in U.S. authorities' custody, that information was relayed to the probation officer who had confirmed a direction had been given to Mr. Fox by him at the previous meeting for him to report the following Tuesday at a particular time, and that day and time had passed, and Mr. Fox had not reported as directed and that the probation officer was going to be furthering a report to Crown counsel with respect to the information detail on that failure to report.
And that -- that charge once approved, then a warrant issued related specifically to that probation condition specific to the direction given by the probation officer.
Wolfe:
Did you and your colleague take steps to execute that warrant?
Brown:
Yes, on April 4th, myself and Constable Hawkins attended to the Douglas crossing, the Peace Arch crossing on the Canadian side and met with U.S. border patrol Agent Berg [phonetic] who had custody at that time of Mr. Fox. We had been given an indication the day before that Mr. Fox would be returned to Canada from the United States and had arranged to meet to pick him up, execute the warrant on the Canadian side when he was returned, and we did so on April 4th, 2019.
Wolfe:
So you attended the Canadian side of the Peace Arch border and interacted with Berg, did you?
Brown:
That's correct, yes.
Wolfe:
And, then, did you take custody of Mr. Fox at that time?
Brown:
We did. We -- we arrived, Constable Hawkins and myself arrived in a marked RCMP police vehicle with a, excuse me, a prisoner transport barrier in the vehicle. When we pulled in and parked, we were met by a plain-clothes individual that identified himself as Officer Berg. He was operating just an unmarked pick-up truck and indicated that he had Mr. Fox in custody in the back seat.
And we had a brief interaction, transferred custody of Mr. Fox, and Mr. Fox was walked from Officer Berg's vehicle to the back seat of our police vehicle, placed into the back seat, after Constable Hawkins initially verbally arrested and handcuffed him. And at that point, an arrest script was utilized by Constable Hawkins to provide Mr. Fox with his reasons for arrest, rights to counsel and police warning, which was recorded by Constable Hawkins on an audio digital recorder.
Wolfe:
You had an opportunity to review a transcript of that?
Brown:
I have, yes.
Wolfe:
Does that accord with your recollection of what transpired?
Brown:
Yes.
Wolfe:
Now, are you able to describe Mr. Fox for the court, his physical appearance?
Brown:
Mr. Fox is the defendant seated at the table.
Wolfe:
Oh, no, no, no.
Brown:
Sorry.
Wolfe:
I've only asked you for his description.
Brown:
Certainly. Description, Mr. Fox is described as a Caucasian male.
Wolfe:
Yes.
Brown:
Slightly taller than me but not overly tall, slim -- slim build. He was wearing black jeans and a shirt. We had an effects bag that was handed to us that contained other items. He had a beard and a mustache on that date, and that's about all I can offer by way of description.
Wolfe:
Apparent age?
Brown:
Age, mid -- mid-forties by appearance.
Wolfe:
And would you recognize him if you saw again?
Brown:
Yes, I would.
Wolfe:
Looking around, do you see him here today?
Brown:
Yes. He is seated at the defendant's table.
Wolfe:
And what garment is he wearing, please?
Brown:
He's wearing a red sweatshirt with what appears to be a red T-shirt underneath it.
Judge:
I note that indication. Thank you.
Wolfe:
Yes, Your Honour.
Wolfe:
If we just pick up to where you left off regarding the arrest script and the Charter. Where were you -- this was done by Hawkins --
Brown:
That's correct.
Wolfe:
-- not you?
Brown:
Yes.
Wolfe:
Where are you in relation to Fox and Hawkins?
Brown:
We're side by side so Mr. Fox was placed in the back seat of the police car, the side that would be behind the driver's seat on the police vehicle. The door was open, the back seat door was open. Constable Hawkins was standing in the open doorway with his notebook, the arrest script sitting on his notebook and his digital recorder, and I was standing slightly behind and to the left of Constable Hawkins at the edge of the door. I was present for the entire interaction.
Wolfe:
At some point, did you interact personally with Mr. Fox?
Brown:
I did. At the conclusion of the arrest script being read out by Constable Hawkins, towards the end of it I asked Mr. Fox if he had any additional questions beyond the questions that had been put to him.
Wolfe:
So at this juncture, I think we should resume the voir dire with respect to voluntariness.
Judge:
Okay. Yeah, well, we'll -- we'll be back into the previous voir dire, Madam Registrar.
EXAMINATION IN CHIEF ON VOIR DIRE BY MR. WOLFE:
Wolfe:
May I continue now?
Judge:
Sure.
Wolfe:
Thank you.
Wolfe:
What interactions -- oral interactions did you have with Mr. Fox?
Brown:
Beyond the end of the audio recording?
Wolfe:
Yes.
Brown:
So the only other interactions really that I had with Mr. Fox were questions that I posed to him on the trip back from Peace Arch border crossing from Surrey back to the Burnaby RCMP detachment, and during the course of that trip back, made some enquiries to Mr. Fox as to his level of comfort in the back seat of the police vehicle regarding temperature and that sort of thing.
I did that two or three times, and on the final time I also asked Mr. Fox whether he had a chance to have anything to eat that morning and what time it was that he would have left the Tacoma detention centre just so that we had a bit of an understanding of the time frame of how long he had been in transit and when the last time he'd had anything to eat was, and he provided me some responses to those questions.
Wolfe:
Did -- did you receive any complaints from him regarding his comfort?
Brown:
No.
Wolfe:
Was there a conversation -- how long was the drive back to the detachment?
Brown:
I would have to check my notes to see exactly our departure time and our arrival time, but I want to say it was somewhere in the 45- to 50-minute range, just a very easy trip. There wasn't very much traffic but just certainly the distance dictated the length of the trip. And over the course of such a time being in the back seat of a police car particularly wearing handcuffs, it was I think encumbent on me to ensure that Mr. Fox wasn't having any discomfort, which I have in the -- my past experience as a police officer that does come up sometimes for that duration of trip. So that's why I was checking on him.
As we got closer to the detachment, I obviously wanted to make some enquiries about whether he had had anything to eat or drink that morning and assured him that once we got back to the detachment, some efforts would be made to provide him with some -- some more sustenance and possibly coffee if he was a coffee drinker.
Wolfe:
Sure. Were there -- were such arrangements made to your knowledge?
Brown:
There were. It's my understanding that those matters were attended to by another officer. I didn't particularly have much involvement in the processing of Mr. Fox when he was in cells, and then he was later removed and taken to an interview room, and I believe it was then that he was afforded some coffee. I'm not sure about food, but I know that those -- those considerations were discussed and accommodated.
Wolfe:
On the drive back over what you estimate to be a 45-minute trip, did you engage in conversation with him?
Brown:
No. The only time that I spoke with Mr. Fox was to make those enquiries as to his level of comfort, and -- and he responded duly to those. There was no other conversation that we had other than once we arrived back at the detachment, prior to entering into the secured bay outside of our cellblock, Constable Hawkins had entered into the building itself just to determine whether or not there was space for us in the bay. And during that time I took the opportunity to open the back passenger door and let Mr. Fox know that we would just be a few minutes before we were entering into the building just so that he was aware of what -- what was happening.
Wolfe:
At that juncture, did he express any needs or concerns or voice any complaints?
Brown:
No.
Wolfe:
So the degree that you interacted earlier with him, did he appear to be responsive to your queries or comments?
Brown:
Yes. He was -- he was polite. He answered. There was no lengthy interaction between the two of us. It was just quite simply cordial and respectful conversation.
Wolfe:
When you arrived at the Burnaby detachment, and just picking up from where you say you're outside the vehicle and you're advising Mr. Fox what your colleague is doing, what's the next interaction you have with him? What -- what contact do you have with him after that?
Brown:
Well, the logistics of that were that Constable Hawkins came back out -- outside. The bay door opened. Constable Hawkins entered into the driver's seat to pull the vehicle in. I was still in the passenger seat. And, then, Constable Hawkins took Mr. Fox into the cellblock proper, and I attended up to my office on the second floor of the detachment.
A short time later, I attended to the cellblock area where Mr. Fox was still being processed by Constable Hawkins, in order to make some notes and take some photographs of the effects that he had in his possession that had been provided to us by Officer Berg, and I was in visual proximity.
The cellblock area is sort of one large room, and I was behind the main counter, and the processing room where fingerprints and photographs are obtained is just a small room off that main room, and I was in a position to be able to see Mr. Fox, and I believe Mr. Fox could see outside of that room, as well, but we had no direct interaction or conversation. Constable Hawkins was conducting the processing. He came in and out of that room himself directly, and I spoke with him a few times, but nothing -- nothing in particular with Mr. Fox.
Wolfe:
So any form of communication at that juncture with Mr. Fox? Hand signals, vocal, anything at all?
Brown:
No.
Wolfe:
You say you're down there photographing his effects approximate to where he is with Constable Hawkins. What's -- what's your recollection of your last visual contact with Fox at that juncture?
Brown:
In terms of where he would have been --
Wolfe:
Sure.
Brown:
-- and where I would have been?
Wolfe:
At some point, is he out of your eyesight or do you leave, does he leave?
Brown:
I don't recall specifically if I left first or if they were done and he was taken to the cell that he was going to be placed in. I don't specifically recall if that's the case or not.
Wolfe:
You don't -- do you later interact with him in cells?
Brown:
No.
Wolfe:
Do you have any role in delivering to Corporal Jason Potts?
Brown:
No.
Wolfe:
So at any time you interacted with Mr. Fox, did you make any promises to him or offer -- well, make any promises to him?
Brown:
No promises.
Wolfe:
No. Offer any advantage?
Brown:
No, no offered advantage. The only thing that was put to Mr. Fox in terms of anything that I would either directly or indirectly provide for him was nourishment, food and refreshment to take care of his basic necessities, and that was the only thing that was discussed with him, and it was not discussed in connection with anything that he should or shouldn't do or would or wouldn't do in exchange for that.
Wolfe:
Any threats?
Brown:
No threats.
Wolfe:
Any attempt to confuse him regarding the case or the investigation?
Brown:
No.
Wolfe:
Any attempt to create some doubt in his memory about what was going on?
Brown:
No.
Wolfe:
Any attempt to persuade him that he was guilty of any offence?
Brown:
No.
Wolfe:
Any -- any trickery or try by you to get him to, you know, to turn against himself?
Brown:
No.
Wolfe:
What was -- can you relate to the court, please, the -- your tone of voice and demeanour when you're interacting with Mr. Fox?
Brown:
I would think that my tone and demeanour would be very similar to the tone and demeanour that I have today in this courtroom. I was professional. I spoke at an even and calm tone. I was informative, I think, in terms of what the process was and that was unfolding, and I was considerate of the fact that if Mr. Fox had any questions or concerns, that I was wanting to know about them, and if there were any would do something about that.
Wolfe:
When you were dealing with him or interacting with him, was he in handcuffs at all times?
Brown:
He was in -- in so much as he was -- his custody was transferred from Officer Berg to -- to us. He was placed into handcuffs by Constable Hawkins in my presence. He was placed into the back seat of our police car and was in handcuffs from then until I then saw him when I entered into the cellblock. And when I saw him sitting in the processing room, he would not have had cuffs on at that point. Cuffs would have been removed.
Wolfe:
Any complaint from him regarding his handcuffs?
Brown:
No, none.
Wolfe:
When you offered nourishment and drink, did Fox indicate whether or not he wanted either?
Brown:
He did indicate that -- that he would be interested in having something. He also confirmed that he was a coffee drinker and would -- I don't recall the exact words but that he would be happy to receive a cup of coffee once we got back to the detachment.
Wolfe:
Okay. [Cellphone ringing].
Brown:
My apologies, Your Honour.
Wolfe:
Did you have any role with respect to Mr. Fox's interaction with Corporal Potts?
Brown:
Sorry, could you --
Wolfe:
Yes.
Brown:
-- say that again.
Wolfe:
Any role with respect to Potts's interaction with Fox?
Brown:
In terms of me being present for that?
Wolfe:
Yes.
Brown:
No. No.
[VOIR DIRE SUSPENDED AS PER DISCUSSION AND JUDGE'S DIRECTION ON PAGES 39 to 40]
EXAMINATION IN CHIEF BY MR. WOLFE, CONTINUING:
Wolfe:
During the course of your investigation, did you become involved in attempting to obtain any closed-circuit television footage from the Canadian Border Services Agency?
Brown:
Yes. I had requested Constable Hawkins follow up with Canadian Border Services Agency to see if any was available, any closed-circuit television surveillance footage was available from March 15th, which was the day that we understood that Mr. Fox had crossed the border and been taken into custody.
On the day that we attended to arrest him on April 4th, there were two CBSA officers present with Officer Berg that were waiting for the exchange to happen, and in clarifying with them whether they needed to take Mr. Fox into custody or if there was any border matters that they needed to deal with prior to us taking custody of him and confirming that they -- they -- they didn't need to have him brought into the building, there was a passing comment from one of them regarding Mr. Fox's presence or passing by of -- of the location that we were at, which was just outside of the Canadian Border Services Agency building on the Canadian side.
Wolfe:
Present when?
Brown:
On -- on the day that he had crossed into the United States. My understanding of what that comment was was that on March 15th there had been some indication that he either had passed or would have had to have passed the CBSA building on his way down to the border.
Wolfe:
Were you previously aware of that or --
Brown:
No, no, we weren't. We had consulted with -- with CBSA in terms of any contact that they had had with him, and there was nothing documented as indicated to us that any interaction had occurred, anything that they would have had in their records management system.
Judge:
Okay, your voice is -- is very soft --
Brown:
Sorry.
Judge:
-- Constable. You said you had consulted with the Canadian Border Services?
Brown:
That's right.
Judge:
And your understanding was that they -- they couldn't provide any documentation or -- or CCTV footage of -- of Mr. Fox's crossing on March 15th?
Brown:
So our initial contact with the CBSA was to make enquiries as to whether or not they had any records relating to him crossing the border or returning to Canada, because our belief was that he had crossed into the United States and his whereabouts were unknown. So we were making initial enquiries as to whether or not they had had any documented interaction with him --
Judge:
Okay.
Brown:
-- in relation to that date or around that date, and the indication had been that they had not had any. On April 4th when we went down to effect the arrest of Mr. Fox when he was returned to Canada, there was an indication, and I don't recall the exact words from the officer who made the comment that --
Judge:
Now, these are the U.S. officers?
Brown:
This is the Canadian CBSA officer who was present --
Judge:
At the handover.
Brown:
-- at the handover.
Judge:
Okay.
Brown:
And an indication given that on the day that he was taken into U.S. custody, so on March 15th, Mr. Fox was either at CBSA's building or would have had to proceed past CBSA's building on his way to the U.S. border. And in the investigation that ensued afterwards and in wanting to follow up whether that was, in fact, the case, whether any officers had had any interaction, whether there was any footage, we had made a formal request by email. Constable Hawkins had made that request in May to reach out to our -- the same contact that we had spoken with at CBSA that informed us that there were no documented interactions with Mr. Fox, whether there was someone we could speak to, to solicit CCTV footage from that day to determine whether or not there had been some contact with him or footage of him passing by or anything to that light.
So that response was not received, and so on July 31st I sent a second request to that same contact and received --
Judge:
July 31st?
Brown:
July 31st of 2009 [sic]. I subsequently received a phone call back from another CBSA agent who informed me that the original request had not been actioned and in some fashion had been misplaced and that he would look into whether footage still existed from March 15th. And I subsequently received another call back followed by a brief email where the indication was that footage going back to March 15th, 2019, was no longer available and that the earliest footage that was available on the system, CBSA's retention system was April 4th of 2019.
I then requested assistance from CBSA in soliciting information from any officers who may have been working on March 15th to determine whether any had any contact with Mr. Fox or had any recollection of contact with Mr. Fox and specifically provided the name of the officer who had been present April 4th, and as of my most recent contact with him, that officer was unavailable and on holidays and a response had not yet been received.
So no footage available for March 15th, no indication from any --
Judge:
No document or no records of anything?
Brown:
No records, confirmed no records, any official records relating to any interaction with Mr. Fox, no footage available from March 15th.
And subsequent to that, I made a secondary request the following week to see if I could get footage from April 4th, and by the time that request has -- had been submitted, again, the footage was now gone from that. And simply that would have been to obtain some footage of our presence on April 4th at the -- at the border during the time when we were taking custody of Mr. Fox.
Judge:
Mr. Fox is standing.
Fox:
I'm terribly, terribly sorry about this. May I ask Mr. Wolfe a question, because, I mean, I think something is becoming very clear from my perspective.
Judge:
Well, I imagine it is.
Fox:
Or should I wait?
Judge:
Let's -- let's release the officer. You're back at two o'clock. Okay? Is that okay?
Brown:
Mm-hmm.
Judge:
All right. We'll see you back at 2:00, thanks.
(WITNESS STOOD DOWN)
Judge:
I'll stand --
Wolfe:
Is it something you wanted to put on the record?
Judge:
We'll stand court down then, and then if you have a question of Mr. Wolfe about some disclosures, I'll let you deal with that --
Fox:
Sure.
Judge:
-- now. Okay. We'll see you at two o'clock.
Fox:
Thank you.
Judge:
Okay, thank you.
(PROCEEDINGS ADJOURNED FOR NOON RECESS)
(PROCEEDINGS RECONVENED)
Wolfe:
Wolfe, initial B., for the Provincial Crown, Your Honour.
Judge:
Thanks, Mr. Wolfe. And Mr. Fox is here as well. I'm -- I'm just going back here. I want to confirm -- I mean, it's no -- it doesn't matter to me if the rest of the evidence goes in on the voir dire or not, but I noticed you've re-commenced the voir dire on the statement, and then you started to get into the CCTV footage again.
Wolfe:
You're right. That's right, and I didn't ask to suspend and I've noticed that over the lunch hour.
Judge:
Okay. And we can -- we can back -- we can go back, if you want, but --
Wolfe:
Well, I think it's probably prudent because the evidence related to the follow-up investigation related to the CCTV really isn't --
Judge:
There was a --
Wolfe:
-- about the voir dire.
Judge:
And there was a moment there, Madam Registrar, where counsel was asking about promises, advantages, threat and the tone of voice, and I think just after that is probably where you wanted to suspend it, is it?
Wolfe:
Yeah, I think there may be a notation or a question that I recall that ran something like, "Were you involved in any follow-up investigation related to the CCTV from CBSA?"
Judge:
Yes.
Wolfe:
And at that point I transitioned from outside the voir dire to really evidence that should be in the trial proper.
Judge:
Okay. So do you have --
Wolfe:
Is that your recollection?
Judge:
-- that Madam Registrar? It's the --
Clerk:
I don't have that exactly. I do have --
Judge:
It's a question that started, "Did you obtain the CCTV footage?" essentially.
Clerk:
I do have a note that says at 12:18, "They couldn't provide any documentation or CCTV footage." So just prior to that?
Wolfe:
Well, it would have been prior to that, but --
Judge:
Yeah.
Wolfe:
-- I don't know whether we need to listen to the --
Judge:
But I --
Wolfe:
-- audio for that.
Judge:
I -- I understand that the voir dire will be suspended just before the questions about the CCTV footage --
Wolfe:
Agreed.
Judge:
-- is my understanding.
Wolfe:
Yeah, no, I agree with that.
Judge:
Okay.
Wolfe:
And, then, I considered whether I wanted to have any follow-up questions on the voir dire, but I kind of --
Judge:
Okay. And, again, because it's judge alone we can do these things and there's no --
Wolfe:
Fortunately.
Judge:
-- there's no real issue with it so --
Wolfe:
No.
Judge:
Okay, so just let me get that. Okay. All right. So we'll have the witness back, and I think we're right at the point -- I don't know if you sorted out what Mr. Fox -- when he was standing, I'm not sure he --
Wolfe:
Well --
Judge:
Did you sort that out?
Wolfe:
I reckon we did.
Fox:
Yes.
Judge:
And we're at -- I think you were ask -- the officer was testifying that she then requested the footage from the April 4th visit to the border --
Wolfe:
Right.
Judge:
-- and that wasn't available. I think we were right around there.
Wolfe:
Right.
Judge:
Okay. So we'll have the constable back in then.
Wolfe:
Sure.
Clerk:
This is on the trial proper?
Judge:
This is on the trial proper. Thanks, Constable.
KIRSTY BROWN
recalled.
EXAMINATION IN CHIEF BY MR. WOLFE, CONTINUING:
Wolfe:
The -- the date, Constable, where you were informed from CBSA that they had not taken any action on the May 7th request for CCTV --
Brown:
Yes.
Wolfe:
-- you learned that on what date?
Brown:
July 31st of 2019.
Wolfe:
Prior to that you -- had you been informed whether or not the CCTV footage from March 15th, 2019, was or was not available?
Brown:
We had not received a response either way.
Wolfe:
Those are my questions. Thank you.
Judge:
Thank you. Yeah, Mr. Fox, do you have questions for this witness?
Fox:
Thank you. Yes, yes, I do.
CROSS-EXAMINATION BY THE ACCUSED:
Fox:
Good afternoon, Constable Brown.
Brown:
Good afternoon, Mr. Fox.
Fox:
Staying on the topic of interactions with CBSA and CCTV video footage and whether or not the RCMP was aware of any possible interactions with him, I have a few questions along those lines. First, I have this email that I just received this morning from the Crown that was purportedly written by you so I'm going to assume you're familiar with it, but I don't have a copy to provide you. I'm not sure if the Crown does.
Brown:
I might have a --
Judge:
Okay, if the witness could be -- is the exhibit we entered or --
Fox:
No, no, it's a --
Judge:
Something else.
Fox:
-- a different one.
Judge:
Okay. If you could identify the email just for -- for Constable Brown, Mr. Fox. What date is it?
Fox:
Sure. 2019 or July -- July 31st at 11:46 a.m. to Hawkins, Constable Hawkins. From Kirsty Brown. Oh, oh, sorry, to Shan-Marie Pereira.
Wolfe:
Do you have that?
Brown:
Yes, I do have --
Judge:
Do you have that in your hand?
Brown:
I do have a copy of that email.
Judge:
Okay.
Fox:
Now, I just want to clarify because when you were testifying earlier, I kind of -- I kind of got the impression that you were suggesting that things maybe might not has been as clear as how I had interpreted it from in here so I just want to make sure that I am clear.
On April 4th when you went to Peace Arch to take custody of me and there were a number of CBSA officers present that were around, and one of them you had referred to an Officer Gill [phonetic] who had mentioned that -- well, the way it's worded in here -- mentioned that on the night Fox crossed he had stopped at CBSA pedestrian crossing first.
Though, when you were testifying earlier the way you had phrased it was that he had indicated that I had either stopped in there or that I had walked past the building.
Judge:
You just want to clarify that --
Fox:
Well, I want to clarify that because it seems a little strange to me, I guess, that --
Judge:
And I guess this is just -- this is just information obviously you're receiving. Was it your understanding -- I guess the question is, was it your understanding that Mr. Fox had interacted with the CBSA officers prior to entering the U.S. or had just walked past CB --
Brown:
Again, that was the intent of sending the request in the first place was to determine, based on the fact that we had been advised there was no actual records relating to Mr. Fox, that perhaps CCTV would support the notion that he had had some interaction, whether he stopped or just was walking by and spoke with an officer that may have been outside. We weren't sure.
You're correct in my email that in paragraph 2 I do say that one of the CBSA officers was present, Gill, mentioned that on the night Fox crossed he had stopped at the CBSA pedestrian crossing. The next paragraph down I then say that if that is the case, and Mr. Fox did stop at the CBSA building, whether there's any CCTV to support his presence.
So even in my email, you know, I'm partially saying there may have been an indication that you had stopped there, but we weren't clear what the interaction was, if there was any, and that was the request for video to be able to determine one way or the other whether there was.
Fox:
I see, I see.
Brown:
Yeah.
Fox:
So -- okay, so I probably misunderstood earlier then, because it seemed to me that you were suggesting that a CBSA officer might have been saying that he was making a note that I had just walked past the building, which certainly seemed very odd. Why would somebody just walk past the building and an officer make note of that. All right.
Can we safely assume, then, that it is your position that it's your understanding that I did actually -- that I did actually enter the building and interact with some of the CBSA officers or --
Brown:
I have not been able to confirm that because there's no CCTV footage available --
Fox:
Right.
Brown:
-- and I haven't received a confirmation from CBSA --
Fox:
Okay.
Brown:
-- this officer Gill or any officer that they did have any interaction. I can't -- I can't say that that is the case.
Fox:
Right. And is it because there was no direct evidence or proof that I interacted with CBSA? Is that why the RCMP did not around that time or prior to that time seek the CCTV video footage?
Brown:
We did seek it --
Fox:
May 7th.
Brown:
-- May 7th.
Fox:
About a month after you took custody of me?
Brown:
Correct, that's correct.
Fox:
A month seems like an awful long time though? I mean, when a person is sitting in custody, when a person's life is being destroyed because of allegations, and there might be evidence out there that clearly proves that he's innocent, and you do nothing for a month
and --
Brown:
Well, at --
Fox:
-- pardon me for being a little upset.
Brown:
-- at the point at which that request is made, we had already been given an indication from CBSA that there was no documented interaction with you.
Fox:
Right.
Brown:
And certainly that was part of the clarification request that we were making in May to try and confirm whether that was the case, whether they were in error, whether there was anything else that could substantiate one way or the other. I wasn't there so I can't say. I can't say definitively what Officer Gill was saying to us that day when we were there to pick you up because we were dealing --
Fox:
Fair enough.
Brown:
-- we were dealing with you, and that was the -- the task at the time. But in -- in the follow-up investigation after the fact, it seemed important to me to determine whether there was any other additional evidence to be gathered from the border.
Fox:
Right.
Brown:
We were seeking the same equivalent information in terms of CCTV footage from the U.S. side, and it seemed only prudent to be seeking the same type of evidence from the Canadian side. So both of those things were being done simultaneously.
Fox:
Right, right. However, you did seek it from the U.S. side the day after you came onto the case, March 21st, as opposed to two months later from the Canadian side
but…
Fox:
Okay. Well, I have here this other document, Burnaby RCMP Narrative Text Hard Copy. It's a -- I'm not sure what you would call what it is. I usually refer to it as an incident report or this has a narrative, and it looks like a summary or a synopsis of the interview that I had given with Constable Potts.
Brown:
Okay. Does it have a title at the top of who wrote the report?
Fox:
Well, it says -- has your name as the, yes, author Brown Kirsty, so I assume that's you? And the date of it is April 5th. The interview was done on April 4th.
Brown:
Okay.
Fox:
Are you familiar with this?
Judge:
Do you have -- do you have that with you?
Brown:
I might. I'm not exactly sure which document it is.
Fox:
In the disclosure package it's the page before where the transcript of my interview begins, which -- they don't have overall page numbers on them. Sorry, in the PDF file I just click on it and read.
Brown:
Sorry. Does it -- does it say, Police Statement-1 at the very top underneath the police file number?
Fox:
It says, "Accused Suspect Statement." You can show her that.
Brown:
So this is the scribe notes, the scribe notes that Constable Hawkins wrote while he was monitoring the one interview that Corporal Potts was conducting with you.
Fox:
Mm-hmm.
Brown:
I'm the author of the page within our records management system. So I opened up the page, and I cut and paste in the scribe notes that Constable Hawkins had provided as part of the disclosure. So I didn't draft --
Judge:
The content.
Brown:
-- the content. I created the page --
Judge:
You collated --
Brown:
-- to attach it --
Judge:
-- the information.
Brown:
Yes, yes. So I didn't --
Fox:
Well, gee, I wish I would have known that while Constable Hawkins was here.
Judge:
You had a question about it?
Fox:
Well, yeah. I mean, there was something that I wanted to bring to her attention --
Judge:
Is it -- can you provide -- I guess Mr. Fox -- do you want to give that back?
Brown:
Sorry.
Fox:
With respect to that interview that I'd done with Constable Potts, now, I know that you weren't involved in the interview and you weren't monitoring it, but at some point, were you made aware of what was said in the interview?
Brown:
We were -- yes, we did brief about it after the interview was concluded.
Fox:
How long after?
Brown:
I -- I would say probably right after it.
Fox:
So within 24 hours?
Brown:
Within 24 hours. Constable Hawkins had provided me that document --
Fox:
Yeah.
Brown:
-- the document that he had written that -- those monitor notes
onto for the purpose of disclosing to Crown, and that was my role in preparing the secondary disclosure for Crown. So that's why that's attached in that --
Fox:
Right.
Brown:
-- fashion. At that time, we didn't have a full statement transcription. It hadn't been transcribed fully.
Fox:
Right.
Brown:
So we were forwarding that document to Crown as a summary from Constable Hawkins of the interview.
Fox:
Okay.
Brown:
As -- as he monitored it.
Fox:
So can I assume, then, that the contents of this document here was made known to you on or about April 5th that you were aware of the contents of this document or --
Brown:
I'm aware that that document exists. I couldn't say that I read it through in its entirety.
Fox:
Okay.
Brown:
Nor would I have known whether it was in any way, shape or form accurate in terms of I didn't monitor it and I didn't write the document.
Fox:
Can -- can you tell me approximately when you would have become aware of everything that is in this document?
Brown:
If I could look at that document, I could tell you the time that I -- it should say at the top of the document the date and time that I would have attached it.
Fox:
Is it okay if I --
Judge:
Yeah, you can approach. You're okay with him approaching you?
Brown:
Absolutely. Thank you. So I would have attached -- so I would have created this -- this document within our records management system on the 5th at 1613 hours, and as part of the secondary disclosure. This might have actually been part of the third disclosure. I'm not entirely sure. I'd have to check the attachment list pages to know what was disclosed in what order. But this would have been cut and pasted on that day is the day that I created the document.
And, then, this -- this document because it was not the primary disclosure package would have had to have been printed out and attached as a hard copy to an attachment list to be forwarded to Crown for supplementary disclosure. I can't say whether it was the second disclosure or third disclosure without looking at one of the attachment lists that accompanied it.
Judge:
Do you have a question about that document, Mr. Fox?
Fox:
Oh, yes, the same question. Can you give me some idea approximately within a day or two of when you might have become aware of --
Judge:
Yeah, but what -- and I guess what the outcome is what -- the line of questioning and what relevance is of when she became aware?
Fox:
Well, it gets back to this issue of when of the -- the issue of this video evidence the CBSA had.
Judge:
When -- when they knew about your side of the story essentially.
Fox:
Yes. There's information in there -- well, we'll get to that in just a moment.
Judge:
Okay. So the contents of the interview, I guess the question is, when did you become first aware of the -- Mr. Fox's version of events?
Brown:
I mean, I would have had a brief look at this document when I was attaching it to make sure that it appeared to be the document that was intended to be the full monitor log notes that Constable Hawkins was providing me. Again, I didn't -- I didn't create the document so I didn't really pay too much attention to the contents at that time. And, the supplementary disclosure would have been sent the following week, and the next disclosure would have been the actual transcribed statement and that sort of thing.
So I -- I couldn't say. I don't have a notation or an actual memory of reading through this in its entirety or whether or not specific details out of here were presented to me by the person who created the document or the interviewer.
Fox:
Okay. Mr. Wolfe, I apologize. There's no dates, though, on -- like, when the initial disclosure was provided to me. Do you happen to remember when that was?
Wolfe:
Let me just check.
Fox:
Sure.
Fox:
Okay, so can we assume that within a week from the date that's on here, April 5th, it's certainly by that time you would have been familiar with this? You would have at least glanced at it?
Brown:
Possibly.
Fox:
All right.
Brown:
I can't say one way or the other that I did or I didn't within that week.
Fox:
One of the points in here, there are some highlights about some of the things that I had said to Constable Potts in my interview, and that's going to come into evidence later, presumably tomorrow or the next day. It says here that I stated that I stopped at the CBSA office and advised them --
Judge:
And these -- and these questions -- I understand, Mr. Wolfe, are for state of mind. It seems like --
Fox:
Sure.
Judge:
-- he's on about what was in the knowledge -- what information was possessed by Constable Brown, and so I think -- I think it's appropriate that -- that he ask the question just for the purposes of determining what -- what state of mind Constable Brown has or what -- what knowledge that she would possess.
Wolfe:
Yeah, that's my sense of the question.
Judge:
All right. Go ahead.
Fox:
Should I rephrase it, then, as a question?
Judge:
Sure. No, you can go ahead.
Fox:
I'm just trying to think how I would phrase that.
Judge:
You could ask -- you could ask, "Were you -- were you aware of information provided in the -- in the interview with respect to 'X'?"
Fox:
Sure.
Fox:
Where or when did you become aware that I had stated in that interview with Constable Potts that I had stopped at the CBSA office and advised them that I was going to cross into the United States, as it says here in this document which was prepared by Constable Hawkins but then put into the system by you?
Brown:
I don't know that I can give a definitive answer in terms of when I would have known that information.
Fox:
Uh-huh.
Brown:
Whether it was in the week or the weeks following it. I'm aware of some aspects of that. I don't know if it's strictly from this document or from a briefing that was provided verbally about the interview or from the review of the transcript afterwards prior to that being disclosed. In some fashion, I would say within the weeks following your arrest by us on the outstanding warrant and you returning to Canada, I became aware.
Fox:
Right.
Brown:
I would say that that's fair. And in conjunction with the information that we had learned from Officer Gill about some attendance or presence at the CBSA building. Those two things directly related to a request that we made not all that long after for CCTV footage and a request for CBSA to confirm or not confirm whether that was the case or not.
Fox:
I'm going to suggest to you, if I could, that between yourself and Constable Hawkins who was monitoring this interview and hearing what I was saying as I was saying it, between the two of you, on April 4th, 2019, the day that I was brought back to Canada, collectively you were aware that I had some interaction with CBSA on March 15th?
Fox:
But, then, knowing that you still did nothing to try to get any kind of evidence of what --
Judge:
Well, the first part of your question is whether you agree that collectively you were going to call the police, the investigative agency. Somebody knew on April 4th that Mr. Fox was alleging that he had interaction with CBSA. Is that fair? Is that a fair statement?
Brown:
Fair.
Judge:
Okay.
Fox:
I suppose I'll move along then from that line of questioning. Are you familiar with the deportation -- or, sorry, a probation officer -- a deportation officer is an immigration customs enforcement officer from the U.S. What I meant to say was are you familiar with a probation officer by the name of Abeed Bhimji?
Brown:
Yes, I am.
Fox:
And are you the one that had spoken with him in the -- in this investigation?
Brown:
I did speak with him, yes, I did.
Fox:
Wonderful. When you were speaking with him, did he tell you that -- sorry, I think this might be close to a hearsay issue so I'm not sure how I should phrase this.
Judge:
It sounds like it, but it depends on the purpose of you asking the question, I guess.
Fox:
I'm trying to -- I'm trying to ascertain if he had told Constable Brown about certain statements that I had made to him, and I'm going to be questioning him on the same statements.
Judge:
And, again, if the purpose is to determine what was -- what information the police had possession of.
Fox:
Yes. What information they had and this would be even before I was brought back to Canada. So what information that they had that certainly would have been relevant in my mind to their investigation and whether or not they should have been trying to get some evidence of whether I was deported or left voluntarily.
Judge:
Okay. So your question is, what information Bhimji had passed onto the police with respect to what?
Fox:
Oh, with respect to statements I had made to him about -- related to citizenship and my intentions about CBSA and turning myself into them, et etcetera.
Judge:
Okay. Yeah, did -- had you received any information from Bhimji about -- about Mr. Fox's immigration status or citizenship? Is that any information that Bhimji had passed onto you?
Brown:
I would have to look at my notes to see if I made a specific reference to those --
Judge:
Okay.
Brown:
-- utterances from him.
Judge:
So you took notes while you were having a conversation with Bhimji?
Brown:
I did.
Judge:
Yeah. Okay, go ahead.
Fox:
I thank you for your assistance, Your Honour.
Judge:
And I'm just trying to paraphrase what I --
Fox:
Right.
Judge:
-- think you might be asking in a form I hope that is appropriate.
Fox:
When I was studying Canadian Law on the criminal harassment charge, I unfortunately ran out of money before I got to the point of reading about the Rules of Evidence.
Judge:
Quite frankly, you could take, and lawyers do, years and years of training in the Rules of Evidence and still not -- and still not be totally conversant with them. That's not -- that's not -- that's not an easy thing, not an easy task.
Brown:
I can't seem to find a specific reference to my conversation with Mr. Bhimji, but I believe I did detail it in the Report to Crown counsel narrative in the brief that we made contact with him.
Judge:
Okay, and would that --
Brown:
Is there a particular report or some notes that you --
Judge:
Do you have any recollection, Mr. Fox, of any details?
Fox:
I didn't see anything in the --
Brown:
Oh, sorry, sorry. I do have it here. March -- March 20th. Sorry, March 20th of 2019 at 1530 hours contacted the Vancouver Court office, probation officer Abeed Bhimji who was supervising Mr. Fox. I had left a message for him. He called back, and we discussed a breach for fail to report and -- and requested that he submit that one as soon as possible.
The discussion -- the gist of the discussion was when he had last reported, when he was next scheduled to report, and by the 20th Mr. Fox had not reported for the next directed appointment. And in discussing that with Mr. Bhimji, he was intending to forward that -- that breach allegation himself as it was based on his direction to report, and that was -- that was the conversation we had about that, that we would focus on the other breaches and he would focus on that one. And that's the -- that's the breach that was submitted that brought charge approval and the first-instance warrant issued --
Judge:
Right.
Brown:
-- that we then executed and --
Judge:
So no notes with respect to any conversation about immigration status or citizenship or anything like that?
Brown:
Not -- not in my notes.
Judge:
Okay.
Brown:
No. I -- I do believe that another officer had -- had spoken with P.O. Bhimji prior to myself and Constable Hawkins being assigned. So there may have been references to that. I may have learned that information through that report, early in that report as opposed to directly through probation officer Bhimji.
Judge:
And this previous officer, what was that officer's name?
Brown:
Constable Stadnick [phonetic].
Judge:
Stadnick, okay.
Brown:
Stadnick was an officer with the Investigative Support Team.
Judge:
Okay. And, Mr. Fox, do you have disclosure with respect to Mr. -- Constable Stadnick?
Fox:
Honestly, the name does not ring a bell, but that doesn't mean that I don't.
Judge:
Okay.
Fox:
It might not just be in my memory.
Brown:
That was a report that was submitted in supplementary disclosure after a request came for any other reports that hadn't been issued and disclosed. So a report from Constable Stadnick and a report from Corporal Hopkin [phonetic] were disclosed to Crown.
Judge:
Okay.
Fox:
In the course of your investigation, did you have the opportunity to review the transcripts from the hearings that I had to vary the probation conditions in February and March of this year?
Brown:
Did I review the transcripts from your probation variance hearings?
Fox:
Right. I had two hearings in February and March to try to remove the condition so that I could leave British Columbia. I'm just wondering if you had an opportunity to review those?
Brown:
No.
Fox:
No, okay. And you're aware that there's a website on line now -- well, to the best of my knowledge it's still on line right now; it was certainly at the time I was arrested -- which is substantially based on the original website that was the basis of the criminal harassment charge, correct?
Brown:
Yes, I'm aware that that website exists.
Fox:
And that's the desicapuano.com [phonetic] website. Have you been to that website? Have you seen it?
Brown:
I viewed it briefly once in the initial days of the investigation when we had been assigned.
Fox:
Okay. And when you were reviewing it, did you see the section that is called R. v. Fox and it has all the information about the original case and --
Brown:
There's a great deal of content --
Fox:
Yes.
Brown:
-- in that -- that website. So I --
Fox:
Yeah.
Brown:
-- reviewed it in brief. I had never seen it before so I wasn't particularly aware of what all it related to.
Fox:
Mm-hmm.
Brown:
Nor was I in a position to compare it to any other previous versions of it. So I did view it, and I can say that I viewed some parts of it and have some recollection on various parts of it but not in its entirety.
Fox:
Can you tell me why it is that some of the charges have stayed with the RCMP -- going too far?
Judge:
Yeah, I haven't heard your question yet.
Fox:
Okay.
Fox:
Some of the charges have stayed with the RCMP; other charges have been transferred to VPD specifically, not so much about a new charge of criminal harassment for the new website but a probation violation related to the new website being online.
Judge:
Okay.
Wolfe:
I do rise now.
Judge:
And I -- and I guess Mr. Wolfe is probably going to say something about relevance because we're dealing with particular breaches.
Fox:
Right. Fair enough.
Judge:
And that sounds like a different can of worms that different --
Fox:
Right, and from -- yes. Well, since they're all breaches on the same probation order, that's why I'm kind of confused about why the RCMP -- like, why is there one case dealing with all of these breaches but a completely separate investigation dealing with this other? I mean, it's the same probation order.
Judge:
Yeah.
Fox:
But --
Judge:
And the answer to that may be of great interest to you, but it's --
Fox:
Right.
Judge:
-- just not particularly relevant to the -- to the charges that we're dealing with.
Fox:
Okay. I believe that would be all the questions that I would have for Constable Brown.
Judge:
Okay.
Fox:
Wait, let me just do a quick --
Wolfe:
Please take your time.
Judge:
Yeah. If you want to take a few moments to review your notes and make sure you've asked Constable Brown everything you need to because she won't be back, I don't think. Mr. Wolfe, you're finished with her?
Fox:
Well, there are -- there are some questions that I had put to Constable Hawkins. Well --
Judge:
Have you been able to take these down with you, the -- the papers?
Fox:
Oh, yeah. Yeah, yeah.
Judge:
Okay. We could take an early break and you could review it if you want to or we could take five minutes and review it. It's up to you.
Fox:
I don't think that's going to be necessary.
Judge:
Okay.
Fox:
Constable Brown, I understand you've been in law enforcement for 19 years; is that correct?
Brown:
That's correct, yes.
Fox:
And that whole time with the RCMP?
Brown:
That's correct.
Fox:
The department that you work for, the high-risk offender unit --
Brown:
Yes.
Fox:
-- you had described that, and sorry, I was writing it down quickly or I might have written it down incorrectly, but I wrote down that it monitors offenders on probation. There's a little more to it than that, isn't there, or --
Brown:
There's a number of points within our mandate. Specifically we --
Fox:
Well, let --
Brown:
-- monitor offenders.
Fox:
Let me clarify a little bit more why I'm asking just so maybe it will be easier for you to answer. The name of the department that you're in, highrisk offender unit, seems kind of daunting to me. I don't consider myself a high-risk person. So I was just wondering if you might be able to clarify what that is about.
Brown:
I could give you some --
Fox:
What does --
Brown:
-- history on --
Fox:
-- your department specialize in or --
Brown:
-- how the unit came to me and what it was modelled after.
Judge:
Yeah, I'm not sure --
Brown:
But it's certainly --
Fox:
Okay.
Judge:
I'm not sure --
Brown:
-- a name that I didn't select and --
Judge:
I'm not sure if that's relevant.
Brown:
No.
Judge:
Again, it may be of interest to you because of the name of the unit, et cetera, but it's of -- it's of no input really to the --
Fox:
Mm-hmm.
Judge:
-- to the offence itself, the elements of the offence.
Fox:
Right, right.
Judge:
And I can tell you this, Mr. Fox, nor does it prejudice you in any way, you know, me having the knowledge that the high-risk offender unit was conducting the investigation. It has -- there's no -- there's no relevance to the name of the unit.
Fox:
Right. The reason that I have some concern about the name was because in some of the disclosure material, some of Constable Hawkins' notes early in the investigation give the impression that the RCMP was under the impression that there was reason to believe that I was going down to the U.S. to possibly harm or threaten Capuano, Miss Capuano.
Judge:
Again --
Fox:
And, so I was wondering if maybe it was related to that.
Judge:
Yeah, but it's not. It is neither here nor there the answer to that.
Fox:
I don't think I have any further questions then.
Judge:
Okay. Thank you, Mr. Fox.
Fox:
Thank you.
Judge:
Mr. Wolfe, anything arising from that?
Wolfe:
No.
Judge:
Okay. Thanks for coming --
Brown:
Thank you.
Judge:
-- Constable. I appreciate it.
Brown:
Thank you.
(WITNESS EXCUSED)
Wolfe:
I call Mr. Bhimji next, but there's some documents I need to enter through him, even though I've given document notice under s. 30 of the Canada Evidence Act. It will take me a few minutes to pull those out.
Judge:
Do you want to take a break now?
Wolfe:
If we could do that, and then it will -- rather than having people pace around waiting for me.
Judge:
Yeah, sure. We'll take the break now then, and we'll come back for Bhimji, the probation officer; is that right?
Wolfe:
Yeah.
Judge:
Do you want me to come back at -- how long does it take? I can come back at --
Wolfe:
Five after?
Judge:
Five after, okay.
Wolfe:
Yeah, something like that.
Judge:
Sure.
(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)
(PROCEEDINGS RECONVENED)
Judge:
Mr. Bhimji, is it?
Bhimji:
Yes.
Judge:
You can come on up over here. Thanks. Thanks. Mr. Fox is here.
Fox:
Thank you.
Wolfe:
Yes, Your Honour, the Crown's next witness is Mr. Bhimji.
ABEED BHIMJI
a witness called for the Crown, affirmed.
Clerk:
Please state your full name and spell your last name for the record.
Bhimji:
Abeed Bhimji, B-h-i-m-j-i.
Judge:
B-h-i-m-j-i. Okay, Mr. Bhimji, thank you. And you can always sit if it's more comfortable for you, okay?
Bhimji:
Okay, thank you.
Judge:
Yeah, you bet.
EXAMINATION IN CHIEF BY MR. WOLFE:
Wolfe:
Mr. Bhimji, you're here in court today to give evidence relating to an event which took place on March 19th, 2019, in the City of Vancouver. Do you recall that?
Bhimji:
Yes, I do.
Wolfe:
Now, you're a probation officer with Community Corrections; is that correct?
Bhimji:
Yes, it is.
Wolfe:
And your ministry is -- correct if I have it wrong -- Public Safety and Solicitor General?
Bhimji:
Yes.
Wolfe:
And part of your duties as a probation officer is that you manage or you manage -- you manage or administer programs and persons placed on probation orders; is that correct?
Bhimji:
Yes.
Wolfe:
Would that be a fair way to put it? The location where you work -- where you worked in March of 2019 was 275 East Cordova Street in Vancouver?
Bhimji:
Yes.
Wolfe:
Now, when you meet with someone who is bound by a probation order, first, is it okay to refer to them as a client?
Bhimji:
Yes.
Wolfe:
So when you first meet with a client, a person who is bound by a probation officer, are there intake -- can you use the word intake or first-meeting procedure?
Bhimji:
Yes.
Wolfe:
And that applies when -- whenever you get a new client, right?
Bhimji:
Yes.
Wolfe:
So do you then open up a file? Do you create a file for that person, a new client file?
Bhimji:
If the person is new to probation or Corrections, then we would create a file, but if it's a client who has a past history, we would just pull their file out of storage.
Wolfe:
So a probationer comes in and if -- if he or she is governed by an order, you will have a copy of that order; is that correct?
Bhimji:
Yes.
Wolfe:
And one thing -- one thing you do when you're meeting a client for the first time is to confirm the identity of the person before you so that you know that the person who is bound by the order is, in fact, in front of you. Do you agree with that?
Bhimji:
Yes.
Wolfe:
And -- and what do you do to do that?
Bhimji:
The general process is that when a client comes into the office, they provide their name to the admin staff. The admin staff record that person's name. They look up who their probation officer is, and then they contact the probation officer. Once the probation officer is contacted, I guess me in particular, I open up the client ID screen, make sure that the client's picture matches who is -- who is there, who is present, and then also review the notes from the last meeting.
Wolfe:
And these records are kept in the usual and ordinary course of your business; is that right?
Bhimji:
Yes.
Wolfe:
And they're reliable?
Bhimji:
Yes.
Wolfe:
So more particularly, did an individual you came to know as Patrick Henry Fox present himself to you?
Bhimji:
Yes, he did.
Wolfe:
And on that occasion, do you remember the first -- the date of the first meeting?
Bhimji:
March 12th, 2019.
Wolfe:
And that was at 275 East Cordova?
Bhimji:
Yes, it was.
Wolfe:
So did you access a Ministry of Public Safety and Solicitor General client profile report with a photo to confirm the identity of that person?
Bhimji:
Yes, I did.
Wolfe:
I'm going to show you a copy of a print-out and ask if you're able to recognize that document.
Bhimji:
Yes, this is the document that comes up.
Wolfe:
Does that appear to be a true and accurate copy of the business record you used to confirm that person's identification and the person you came to know as Mr. Fox?
Bhimji:
Yes, it is.
Wolfe:
I have a copy for the court.
Judge:
Okay. And what would you call that document?
Bhimji:
We call it the Client Profile Report.
Judge:
Okay.
Wolfe:
And the witness's copy will become the exhibit later, please.
Judge:
Okay, thank you.
Wolfe:
Additionally, in relation to a client, there are logs that are kept; is that correct?
Bhimji:
Yes.
Wolfe:
Now, the logs, they may contain a number of things, but with respect to the March 19th, 2019, date, did you take any steps to examine that log in relation to whether or not Mr. Fox reported that day?
Bhimji:
Yes, I did.
Wolfe:
And I just want to show you a copy of a document and ask you if you recognize that.
Bhimji:
Yes, I recognize it.
Wolfe:
And what is that?
Bhimji:
It's a -- it's a log note I made the day after the missed appointment indicating that Mr. Fox did not attend his appointment.
Wolfe:
And is that a record kept in the usual and ordinary course of your business?
Bhimji:
Yes, it is.
Wolfe:
And do you -- did you input that -- that data on there or not?
Bhimji:
Yes, I did.
Wolfe:
You did. Were you working that day, the 19th?
Bhimji:
Yes, I was.
Wolfe:
At 275 East Cordova?
Bhimji:
Yes, I was.
Judge:
So this Client Profile Report can be Exhibit 7 I think it is, and then the -- the Client Log can be eight.
Wolfe:
So when you first met -- and by the way, would you be able to recognize Mr. Fox if you saw him again?
Bhimji:
Yes, I would.
Wolfe:
And you met with him a total of how many times?
Bhimji:
Two occasions.
Wolfe:
Two occasions. And the second occasion was?
Bhimji:
March 15th.
Wolfe:
Okay. We'll come to that in a moment. But just this background for your ability to relate to the court whether or not you recognize Mr. Fox, you've indicated you met him twice, and he presented himself to you first on the 12th of March; is that right?
Bhimji:
Yes, it is.
Wolfe:
2019. And, so looking around the courtroom today, do you see Mr. Fox?
Bhimji:
Yes, I do.
Wolfe:
And where would that be, sir?
Bhimji:
He's seated at the defendant's table.
Judge:
Okay.
Wolfe:
And what is that person wearing?
Bhimji:
A red sweatshirt.
Judge:
I note that indication, thank you.
Wolfe:
Now, I made earlier mention of a probation order governing a person, and did you have a probation order to review with Mr. Fox?
Bhimji:
Yes, I did.
Wolfe:
And did you make a true and copy of that today?
Bhimji:
Yes, I did.
Wolfe:
Will you produce that, please? And you made this copy from the original copy you had in your file; is that correct?
Bhimji:
Yes.
Wolfe:
If we could have this entered as an exhibit, if I may, please. And there's a copy for the judge. The judge's copy is the one with the paperclip.
Judge:
Exhibit 9 is the probation order that was produced by Mr. Bhimji. And this is the one you say you reviewed with Mr. Fox?
Bhimji:
Yes, it is, Your Honour.
Fox:
I'm sorry, did we say that this, then, is Exhibit 9?
Judge:
This is nine, yeah.
Fox:
Thank you.
Wolfe:
So if we look at -- at that probation order, on the final two pages or on the final page appears to be a variation order; is that correct? Am I right on that?
Bhimji:
Yes, it is.
Wolfe:
So the original order dated November 10th, 2017, and then the variation was dated February 6th, 2019, does that show in your materials?
Bhimji:
Yes, it does.
Wolfe:
Okay. So the last two pages have a -- appears to be a stamp and some signatures on that; am I correct?
Bhimji:
Yes.
Wolfe:
Can you explain that to the court? What's going on there?
Bhimji:
Sure. Once an order has been reviewed with a client, the order is then stamped to indicate that the order was reviewed, any questions that were asked by the client. The two relevant sections of the Canadian Criminal Code were reviewed with the client and that he's signing it indicating that all those points have been met.
Wolfe:
Well, what's the purpose of the exercise? What are -- what do those sections refer to and what are you bringing home to the client when you have him sign that stamp? And by the way, can you read the stamped words out for --
Bhimji:
Sure.
Wolfe:
-- the record, please?
Bhimji:
So the stamp says [as read in]:
I have read and understand the contents of this document and acknowledge that I am the person to which the statements contained herein refer and agree that said statements are correct and further acknowledge that I have been made aware of the provisions of the s.733.1, 732.2 Criminal Code of Canada.
Wolfe:
Sure. And what is it you're bringing home to a client when you do that?
Bhimji:
We just advise the client the first part 733.1 which relates to non-compliance with conditions and the potential penalties for that. And, then, s. 732.2 gives the client the right to return to court and have any of the conditions varied.
Wolfe:
And it seems -- you said that you first met with him March 12th, 2019. Is -- am I reading it correctly that the date that this was signed is March 12th, 2019?
Bhimji:
Yes, that's correct.
Wolfe:
And does your signature appear where on that stamp?
Bhimji:
In the section that's titled "witnessed" and then it says "probation officer."
Wolfe:
So that's your signature, correct?
Bhimji:
Yes, it is.
Wolfe:
And, then, to the left?
Bhimji:
To the left that's where the client would sign.
Wolfe:
And whose signature is that?
Bhimji:
That's Mr. Fox's signature.
Wolfe:
Did you witness him sign that?
Bhimji:
Yes, I did.
Wolfe:
Did there appear to be any doubt in your mind -- well, do you review the terms with the client?
Bhimji:
Yes, I do.
Wolfe:
And you did that with Mr. Fox on the 12th of March?
Bhimji:
Yes, I did.
Wolfe:
Did there appear to be any doubt to you regarding whether he understood all of the terms?
Bhimji:
No, there was no doubt.
Wolfe:
Did he make -- did he express anything about the terms at all?
Bhimji:
I can't recall today.
Wolfe:
So did you have a reporting frequency established for Mr. Fox?
Bhimji:
Yes, I did.
Wolfe:
And as we know commonly, people on probation may report as directed, correct?
Bhimji:
Yes.
Wolfe:
And sometimes by court order there's a frequency of reporting; is that correct?
Bhimji:
Yes, there is.
Wolfe:
And sometimes you exercise your discretion to have a person report as frequently as you think he or she needs to; is that correct?
Bhimji:
Yes.
Wolfe:
So in Mr. Fox's case, did you establish a regimen for him reporting?
Bhimji:
Mr. Fox was transferred to me, and the previous person had already established that regimen and so I just maintained it.
Wolfe:
And what was that?
Bhimji:
It was every four days, and so we were doing Tuesdays and Fridays.
Wolfe:
Was there a set time or not?
Bhimji:
The time -- the time was flexible with the client, but early morning was preferred.
Wolfe:
And -- and so after this initial session or during this initial session, did you establish the next reporting date?
Bhimji:
Yes, I did.
Wolfe:
And how did you go about doing that?
Bhimji:
I provided an appointment slip with the current date, and then the date of the next appointment.
Judge:
That was on the 15th?
Bhimji:
Yes, it was, Your Honour.
Wolfe:
And that was on your second reporting -- your second meeting with him, right?
Bhimji:
Yes.
Wolfe:
So do you have a copy of the appointment slip that you gave him that day on the 15th?
Bhimji:
I have photocopies I just made.
Wolfe:
Yes. Are these true and accurate copies of your original copy of that slip?
Bhimji:
Yes, they are.
Wolfe:
And, so I'll keep one to be entered as an exhibit.
Bhimji:
Okay.
Wolfe:
And I have one for Mr. Fox, and then I have one for the court. So if you'd be good enough, please -- that's for His Honour.
EXHIBIT 10: Appointment reminder dated March 15, 2019, re next appointment March 19, 2019, photocopy
Wolfe:
If you would be good enough, please, just to take us through the drill you go through for setting out an appointment for a client, and more particularly what you did this day -- that day with Mr. Fox?
Bhimji:
So on this day, given Mr. Fox has structured reporting based on his order, we just maintain the same schedule of the Tuesday and Friday. So I wrote the current date which is March 15. I wrote his name. I wrote my name. I wrote the date of his next appointment. I ticked off the in-person button and then the time of the appointment. I signed it and then he signed it, and it's -- it's a carbon copy. So one -- one piece of the appointment slip went to Mr. Fox, and I kept the other piece.
Wolfe:
As I understand it, is it true that they used to be multi-coloured?
Bhimji:
I have a copy of the slip here. White for the client.
Wolfe:
Yeah.
Bhimji:
And yellow for us.
Wolfe:
Yellow for you. So he gets the white one?
Bhimji:
Yes.
Wolfe:
You actually give him the hard copy?
Bhimji:
Yes.
Wolfe:
So that day you gave Mr. Fox the hard copy?
Bhimji:
Yes, I did.
Wolfe:
So on the 15th of March, after you gave him his next reporting date, did he attend on the 19th of March --
Bhimji:
No, he did not.
Wolfe:
-- 2019? Pardon me?
Bhimji:
No, he did not.
Wolfe:
And he was to report at 275 East Cordova, correct?
Bhimji:
Yes.
Wolfe:
In Vancouver. So the log that was entered as an exhibit, the Client Log, what's the -- the entry that you typed in on that one?
Bhimji:
[As read in]:
Client failed to report as directed on March 19th, 2019, at 8:30 a.m.
Wolfe:
Okay.
Judge:
And you're looking at Exhibit 8 right now?
Bhimji:
Yes, Your Honour.
Judge:
Yeah, okay, thanks. Now, this client reporting slip, that's 10? Is that Exhibit 10, Madam Registrar?
Clerk:
Yes.
Judge:
Okay. Thanks.
Wolfe:
That entry from that log that you read out, correct me here if I'm wrong. I understood earlier that you indicated that you type that in yourself; is --
Bhimji:
Yes, I did.
Wolfe:
-- that so? Now, you said here earlier that you worked at 275 on the 19th of March. What were your office hours that day?
Bhimji:
My office hours were from 8:00 to 5:30.
Wolfe:
And throughout the day, then, Mr. -- you said 8:30 on that slip, but through the day did Mr. Fox appear later -- at a later time that day?
Bhimji:
No, he did not.
Wolfe:
May I please have Exhibit 2 and Exhibit 9 before the witness?
Judge:
Exhibit 2 --
Wolfe:
Two and nine.
Judge:
-- the probation order.
Wolfe:
Yeah. Two is the issue [indiscernible] certified.
Judge:
Yeah.
Wolfe:
So I just want to make sure we're looking at the right thing here.
Wolfe:
So, witness, I'd like you to take a moment, please, and if we look at --
Judge:
Hang on just for a minute, Mr. Wolfe. Are we picking up Mr. Wolfe?
Clerk:
Yes.
Judge:
You got him? Okay.
Wolfe:
Thank you for that.
Wolfe:
If we look at Exhibit 2 for a minute, it appears to be a probation order dated November of 2017; is that correct? November 10, 2017? And the variation as well. The -- the November 10th, 2017, date is on the first page, on the first page on the bottom -- bottom left. Do you see that?
Bhimji:
Yes.
Wolfe:
And the document which you had Mr. Fox sign, does that appear to be a copy of that Exhibit 2 that you just looked at?
Bhimji:
Several pages, yes.
Wolfe:
Yes. Are the terms of the conditions in Exhibit 2 the ones you reviewed with Mr. Fox on your own copy?
Bhimji:
Yes, they are.
Wolfe:
And do the -- do the court file numbers match up?
Bhimji:
Yes, they do.
Wolfe:
Is the date of the order the same on each one?
Bhimji:
Yes, it is.
Wolfe:
Thank you. And the name is [inaudible] Patrick Henry Fox; am I right on that?
Bhimji:
Yes.
Wolfe:
The date of birth should be -- does that appear to be the same, November 24th, 1973?
Bhimji:
Yes.
Wolfe:
After the 19th of March, sir, did -- did you have occasion to hear from Mr. Fox?
Bhimji:
No, I did not.
Wolfe:
And just to be abundantly clear about that, in any manner at all, email, text, mail, post, phone call, in person, nothing?
Bhimji:
No, no contact.
Wolfe:
Now, if we look at Condition… 9 of the November 10th, 2017, order, Exhibit 2, but let's use the copy you put to Mr. Fox. I'll ask you to confirm the contents are the same, but it's a -- if we look at Condition 9, let me read this out and see if you agree that I'm reading it correctly. [As read in]:
You must not leave British Columbia unless you have the written permission of the probation officer, and you must carry the permission when you are outside the province.
Does that appear to be Condition 9 on your copy and also on Exhibit 2?
Bhimji:
Yes.
Wolfe:
At any time, did you give Mr. Fox permission to be outside the Province of British Columbia?
Bhimji:
I never provided any written permission.
Wolfe:
And more particularly, did you give him -- I have your answer, but just to put a fine point on this, if I may. Did you give him written permission to be outside the Province of British Columbia on March the 15th, 2019?
Bhimji:
No, I did not.
Wolfe:
And did you see -- when you saw Mr. Fox on the 15th of March, 2019, did he relay any information to you regarding any court appearances?
Bhimji:
Not that I can recall.
Wolfe:
I don't know if you keep logs indicating the duration of meetings with clients. I understand, correct me, that the duration of a meeting with a client may be only a few minutes or may be considerably longer than that. Is that -- is that true?
Bhimji:
Yeah, that's correct.
Wolfe:
Is there any way for you to advise the court how long you met with Mr. Fox on the 15th of March, 2019?
Bhimji:
I do recall it being a bit longer of an appointment than with other clients.
Wolfe:
Was there a reason for you being able to remember that or what led to it being a longer appointment?
Bhimji:
I just remember speaking with Mr. Fox, sort of, about his situation and just talking a little bit more about it than we had at the previous session.
Judge:
That was March 15th?
Bhimji:
March 15th, that's correct.
Wolfe:
Did -- did he appear to be alert and responsive to you when you met him on the 15th of March?
Bhimji:
Yes, he was.
Wolfe:
At any time did he indicate he would not be appearing on the 19th of March?
Bhimji:
No, he did not.
Wolfe:
Do you recall whether or not Mr. Fox indicated on the 15th of March what his plans for the day were?
Bhimji:
I do not recall.
Wolfe:
Those are my questions.
Judge:
Could you answer any questions Mr. Fox has of you. Mr. Fox.
Fox:
I do have some questions; however, I have a bit of a concern that I had -- that I had -- sorry -- that I had expressed to Mr. Wolfe a little while ago about, since I'm unable to make photocopies at the jail, I haven't been able to provide any copies to the court of the material that I've been putting before the witnesses. Mr. Wolfe had suggested that maybe he might be able to assist me with that. And, certainly I have some material here that I would want to put before Mr. Bhimji.
Judge:
I mean, you might -- you might not need to enter it. If you're asking Mr. Bhimji questions and he -- he provides the answers that -- that you expect him,
what kind of documents do you want to enter?
Fox:
Well, I mean, right now it's what's called Client Logs --
Judge:
Yeah.
Fox:
-- entries in here. So maybe these might not be critical for you to have when you're considering the matter later. But, for example, when I was speaking with Constable Brown, there were some documents in the disclosure material here that might be beneficial or helpful for the court to have in the file.
Judge:
Okay. I guess it all depends on what purpose you want to put the -- the document there. If it's to -- if it's just -- if it's to point a witness to where their note -- a place in their notes, well, I don't really need to see that, but -- and I guess it all depends on what kind of answer. If you get an answer you don't expect and it's part of your disclosure, well, you may -- it may be a different story but…
Fox:
Right. But maybe we can address this issue afterwards.
Judge:
Yeah, or as it comes up, you know, as -- as it arises.
Fox:
Okay.
Judge:
Do you want to -- do you want to start with this witness and see how it goes?
Fox:
I'm just thinking how I'm going to do this because I'm going to be asking him about particular entries that he had made, what are called C-log entries and how that relates to testimony that he had just made. But since I only have the one copy, it will be difficult to give him copies that he can review, unless you have access to your C-log entries right now.
Judge:
Do you have your log entries?
Bhimji:
I do not.
Fox:
Okay.
Judge:
All right. So you --
Fox:
I mean, I don't mind going back and forth, as I did with Constable Brown. I'm okay with that if necessary.
Wolfe:
I wouldn't mind having a look at the document he's putting to the witness anyway.
Judge:
You'd like to have -- I mean, you obviously have copies, but you'd like to have the --
Wolfe:
Not necessarily those.
Fox:
Well, no, I didn't receive these through disclosure. I received these independently.
Wolfe:
No, I don't have those.
Judge:
All right, okay. So these are documents you may put to the witness to cross-examine him with?
Fox:
Yes. I mean, I'm more than happy to give you them and you can make a photocopy.
Wolfe:
How many pages?
Fox:
Well, of the C-log entries, it says 17 but it's only the last few pages that pertain to Mr. Bhimji because Brandon Cowen [phonetic] was the probation officer for all these ones so I can't really question him about any of those. And --
Wolfe:
Your Honour, why don't I just make three copies?
Judge:
Mm-hmm.
Wolfe:
I'll just run down. It's 17 pages. It won't be very long.
Judge:
Okay. Do you want to do that?
Fox:
Well, I feel kind of bad standing down so frequently.
Wolfe:
No, no, this will be fast.
Fox:
Okay.
Wolfe:
We have a photocopier on the fifth floor. It's just down --
Judge:
It's not -- it's not a problem. I mean, we want to -- we want to make sure that the record is as full as it possibly can be.
Fox:
Okay. There's some stuff I would like to ask him about, but, well, I don't know that it's directly relevant to this so I'll save it for a later date.
Wolfe:
Okay.
Judge:
And it seems that -- it seems to me Mr. Bhimji is here for Count 1.
Wolfe:
That's right.
Judge:
And --
Wolfe:
And, also for --
Judge:
-- he may have information about --
Wolfe:
More than Count 1 actually because he also relates to Count 2.
Judge:
Okay. Right. Well, he did -- he gave -- he gave the evidence that he hadn't provided some permission.
Wolfe:
That's correct, yes.
Judge:
Okay. Well, you can just get those copies. It won't take more than a few minutes.
Wolfe:
Sure.
Judge:
Do you want to do that?
Wolfe:
Sure.
Judge:
How long do you think you'll be, Mr. Wolfe?
Wolfe:
Under five minutes.
Judge:
Is it okay if -- if Mr. Fox stays here? Okay. I'll just be out the back here.
Fox:
Thank you, Your Honour.
Judge:
We'll stand down for a few minutes.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
ABEED BHIMJI
recalled.
Wolfe:
Wolfe, initial B., for the Provincial Crown. Recalling Fox, Your Honour.
EXAMINATION IN CHIEF BY MR. WOLFE, CONTINUING:
Judge:
Thanks, Mr. Wolfe. I just want to make sure. I've got Exhibit 2 and you were going to ask some questions about Exhibit 9. Nine is the order that you reviewed with Mr. Fox. It looks like it has more pages to me.
Fox:
That's correct.
Judge:
It does, okay. So how many pages does the -- my copy of Exhibit 9 have? One, two, three, four, five pages. Does that make sense?
Bhimji:
This one has four?
Wolfe:
Four.
Judge:
Oh, that one has four?
Bhimji:
It's missing a page, Your Honour.
Judge:
Okay. Let's -- let's enter the one that has -- maybe I should pass down my copy and you can tell me whether this is the one that you reviewed with him. And we can just get another copy of it.
Bhimji:
Yes, Your Honour, this is correct.
Judge:
That's the one?
Bhimji:
This is correct.
Judge:
Okay, okay. Do you want to -- can we make sure that the Exhibit 9, the probation order --
Wolfe:
That's the one reviewed with Mr. Fox.
Judge:
That's the one reviewed with Mr. Fox, but as a five-page document.
Bhimji:
Yes, the --
Judge:
Mr. Fox, does your -- does your copy of Exhibit 9 have five pages? We're missing -- one of the pages is missing from one of the copies.
Fox:
This has five.
Judge:
Five, okay. Everyone has five except for the -- the actual exhibit. So let's replace -- do you have a problem with that, Mr. Wolfe, with just replacing the --
Wolfe:
The stamp is more legible on the one that's marked as an exhibit.
Judge:
Oh, it is.
Wolfe:
Yeah, it is.
Judge:
Yeah, okay. Can we add the missing page as Exhibit 9A or whatever and make it a --
Wolfe:
Can do.
Judge:
-- and make it a fulsome copy?
Wolfe:
Oh, sure.
Judge:
Okay. So which page is missing? That's the one?
Bhimji:
Your Honour, it's this page.
Judge:
Okay.
Bhimji:
This is a copy I made for the court.
Judge:
Oh, it is.
Bhimji:
I just made a couple copies just in case.
Judge:
All right. Hand me back mine, then, and we'll add that one as Exhibit 9A which is -- which is the -- to make 9 full. Okay. Does that work, Madam Registrar? 9A is the -- is the -- what -- what page is that? Actually, that's the front page, is it?
Bhimji:
Your Honour, Conditions 1 to 9.
Judge:
One to nine. Oh, that's my page 2 which is the back of that page there, okay. So 9A is the Conditions 1 to 9. All right.
EXHIBIT 9A: One double-sided page of probation order for Patrick Henry Fox which lists Conditions 1 to 9
Judge:
All right. That makes the -- the document full then. Okay, yeah, go ahead. Mr. Fox, do you have some questions with respect to some documents you have, right?
Fox:
Yes. Yes, and Mr. Wolfe was kind enough to make the photocopies, and I guess I will be relying on those in a moment, and I can provide them right now or I can provide them when they become necessary in a few questions.
Judge:
Sure. Just go ahead with your questions. I mean, it might be that Mr. Bhimji recalls everything you ask him about that.
Fox:
Sure.
Judge:
You may have to refresh his memory.
CROSS-EXAMINATION BY THE ACCUSED:
Fox:
Well, my first question would be, do you recall on March 12th, that was one of the dates that I had reported, I believe? Well, let me take a step back. No, no, that's fine. Okay, so on March 12th I had reported. Did I inform you at that time that I expected that I was going to be deported in the new future?
Judge:
Okay. And this is -- again, I think the purpose of your question is simply to establish what information may be in the possession of Mr. -- Mr. Bhimji.
Wolfe:
And if I may query, I understand that part, information receivable to a person not for the truth of its contents.
Judge:
Yes.
Wolfe:
But the second step has to be for what purpose.
Judge:
Right. And I think that -- the purpose was -- may become relevant depending on the conversations Mr. Bhimji had with investigating officers. But for the fact that it was said, are you able to remember that?
Bhimji:
I can't recall.
Judge:
Okay. And did you make -- do you make logs notes of your conversations with a client?
Bhimji:
I do.
Judge:
And is that what you're referring to, Mr. Fox?
Fox:
That is. And, so at this point --
Judge:
Can you -- can you point Mr. Bhimji to the place where you were talking about? And that might --
Fox:
It's okay if I --
Judge:
-- refresh your memory. Yeah. Okay.
Fox:
And I have another copy here.
Judge:
So you're passing to Mr. Bhimji what?
Fox:
Well, this --
Judge:
Just describe it?
Fox:
It's --
Judge:
And you -- and you can pass up a copy if you want.
Fox:
It's a few-page excerpt from what's called a Client Log.
Judge:
Okay. Is that -- is that a document -- how many pages are we talking about?
Fox:
Just three double-sided pages.
Judge:
Three double-sided pages. Is that a document that -- that you recognize, Mr. Bhimji?
Bhimji:
I do, yes.
Judge:
Okay. And if you could -- you just point Mr. Bhimji to the part you're talking about, Mr. Fox, and --
Fox:
Sure.
Judge:
-- he can read that silently, and that might -- that might refresh his memory as to what you're talking about.
Fox:
So the first page is page 13. Up in the top right corner it says page 13 of 17. And at the bottom of that page, there's an entry with the date and time and 2019-03-12, the time is 08:39:34?
Judge:
08:39:34 at the bottom of the page 1 -- bottom of page 13.
Fox:
Yeah, so the entry starts there. The first paragraph is just boilerplate. It's the previous probation officer had put in there. So that's not the part that we're really interested in. But if you flip to the next page where it continues on, the second full paragraph in there that starts with "client reports no changes"?
Bhimji:
Okay.
Judge:
If you could just read that to yourself, Mr. Bhimji, and then you can ask the question again, Mr. Fox.
Fox:
So on March 12th, did I state to you that I expect that I'm going to be deported in the near future?
Bhimji:
Yes, you did.
Fox:
Okay. And did I also state at that time on March 12th that I was hoping to get the probation conditions changed so that I would be able to leave British Columbia legally?
Bhimji:
Yes, you did.
Fox:
Okay. And did I inform you or did I state to you on March 15th that I was intending to turn myself in to CBSA by the coming Wednesday, which would be of the following week, in order or with the expectation of being deported?
Bhimji:
Yes.
Fox:
Okay. And, so then I understand that at some point you had some communication with Constable Brown of the RCMP? I'd have to check my notes to see what the date -- oh, actually, it's in here. I believe it would have been somewhere around the 21st or 21st to 25th, in that area.
Judge:
Around March 23rd?
Fox:
Oh, yes, I'm sorry.
Bhimji:
Yes, I had contacted.
Fox:
Okay. Do you have much recollection of that communication that you had with her?
Bhimji:
Slight.
Fox:
Do you remember if you had informed her that I had told you that I was intending to surrender myself or turn myself in to CBSA or that I was expecting to be deported?
Bhimji:
I may have.
Fox:
Unfortunately, you don't have any notes on that, I suspect? Okay.
Judge:
The answer is… ?
Bhimji:
Sorry. No.
Judge:
You don't have any notes on it?
Bhimji:
Not in front of me.
Judge:
Okay.
Fox:
Right. But the important question was whether or not you recalled informing her of me telling you about that?
Judge:
And the answer was you may have but you don't specifically recall?
Bhimji:
I don't specifically. I had several conversations with the constable so I don't remember the contents of each specific one.
Judge:
Okay.
Bhimji:
But I would have relayed what Mr. Fox had relayed to me.
Judge:
Okay. At some point?
Bhimji:
At some point, yes.
Fox:
Oh, well, let me ask the question a little more generally then, rather than specifically with Constable Brown. In your recollection with any of the communication that you had with any of the law enforcement officers relating to any investigations going on recently, have you stated to them that I stated that I expected to be deported or that I intended to turn myself in to CBSA?
Wolfe:
I just rise only because the question is just so generally framed.
Fox:
Sorry, it was a little --
Wolfe:
There isn't enough focus there, I think.
Judge:
The question I think is generally that you spoke to a few investigators.
Bhimji:
Yes.
Judge:
Do any of those folks you spoke to -- the suggestion is that you relayed to at least one of those you spoke to investigators what Mr. Fox had told you about his immigration status and about his -- his intention to turn himself in?
Bhimji:
Yes.
Judge:
Right.
Fox:
On March 19th when I didn't report, were you aware at that time that I was in custody?
Bhimji:
No, I was not.
Fox:
When did you become aware that I was in custody?
Bhimji:
I cannot recall.
Fox:
Okay. What -- what would the general practice be in the probation officer in your office, if a person is required to report but then they get arrested and they're in custody, if you're aware that they're in custody, what's the usual procedure then? Would you notify somebody? Would a warrant be issued for them? What would you normally do in that case?
Bhimji:
I would advise Crown that the client failed to report but was in custody.
Fox:
And I take it, then, the Crown, I guess, would make the decision about how to proceed. Okay.
Bhimji:
Yes.
Fox:
And how long have you been a probation officer?
Bhimji:
For five years.
Fox:
Five years, thank you. Now, earlier, the Crown did ask you about -- and you had responded that after March 19th, after not reporting, he had asked if you had received any communication from me, an email, I think a telephone call, a letter of some other thing, and you had responded that you hadn't. Sorry, I'm just thinking of how to word this -- this question. Would you consider it reasonable if a person is in custody or has been detained in a foreign country that they would not contact you? Maybe they -- that's why I'm having trouble thinking how to word it.
Wolfe:
I'm not sure that that's a question that can be answered by the witness. I'm not sure what the value of the question is either.
Judge:
Well, I suppose it goes back to general practice. The practice is to advise the Crown that the client is in custody essentially. That's your practice, is it?
Bhimji:
Your Honour, if -- if a client fails to report if they were in custody, I usually advise Crown about their reporting as we can't submit a breach, but I would send an email or something to Crown and say, "Hey, just to let you know, this person hasn't been reporting."
Judge:
So you would not submit a breach in that circumstance?
Bhimji:
If I knew -- if I could see on our system that the individual was in custody at the time of the missed appointment, no, I would not.
Judge:
Okay.
Fox:
Under the conditions of my probation, I am required to obtain your permission to leave the Province of British Columbia; is that correct?
Bhimji:
Yes.
Fox:
Okay. Am I required to obtain your permission to turn myself in to CBSA for the purpose of being deported, as long as I don't go within a hundred metres of the border and as long as I do it within Canada or within British Columbia, sorry?
Bhimji:
No, I don't believe you need my permission to do that.
Fox:
Okay. And do I require your permission or would I require your permission in order to be deported? I mean, once I'm taken into custody by CBSA, would I be expected to notify you and say, "Hey, may I have your permission to be deported from the country?"
Bhimji:
No, you would not.
Fox:
Okay. Now, earlier the Crown had asked you about -- the Crown had asked you if you remember me telling you anything about court on March 15th, when I reported on March 15th if I had said anything to you or informed you? I can't remember exactly how the Crown had worded it. But essentially if I had --
Judge:
Mentioning court appearances you're saying?
Fox:
Right.
Judge:
Okay.
Fox:
If I had mentioned --
Judge:
On -- on March 15th?
Fox:
-- court appearances.
Fox:
Your response to that was that, no, I hadn't.
Judge:
Do you recall providing that evidence?
Bhimji:
Yes. I believe I said I did not recall but…
Judge:
Okay.
Fox:
May I turn your attention to page 14 of 17 of the Client Log. The second entry -- I guess the third entry but it's the second one that starts on that page at 09:07:34 in the morning. One, two -- the second -- in the second paragraph on the last sentence in that paragraph, did you write that or…
Bhimji:
Yes, I did.
Fox:
So do you agree that it states there that I did inform you that I had court on the day before and that I was unable to have the conditions changed?
Bhimji:
Yes.
Fox:
Would you agree that that is contrary to what you had just testified?
Bhimji:
Yes.
Fox:
Okay. And, also on direct-examination, the Crown asked you if I had given any indication that I would not appear on March 19th, and you answered in the negative, I believe. You had said that, no, I did not provide any such indication?
Bhimji:
Yes.
Fox:
Again, I'm paraphrasing. I can't remember the exact wording.
Bhimji:
Yes.
Fox:
Sorry, it's taking me a moment to find it in here. So in that same entry, in the same paragraph, in fact, that starts with R I P. The first sentence of that after R I P, would you say that it's reasonable to say that that is an indication on my part that I was intending to turn myself in to CBSA for the purpose of being deported from Canada?
Bhimji:
I believe my note says "is considering."
Fox:
That is what your note says, yes. But would that not be an indication?
Bhimji:
Yes.
Fox:
Do you, Mr. Bhimji, have any personal knowledge or first-hand knowledge about where I was born or what my citizenship is?
Bhimji:
Only knowledge, only personal knowledge from what I have gained from speaking with you.
Fox:
With me, okay. And what did I tell you in that respect? No?
Wolfe:
I really have to wonder what this is about.
Judge:
Okay, yeah. This question sounds like it might be for the truth of its content.
Fox:
Okay.
Judge:
Yeah. And it's --
Wolfe:
I mean, I've caught the drift so far on the cross-examination. That's fine. I think we just moved to a different place.
Judge:
Yeah, well, fair enough. You don't have any direct knowledge of what -- other than what -- other than what Mr. Fox has told you, you don't have any other knowledge of his citizenship?
Bhimji:
No, I do not.
Judge:
Okay.
Fox:
Do you recall ever expressing any belief or opinion on that topic in any of you --
Wolfe:
That is not relevant.
Fox:
I'll withdraw that.
Judge:
Fair enough.
Fox:
I have no further -- sorry, let me just double-check to be sure but I don't think I have any further questions.
Fox:
I'm hoping this is in line, but I'm sure the Crown will stop me if it's not.
When you spoke with the police regarding me not reporting or any other matters that you spoke to them about regarding me, did you believe at that point that I had left the country or now that I -- well, yeah, left the country is fine.
Wolfe:
Relevance.
Judge:
Yeah, and the reason you're asking this question is, Mr. Fox? What's the -- so the question is, when you spoke to police, did you have any reason to believe that Mr. Fox was not in the country? And when you say when he spoke to the police, what dates are you referring to?
Fox:
Well, I'm not sure of the exact dates that he spoke to the police.
Judge:
It was before March 15th?
Fox:
Oh, no, no, it would have been after, after the investigation into all of this began and the RCMP and other police got in contact with him. I'm trying to think of how I could explain my motive and my reason for asking this. That's okay, I'll just -- I'll just withdraw that.
Judge:
Well, if you want to take a moment to think about it then…
Fox:
Well… see, I'm -- I'm thinking since I was so open with the probation officers about my intentions to turn myself in to CBSA and to be deported and about my communications with CBSA, I would have to think that it would be reasonable for them to suspect or to believe when I didn't report that I had actually left the country. And I would wonder why it is that they would not relay that information to the police.
Wolfe:
That calls for a huge degree of speculation --
Fox:
Fair enough.
Wolfe:
-- and a million possible answers to the question.
Judge:
Well, but it is a fair question, I guess, to ask, when you spoke to the police about the -- there was a conversation you had with the police about the failing to report?
Bhimji:
Yes.
Judge:
And do you have any recollection during those -- that conversation -- I guess you've already answered this about providing information to them about possible whereabouts of Mr. Fox, giving the information that you could pass onto --
Bhimji:
No, I do not.
Judge:
Okay. Okay.
Fox:
One final question. In these C-logs, there's something called Collateral Summary in the typed column?
Bhimji:
Yes.
Fox:
What is a Collateral Summary? What's meant by that?
Bhimji:
That would have been me speaking with the police agencies. They would be the collaterals.
Fox:
Oh, interesting. All right. No further questions.
Judge:
Okay. Thanks, Mr. Fox. Is there anything arising from that, Mr. Wolfe? And I'm going to pass this back. This is just -- I don't think this document necessarily to be entered as an exhibit. I think it was just used as an aidememoire to sort of refresh memory, but I'm in your hands, Mr. Fox and Mr. Wolfe. Mr. Fox, this document, this is the log, Client Log essentially. Are you seeking to have this document entered as a -- as an exhibit?
Maybe I'll ask -- maybe I'll ask Mr. Bhimji. This is your note essentially, is it?
Bhimji:
It's a combination of my notes and the previous probation officer's.
Judge:
And the previous probation officer. All right.
Fox:
To clarify, it would be Mr. Bhimji's notes from March 12th onward, and then prior to March 12th was the previous probation officer.
Judge:
That's -- that's fair, is it?
Bhimji:
Yes.
Judge:
Mr. Fox -- I'm sorry, Mr. Wolfe, do you have any input on whether this document should be entered or not?
I suppose, Mr. Bhimji, on March 12th forward, you made those notes. Have you reviewed them for their accuracy?
Bhimji:
I did review them initially prior to our Crown interview.
Judge:
Okay. And are you satisfied the notes that you made from March 12th onwards are accurate as far as your involvement in this matter?
Bhimji:
Yes.
Judge:
Okay.
Fox:
I -- I don't think that it's -- well, I don't know that it would be particularly beneficial for Your Honour to have it or that it would make much difference. But I'm --
Judge:
Well, it won't --
Fox:
-- I'm wondering if they should --
Judge:
-- it won't if --
Fox:
-- become part of the record.
Judge:
-- you've asked the questions that you want to ask about the information you want to elicit. Otherwise, it's just -- it's just superfluous information quite frankly. But are you satisfied you've got -- you've elicited the information you want to elicit?
Bhimji:
Yes, as long -- yeah. The information will appear in a transcript, if necessary, so -- and it will be on the DAR.
Judge:
Okay, well, I'll pass that back then. All right. Is there any --
Fox:
Thank you.
Judge:
-- any re-examination of this witness?
Wolfe:
Maybe briefly. This is what I'm thinking. Maybe the log should be entered. It just depends on where we go after this.
Judge:
Mm-hmm.
RE-EXAMINATION BY MR. WOLFE:
Wolfe:
Do you have the log in front of you?
Judge:
Okay. Now, do you have mine there? I'll take it back.
Fox:
Okay.
Judge:
You're going to ask some more questions on it. Thanks.
Wolfe:
Page 14 of 17, please, second full paragraph. Do you see it begins with "since client reports"?
Judge:
The second full paragraph?
Wolfe:
Client reports --
Judge:
Client reports, okay.
Wolfe:
-- page 14 of 17.
Wolfe:
Do you see that, Mr. Bhimji?
Bhimji:
Yeah.
Wolfe:
Okay. That's your entry, correct?
Bhimji:
Yes.
Wolfe:
And this was -- this paragraph was reviewed by you during your cross-examination by Mr. Fox, correct?
Bhimji:
Yes.
Wolfe:
And you were -- and this was actually -- the contents of this paragraph were put to you; is that correct?
Bhimji:
Yes.
Wolfe:
What's chronical here is information received from you by Mr. Fox; is that correct?
Bhimji:
Yes.
Wolfe:
So the truth or accuracy of the information recorded, is that determined by you or are you simply scribing what the client tells you?
Bhimji:
I'm simply scribing what the client tells me.
Judge:
What does PCM stand for?
Bhimji:
Primary case manager.
Judge:
That's you?
Bhimji:
Yes.
Wolfe:
So similarly if we look at page 14 of 17 and the entry dated 2019-03-15 at 9:07:34 on the second paragraph beginning R I P standing for reporting person?
Bhimji:
Yes.
Wolfe:
[As read in]:
Client reports he remains at Yukon.
And the rest of it up to [as read in]:
Turning self in -- himself in to CBSA on Wednesday to get deported.
That again is something you're writing simply based on the information he's giving you, not something you -- you had -- had you independently determined whether that's true or not?
Bhimji:
No, I had not.
Wolfe:
The last entry -- just going back up to the -- the first section I directed your attention to. "Client reports no changes," we're back at that paragraph. Do you see that?
Bhimji:
Yes.
Wolfe:
That last sentence [as read in]:
Client reports once he's back in the States, he has no plans to return to Canada and sure he will not be let in if he tries.
That -- that was information received from Mr. Fox?
Bhimji:
Yes, it was.
Wolfe:
Was it sounded out or tested by you or determined to be true or false?
Bhimji:
No, it wasn't.
Wolfe:
There's a reference to enforcement proceedings. How did that come to be phrased, enforcement proceedings? It's the bottom sentence. [As read in]:
Asked to contact primary case manager should his CBSA enforcement proceedings be moved ahead.
What was that coming from?
Bhimji:
As Mr. Fox relayed that he was going to attend CBSA, I just probably used his wording. I'm not familiar with CBSA so I don't know exactly what the procedure would be.
Wolfe:
Do you know -- did you then know or find out later if there were enforcement proceedings?
Bhimji:
No, I did not.
Wolfe:
Those are my questions.
QUESTIONS BY THE COURT:
Judge:
Mr. Bhimji, do you -- do you record those conversations? Are you typing on your computer as you're talking or do you have like an audio recording or how do you make these notes?
Bhimji:
As I'm meeting with the client, I write down notes in my book.
Judge:
You're typing it down -- you write it down it by hand?
Bhimji:
I write it down my hand.
Judge:
And, then -- and then transfer it to a typed form?
Bhimji:
Yes.
Judge:
Okay. All right. I think we should enter this because there has been lots of questions on it.
Wolfe:
I agree with that.
Judge:
Exhibit 11. Okay.
Judge:
Thank you. And your entry log is from March 5th -- 12th on?
Bhimji:
Your Honour, I can be identified by the A151239.
Judge:
You are A151239.
Bhimji:
When it says "user" --
Judge:
Yes.
Bhimji:
-- that's my user ID.
Judge:
Okay, thanks. So your first entry is the one at the bottom of page 13?
Bhimji:
Yes, that's correct.
Judge:
Okay. Okay. Done. Okay, Mr. -- Mr. Fox, anything -- anything else?
Fox:
No, Your Honour.
Judge:
Okay. Mr. Bhimji, thanks for coming.
Bhimji:
Thank you.
Judge:
You're free.
(WITNESS EXCUSED)
Judge:
We are back I think tomorrow morning, are we?
Wolfe:
We are.
Fox:
That's correct, yes.
Judge:
Okay. Now, who do we have left, Mr. Wolfe?
Wolfe:
One witness, just a statement. I've heard Mr. Fox's view of the voluntariness, but you still have to satisfy yourself, of course, so…
Judge:
Mm-hmm. Is it -- is it Potts we're having or --
Wolfe:
It is. The statement runs about two hours and 40 minutes.
Judge:
Okay.
Wolfe:
I have a transcript.
Judge:
All right. Okay, thanks. Let's come back then tomorrow at 9:30, okay. And, Mr. -- and Mr. Fox, you have the staples removed now, do you, on that paper?
Fox:
Well, not on this disclosure material. These look like some large staples, but the staple issue is actually just the -- the sheriffs, not at the jail.
Judge:
Not at the jail.
Fox:
So it's -- usually I end up having to restaple them when I get back to the jail.
Judge:
Yeah.
Wolfe:
So here's my idea. I mean, I'm happy if there's a stapler puller on the desk, we can pull them out for you right now.
Fox:
Well, I have an electronic version.
Wolfe:
I don't know if you're going to get that at the moment because of the lost hard drive.
Fox:
Well, however you want to do it.
Judge:
You're entitled to take paper with you. The sheriffs won't let -- they won't let you have the staples. If you want to take it, you just have to remove the staples.
Fox:
Sure.
Judge:
Is that correct, Mr. Sherriff?
Sheriff:
Yeah.
Judge:
Yeah, okay. All right. But we're back in the same courtroom tomorrow?
Clerk:
Yes, Your Honour.
Judge:
Okay. I'll see you at two o'clock or, I mean, 9:30.
Transcriber: C. Henschke