Transcript of Trial Proceedings (2019-08-14)
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 14, 2019
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
(DAY 3)
(DAY 3)
244069-5-BC
Vancouver Registry
In the Provincial Court of British Columbia
(BEFORE THE HONOURABLE JUDGE ST. PIERRE)
Vancouver, B.C.
August 14, 2019
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
(DAY 3)
(DAY 3)
Crown Counsel: Bernie Wolfe
Appearing on his own behalf: Patrick Fox
INDEX
- WITNESSES FOR THE CROWN
EXHIBITS
- MARKED C FOR IDENTIFICATION: Transcript of Corporal Potts' recorded interview with Patrick Fox
- MARKED D FOR IDENTIFICATION: Printout of a webpage used as a prop in Corporal Potts' interview with Patrick Fox
- MARKED E FOR IDENTIFICATION: Notes in Patrick Fox's handwriting used as a prop in Corporal Potts' interview with Patrick Fox on April 4
- EXHIBIT F FOR IDENTIFICATION: Audio/video recording of Corporal Potts' interview with Patrick Fox
- MARKED G FOR IDENTIFICATION: Audio recording of Corporal Potts' interactions with Patrick Fox outside of the interview room
RULINGS
- Nil
Vancouver, B.C.
August 14, 2019
Wolfe:
Wolfe, initial B., for the provincial Crown, Your Honour. I am continuing with the Crown's case on Her Majesty against Patrick Fox. Crown's last witness is in the gallery, with your leave. He is Corporal Potts, who obtained a warned statement from Mr. Fox. I will say that having reviewed my notes thus far from the evidence of the witnesses it's my intention now to tender the statement and have it reserved for purposes of cross-examination.
Judge:
Yeah, I was going to ask you that this morning. So the --
Wolfe:
Yes. About the purpose --
Judge:
Yeah.
Wolfe:
I'll be -- I'll be candid with the court and Mr. Fox. I came to this realization more clearly after court, spending a couple of hours producing an evidence summary of the witnesses and seeing how the evidence had played out, so to speak. So that would be Crown's purpose for tendering the statement.
Judge:
Okay. So we're at proving the voluntariness but you're seeking to hold it back for the purposes of cross-examination, correct?
Wolfe:
Correct. In the -- and if you wish, I can -- unless Mr. Fox knows what that means, I can explain it right now.
Judge:
I -- yeah, I can explain it to him.
Wolfe:
Sure.
Judge:
Mr. Fox, the -- there's a number of different reasons the Crown can seek to enter -- can seek to prove a statement. In this particular case -- in some cases the Crown proves a statement and has it entered in their case as part of their case for the truth of its contents, that statement. In this particular scenario they're entitled to prove the voluntariness of the statement but hold it back for -- only for the purposes of impeachment or cross-examination. So for instance, if you were to take the stand, they could, if they proved the voluntariness of the statement, use that statement in cross-examining you. But that would obviously be only if you're taking the stand. So -- so the statement does not -- form any part of the Crown's case, and -- but it's held back for the purposes of asking you questions --
Fox:
Right.
Judge:
-- and challenging you on your evidence or clarifying things that you might have said before in a statement, that sort of thing. You understand the difference?
Fox:
Yes, I do. Thank you.
Judge:
Yeah. Okay.
Wolfe:
And if I may suggest, I would also -- if the occasion arises by way of suggestion from the contents of the transcript, suggest things to him seeking adoption of what's in there.
Judge:
Right. Yes. Fair enough. That's right. So the -- the -- at the end of the day they could put certain parts of it to you and seek for you to adopt that as to the truth of its contents. Okay.
So let's -- let's have Corporal Potts, then.
Wolfe:
Two preliminary matters.
Judge:
Sure.
Wolfe:
And I think out of -- to just be cautious about this, given what I anticipate Mr. Fox will do perhaps it would be prudent if Corporal Potts could wait outside.
Judge:
Sure.
Wolfe:
And --
Judge:
Okay, Corporal Potts, we'll call you back in in a minute, I think.
Potts:
Thank you, Your Honour.
Judge:
Yes.
Wolfe:
I got a call from Obrist this morning.
Fox:
I don't know who that is.
Wolfe:
A call from the officer, from --
Fox:
Oh, Obrist. Okay.
Wolfe:
Sorry. Your Honour, this morning when I was preparing for the continuation I received a call from Officer Geoffrey Obrist, who you will recall gave evidence yesterday.
Judge:
The American Border Patrol guy?
Wolfe:
He did. He did.
Judge:
Yeah.
Wolfe:
And he apologizes to the court, indicating it was the first time he gave evidence. I have a solution to propose based on what he told me. It's not really particularly important. He said to me that after -- after he gave evidence last evening it occurred to him that in fact he did transport Mr. Fox from Blaine to the detention centre. He didn't think he did that when he gave evidence, but he checked records. It bothered some. He was quite apologetic.
Judge:
From Blaine to the detention centre in Tacoma.
Wolfe:
Yes, that's right. And he said he departed at 12:32 a.m., that would make it the 16th of March, and arrived in Tacoma at 3:08 a.m. on the 16th of March. One other person was with him when Mr. Fox was transported. He couldn't recall the particular vehicle. It was either a sedan or a Tahoe kind of SUV. And he extends his apologies to the court for misstating. I think -- in my submission it's open by way of admission --
Judge:
Yeah, if --
Wolfe:
-- to have that fact admitted. I haven't drafted it. It seems fairly elementary. But if Mr. Fox -- admissions are made by accused, not by Crown. If the admission is acceptable to Mr. Fox, he could admit that additional information as a fact forming part of the evidence before the court.
Judge:
Okay. Mr. Fox, that particular piece of evidence, you can -- you don't have to agree that it -- that it formed part of this case, but you're entitled to agree to that. And it would be entered by way of s. 655 as a fact to be admitted.
Fox:
My position on it --
Judge:
Yeah.
Fox:
-- is I noticed it when he said it.
Judge:
Mm-hmm.
Fox:
And I did recall that he was the one driving the vehicle there. It's just it didn't really seem relevant to me and that's why I didn't bother --
Judge:
Understood.
Fox:
-- bringing it up at the time.
Judge:
All right. Okay. Yeah. And I guess, Mr. Wolfe, you can decide whether there's relevance to that piece or not. It sounds like Mr. Fox is not of one way -- not of any opinion one way or the other.
Wolfe:
I don't -- my submission is that there -- there's nothing particularly weighty about that, but I think as a matter of completeness it might as well be admitted. It does provide a more complete record of what Obrist meant to say, in any event.
Judge:
Okay. Mr. Fox, are you amenable to having that fact admitted as part of the Crown's case or not? Again, you don't -- you don't have to if you don't want to.
Fox:
I can't help but to think if that does go into the record doesn't it kind of call into question the credibility of the rest of his statements, then? Because he clearly stated that he didn't transport me and that the last time that he was with me was --
Judge:
The -- I mean, the impact of it, you can argue that later.
Fox:
Okay.
Judge:
But the fact that he made -- he gave evidence and then has this admission, this clarification, you could argue the import of that later, but it has to -- it would have to be in evidence for you to argue that import of --
Fox:
Right. My preference, to be honest, would be that it just not even be put on the record at all, but…
Wolfe:
If there's no admission, there's no admission.
Judge:
If there's no admission, there's no admission, but it precludes you from later on saying he changed his evidence.
Fox:
I'm okay with that.
Judge:
You understand that?
Fox:
Yeah.
Judge:
Yeah. All right.
Wolfe:
Very well. I do believe Mr. Fox wanted to address the court regarding any future developments.
Judge:
Okay. Mr. Fox, thanks.
Fox:
It is my intention at this time to testify when the Crown is finished with their -- with their evidence. However, I anticipate that the Crown is going to point out that I was convicted of perjury 11 years ago, even though I insist that the allegedly perjurious statement was -- for information was that I'm a United States citizen, and I believe that I have sufficient proof to support that and so that it wasn't actually perjury. The fact remains there's a perjury conviction. That's going to be used to discredit me. For that reason I expect that I'm going to have to have additional or documentary or physical proof of everything that I'm going to testify to. And as I had said Friday last week, at this point I don't have all of that evidence, so I would be -- before I testify I would be asking that we adjourn the proceedings to give me more time to get that evidence to support the claims that I'm going to be making.
Judge:
To support what claim?
Fox:
Well, you see, the thing is some of the statements that I'm going to be making are going to seem very outrageous to the point that Mark Myhre, the prosecutor on the original case, for example, tried to convince the court that perhaps I'm delusional. I've since had the psych assessment. I have documents from -- from the forensic -- or from those doctors saying that no, I'm not delusional; there's nothing wrong with me, but neither here nor there.
For example, the issue of the citizenship -- and I know that the Crown is trying to say that the issue of citizenship is not important. However, it seems to me that it clearly is important if I'm saying that I turned myself in to CBSA and then CBSA removed me from the country. If the court believes that I am a Canadian citizen, then the court probably is not going to believe that CBSA would deport me from Canada if I'm a citizen here.
So it seems to me that I should have some kind of evidence to support my claim that I'm not a citizen, especially now since it seems that the RCMP is saying well, any evidence that I even turn myself in to CBSA seems to not exist or has been destroyed.
Judge:
Yeah. Well, the -- I guess the -- ultimately it's your decision what evidence you want to muster in your own case, but the -- you're saying you're going to -- you're going to be testifying about your -- your actual -- with respect to CBSA and turning yourself in to CBSA?
Fox:
Yes, that's definitely going to be part of my testimony.
Judge:
Okay.
Fox:
But since Constable Brown seemed to be suggesting that perhaps I never went in to CBSA at all, and so since I'm going to be insisting that I did, I'm going to want to have some kind of physical evidence to support that. According to the RCMP CBSA has no record of me being there on March 15th. But one thing I know for sure is that by the time I turned myself into CBP on the U.S. side, they were anticipating me. So they had -- CBSA had notified them that I was coming over, and I was swarmed by five or six CBP officers once I got up to the counter and gave my ID. So I'm going to need to submit, for example, a freedom of information request to CBP to get what records they have to show that CBSA did notify them, which supports my position that I did turn myself in to CBSA.
Judge:
Have you considered calling as witnesses the individuals that you say you dealt with at -- for Canada Border Services?
Fox:
I had definitely considered that. I had asked the Crown about that. I could pursue that. My experience with CBSA so far because there has been so much questionable --
Judge:
Do you know who you dealt with, in other words?
Fox:
Oh, no, I wouldn't have the names, but I would think that there would be some record of that. Well, then again, maybe not. You see, the thing is on the issues with Homeland Security and CBSA there's been so much very questionable conduct that has occurred over the past 10 years. It seems that CBSA's position is to not document anything that has anything to do with me and to not take any kind of official position on anything that has to do with me, and so far that seems to be what they're doing. So I don't believe that CBSA is going to allow any CBSA officer to come in here and provide any kind of testimony about what might have happened on that day,
which is why I was hoping to get the video.
There is other evidence that I do have outside, but I don't really want to go down that just yet.
Judge:
Well, as I understand your request is to -- is to adjourn the defence part of the case --
Fox:
Right.
Judge:
-- to seek FOI requests.
Fox:
What I would be --
Judge:
'Cause that could take a long time.
Fox:
I -- yes. My experience with Homeland Security is that their Freedom of Information and Privacy Act requests typically take six to nine months, sometimes as long as 12 months, when dealing with Immigration and Customs Enforcement.
Judge:
Well, are -- are you -- what is your status right now? Are you detained?
Wolfe:
He was detained on April 10th. There was a 525 review, which -- which I appeared. The detention order was upheld.
Judge:
April 10th detention. So you've served your sentence. Is that right, Mr. Fox?
Fox:
Well, the Crown has --
Wolfe:
You mean from the index offence?
Judge:
On the index offence.
Fox:
Oh, yes.
Wolfe:
A jail sentence. He was released December 30th, I believe, 2018.
Fox:
That's right.
Wolfe:
And then his --
Judge:
December 30th, 2018 --
Fox:
This his --
Judge:
-- released on the index.
Wolfe:
And then his three-year probation order commenced. And then on April the 10th, I believe, 2019, your brother Judge Sutherland presided over the bail hearing and he was detained on the secondary ground. I conducted on behalf of the Crown the s. 525 review on the 26th of July before Mr. Justice Burrows [phonetic], who upheld the detention order.
Judge:
Okay. The -- Mr. Fox, you understand that -- I mean, your request could have the -- could have the effect of extending your detention for a significant period of time.
Fox:
I do understand that. But getting to the truth of the matter is much more important to me than getting out of custody sooner,
particularly since -- if I'm found guilty on this and I get released, every time that I attempt to go back to the United States a warrant's going to be issued here and Homeland Security is going to use that as a basis to return me here, and I'm just going be in this perpetual circle where I just keep trying to --
Judge:
Well, you're on a probation order that you not go to the United States.
Fox:
Well, right.
Judge:
And that's what we're talking about.
Fox:
Yes.
Judge:
Right now.
Fox:
Yes.
Judge:
So you mean after the probation order is expired?
Fox:
No. Once the probation order expires in a little over two years, then it all becomes irrelevant and then I can go wherever I want.
Judge:
Yeah.
Fox:
Obviously I'm going to continue to try to get that condition removed, but I expect that Justice Holmes is going to continue to deny those requests.
Wolfe:
Mr. -- Madam Justice Holmes entertained a probation variation application on -- which she adjudicated on the 14th of March, 2019, just the day before Mr. Fox left B.C. She denied his application. So I mentioned that because I -- if I understand Mr. Fox correctly, between now and the expiration of his probation order he may well bring on other variation applications.
Judge:
Yeah.
Wolfe:
Or may well try to cross the border again anyway. Have I got that right? --
Fox:
Well, I would again create a situation where I get deported. I'm not going to -- I'm not going to directly violate the probation order by voluntarily just crossing the border, but I know that every time I turn myself in to CBSA they're going to take me to the border again.
Judge:
You're --
Fox:
Next time I'll make --
Judge:
So you're saying that your -- your evidence is if you were to -- and you don't have to tell us your defence, Mr. Fox, but I understand your purpose for setting it out at this point. But you're saying that you -- you did turn yourself in to Canada Border Services and were deported. That's part of your defence. And are you also saying that they have no record of deporting you?
Fox:
I'm basing that on what Constable Brown had said yesterday.
Judge:
Well, Brown is -- Brown is a police officer.
Fox:
Yes.
Judge:
You've -- but we've heard from no Canada Border Services folks.
Fox:
That is correct. I would love to have a CBSA officer on the witness stand under oath because --
Judge:
Who has some relevant information to provide. Either --
Fox:
Yes, of course.
Judge:
Either --
Fox:
I mean, I do have some documents from IRCC and from CBSA which -- as far as I'm concerned they're quite clear because it says "country of birth, United States of America; citizenship, unknown." The -- the Crown counsel, not Mr. Wolfe, but Mark Myhre, says that in his mind that's ambiguous.
Judge:
Isn't it that if you're born in the U.S. to American parents --
Fox:
Yes. If you're born outside of Canada you can inherit Canadian citizenship if your parents were Canadian or under various other grounds, but you still have to apply for that; it's not automatic. I've never applied for Canadian citizenship and I have no ties or connections to Canada, which of course brings up the whole issue of Steve Riess and --
Judge:
And you have no citizenship card.
Fox:
No, I've never applied for --
Judge:
You've never --
Fox:
-- a citizenship card.
Judge:
Okay. The -- the issue I don't think is your citizenship; it's whether you -- you know, it's whether you can establish a reasonable excuse for -- for, you know, to comply with the probation order. Your reasonable excuse, you say, is that you were deported.
Fox:
Right. But if Your Honour doesn't believe that I'm not a Canadian citizen, then I don't see how you could believe that I turned myself in to CBSA and was deported.
Judge:
Well, you -- you know, you're way ahead of the game.
Fox:
I'm speculating.
Judge:
Speculation, yeah. The --
Fox:
One --
Judge:
Yeah, go ahead.
Fox:
One reason that I am speculating on that is one of the issues that I wanted to bring up this morning was last week at the pretrial conference the Crown was -- the Crown had stated that Steve Riess in Sudbury, Ontario, is my father. I was insisting that he's not my father, and that was part of the reason I want the DNA test, et cetera. But the court had referred to -- I'm quoting here, had referred to Steve Riess as, quote, "your father," which made me a little bit concerned.
Judge:
What court?
Fox:
Oh, you did. At the pretrial conference you had referred to Steve Riess as -- you had said, "Your father says," blah, blah, blah.
Judge:
Okay. Your alleged father. I mean, it's really piecemeal and parsing syntax and language. If -- if I had made an error in that regard, then it's nothing.
Fox:
I'm not trying to be confrontational with this. I just --
Judge:
Because I've -- because none of it is relevant right now because I've heard no evidence about --
Fox:
Okay.
Judge:
-- your father or who your alleged father might be. None of it is relevant. The pretrial conference is not evidence. It's not evidence to be considered in this case.
Fox:
Right.
Judge:
The only evidence is -- to be considered in this case is what's admissible in this case and what the witnesses say on the stand under oath or under affirmation or what's admissible as documentary evidence proper in this case. That's the only evidence that's admissible.
Fox:
Okay.
Judge:
That's the only evidence that will be considered. Now, having said that, you -- you're trying to get evidence from the Canada Border Services that you were deported. Surely somebody from Canada Border Services could say one way or the other whether that took place on March --
Fox:
I would think so.
Judge:
-- 15th or not. So I don't understand what the -- quite what the issue is.
Fox:
Well, CBSA -- or nobody from CBSA has responded to any of my letters since I've been in custody. I've sent a couple to the Peace Arch --
Judge:
You've asked for --
Fox:
-- [indiscernible].
Judge:
-- your own records with respect to --
Fox:
Well, I was also --
Judge:
-- your interactions with them
Fox:
I explained the situation about the proceedings going on and that the video would be very helpful.
Judge:
And they have not responded to you.
Fox:
No, they haven't. I've also sent some to Ottawa to their -- I think it's in Ottawa, their head office, and I've received no response to any of those. Historically the only response I've ever gotten from CBSA has been their free -- or their privacy department, the ATIP department. Otherwise they just don't want to talk to me at all.
Judge:
Right.
Fox:
And my understanding is the Crown has had a similar experience with CBSA that they haven't been very helpful with him.
Judge:
Your inquiries, Mr. Wolfe, with CBSA, are there are any witnesses that you've been able to discover have relevant evidence to give in this matter?
Wolfe:
I've made no inquiries regarding that because it's not material or relevant to my case.
Judge:
Okay. Well, the feds can subpoena people if they want to.
Wolfe:
Yeah.
Judge:
The -- but we're not there yet.
Wolfe:
But I think we'd need a name, anyway.
Judge:
Pardon me?
Wolfe:
We'd need a name, at the least, right? Yeah.
Judge:
Yeah, well, there could be some official from CBSA. Documents can be subpoenaed as well unless there's some -- some relevant officer from CBSA would come with those documents to establish a fact or not establish a fact, but it's -- it's very -- I understand the -- the frustration from Mr. Fox is that he's trying to gather some kind of documentary evidence from CBSA one way or the other, whether he appeared there on a certain day and was deported. I would be astonished if CBSA doesn't -- if somebody appears at CBSA offices and is actually deported that they have no record of that. That would be beyond comprehension, quite frankly.
Now, somebody could come from there and say, "We have no record of that." That would be evidence. The evidence that -- that would allow an inference that you didn't go there --
Fox:
Right.
Judge:
-- quite frankly. It would allow that inference. You agree with that, Mr. Fox?
Fox:
Yes. And that would be part of the reason I would hope to get documents from CBP as well.
Judge:
Mm-hmm. Okay. Well, let's -- you've -- I understand what your intended application is. At the end of the Crown's case you're going to make that application. Let's deal with it when we get there, okay?
Fox:
Right.
Judge:
But thank you for setting it out, and I'll have to think about it when we get there, okay?
Fox:
Okay. And I would just like to take three seconds --
Judge:
Yeah.
Fox:
-- to just clarify one thing. Yesterday when Mr. Bhimji was on the -- the stand and I questioned him about some of the statements that I had made to him, my intention was that -- with that was only to prove that I had made those statements.
Judge:
Yes.
Fox:
Not the truth of those statements.
Judge:
The fact that those statements were made.
Fox:
Right. To show that --
Judge:
Yeah.
Fox:
-- I was actually informing the probation department of what my intentions were.
Judge:
Mm-hmm.
Fox:
Okay.
Judge:
I understood that that to be the case.
Fox:
Okay. Thank you.
Judge:
Okay.
Wolfe:
Right. Which is why on redirect, to use the term [indiscernible], in other words receiving that from Mr. Fox.
Judge:
Yeah.
Wolfe:
I think that was clear.
Judge:
I think we're on the same page on that part.
Wolfe:
Right. You just will recall his evidence amounted to saying he didn't check it out.
Judge:
Mm-hmm.
Wolfe:
Right.
Judge:
Exactly. Okay. So we're -- we are at the part where we're going to call Corporal Potts. Is that right?
Wolfe:
Yes.
Judge:
To --
Wolfe:
I have transcripts to -- for each of us. And by the way, Mr. Fox, just as it comes to mind, now has a laptop, for the record, in front of him, as miserable apparently as it is, and badly constructed given his expert opinion, but it works. And I have retrieved from him the hard copy, so he now has in front of him the electronic disclosure, and given his facility in electronics I'm assuming that's an easy way to work with.
Fox:
Yes, it is. Thank you.
Judge:
This is the -- this is the format that you've had in the institution.
Fox:
Yes.
Judge:
And you're able to navigate through it?
Fox:
Yes, thank you.
Judge:
Okay. Thanks.
Wolfe:
So I think we're good there on the --
Judge:
Okay.
Wolfe:
So transcripts. Mr. Fox can -- should be able to find the transcript on the computer. If not, I have a hard copy for you to follow.
Fox:
I can use the PDF one.
Wolfe:
Okay. Thank you. A copy for the court, one to enter as an exhibit. That can be marked just for identification at the moment, I think. Yes.
Fox:
But since that is being entered as an exhibit may I receive a copy for my records, for my file?
Judge:
Yeah. You mean a paper copy?
Fox:
Oh, yes. Just so --
Judge:
Yeah, sure.
Fox:
-- I have a complete copy of everything that -- if it's filed with the court, then… I mean, this is my own statement, though.
Judge:
Yeah. Yeah, you're entitled to it.
Wolfe:
And then --
Judge:
And again, you might have to take the staple out when you go down to --
Fox:
Oh.
Wolfe:
And it's --
Fox:
Yeah.
Wolfe:
And it's a fat one. So the -- also to be marked for identification are the two props that were used by Corporal Potts. I have -- we should be able to -- do you have the props on that one?
Fox:
The props on it? What do you mean?
Wolfe:
When Mr. Fox was interviewed by Corporal Potts, Corporal Potts showed a couple of things to him during the interview. This is one of them. And then that -- and then here's the other. So I have copies to marked for identification. First is a hard copy of what appears to be --
Judge:
Okay. So the statement we're going to mark for identification on the voir dire.
Wolfe:
Yes.
Judge:
And that is Exhibit C, I guess, which is the -- which is a --
Wolfe:
Right.
Judge:
A printed transcript of a statement, an April 4th statement.
Wolfe:
That's right.
Judge:
Exhibit C is the transcript.
Judge:
And you've got --
Wolfe:
Then D would be the printout of a webpage. This is one of the props that was put to Mr. Fox.
Judge:
Exhibit D is a prop, a webpage. Okay.
Wolfe:
And then the second and final prop that was put to Mr. Fox by Corporal Potts are copies of notes that were -- that appear to be in Mr. Fox's handwriting.
Judge:
Okay. And -- for identification, Exhibit E.
Clerk:
I only have one copy.
Wolfe:
Oh, I'm sorry. Thank you.
Clerk:
Thank you.
Judge:
Thank you. Exhibit E appears to be some notes of some kind. Okay.
Wolfe:
So if I may, then, I would like to bring the witness in and start.
Judge:
Sure. And we're -- we are commencing with Corporal Potts in the voir dire?
Wolfe:
That's correct.
Judge:
Okay. So the voir dire that we had commenced and suspended at points in time, Madam Registrar, we're back -- we're back on that one. Yeah. Thanks.
Clerk:
And should I page -- is it, sorry, corporal or constable?
Wolfe:
Corporal now.
Fox:
Mr. Wolfe, in the meantime one of the pieces of evidence that I'm going to enter in my testimony is my birth certificate. My friends in Los Angeles, I've had no contact with them since I've come back here. I think they're fed up with my antics. But the Crown has a copy of it because it was -- I sent a copy to Desiree years ago.
Wolfe:
Mm-hmm.
Fox:
So that was [indiscernible] an exhibit.
Judge:
Thank you, Corporal.
Potts:
Your Honour.
Fox:
We'll talk after. I was wondering if maybe you would be able to provide that since I'm cut off from the outside world.
JASON POTTS
a witness called for the Crown, sworn.
Clerk:
Please state your full name, spell your last name and give your badge number for the record.
Potts:
Jason Robert Potts, P-o-t-t-s. Badge number is 57140.
Judge:
Thanks, Corporal. You can always sit, if it's more comfortable for you.
Potts:
Thank you, Your Honour.
Judge:
It's up to you.
Wolfe:
Do you want a glass of water?
Potts:
I'm good for now.
Wolfe:
Good for now.
Potts:
Yeah.
Judge:
Now, that -- I guess you'll get the screen up when -- when you need it, or…
Wolfe:
Good idea. We'll do it now.
Judge:
Okay.
Wolfe:
Are we all lit up? Is your monitor working, Your Honour?
Judge:
Yeah, it's got a Windows 7 screen on it.
Wolfe:
Okay. And this one doesn't.
Potts:
Oh, here we go. Yeah.
Wolfe:
Okay. Thank you.
Judge:
And, Mr. Fox, is your screen -- you can see?
Fox:
Yes, it is. Thank you.
Judge:
Okay. Thanks.
EXAMINATION IN CHIEF ON VOIR DIRE BY MR. WOLFE:
Wolfe:
Corporal, you're a peace officer and police officer with the Burnaby RCMP. Is that correct?
Potts:
Yes.
Wolfe:
How many years?
Potts:
Ten.
Wolfe:
Ranked as corporal since…
Potts:
May of 2019.
Wolfe:
You're so employed and on duty with respect to all aspects you undertook for this investigation. Is that so?
Potts:
Yes.
Wolfe:
You were tasked particularly with conducting an interview of an individual you came to know as Patrick Henry Fox. Is that correct?
Potts:
Yes.
Wolfe:
You'd had some prior relationship or dealings with Mr. Fox on another matter. Is that correct?
Potts:
Yes.
Wolfe:
So do you happen to recall the general investigation number on that prior incident?
Potts:
Yeah, it was a harassment --
Wolfe:
No, to the actual GO number.
Potts:
Oh, yes. I believe it was 2016-25379.
Wolfe:
Could I just have Exhibit 2 for a moment, please. Can I see that for a second. Thank you.
Wolfe:
So if I direct your attention to the file -- marked as Exhibit 2, which is a probation order, do you see a police file number there?
Potts:
I do.
Wolfe:
Is that one familiar to you?
Potts:
Yes, it is.
Wolfe:
Okay. In relation to Mr. Fox?
Potts:
Yes.
Wolfe:
Okay. And that appears to be -- correctly identify Patrick Henry Fox, and the date of birth?
Potts:
Yes.
Wolfe:
Thank you. So you were tasked specifically on April 4th, 2019, to obtain an interview with Mr. Fox, correct?
Potts:
Yes.
Wolfe:
And I don't know at this juncture if ID is an issue. I'm happy to go through it formally because we're dealing with a self-rep.
Judge:
Pardon me?
Wolfe:
Given that this is a recorded interview I don't know that I need to go through ID questions the way I normally would here. I'm in your hands on that point, I can, if you think it's --
Judge:
The question is about --
Wolfe:
Identification. Describe the man. Would you -- I mean, it's video recorded, so I would prefer to just sort of jump over that, if I --
Judge:
Yeah. Okay. That makes sense.
Wolfe:
Sure.
Wolfe:
You know Mr. Fox? You've seen him, right?
Potts:
Yes, I do.
Wolfe:
You see him here today?
Potts:
Yes, I do.
Wolfe:
Where is that gentleman?
Potts:
Sitting right there.
Wolfe:
What's he wearing?
Potts:
I guess the red sweater. It's got a big L on it. He's got glasses.
Judge:
Yeah. I have that.
Wolfe:
All right.
Wolfe:
So your task to interview him, was that your only investigative action with respect to the case that brings you to court?
Potts:
Yes, it was.
Wolfe:
Did you have any dealings with Mr. Fox that -- now you recorded your interactions with him. Is that correct?
Potts:
Yes, I did.
Wolfe:
Okay. Did you have any -- with respect to your task to conduct an interview with Mr. Fox, did you have contact with him that was not recorded?
Potts:
No, I did not.
Wolfe:
So your entire contact -- just to make sure I understand it. Your entire -- your evidence is your entire contact was recorded. Is that correct?
Potts:
Yes.
Wolfe:
So on the 4th of April you were briefed by Constable Hawkins. Is that so?
Potts:
Yes.
Wolfe:
And you were given an arrest script that Hawkins had used. Is that correct?
Potts:
Yes.
Wolfe:
And it was in relation to arresting Mr. Fox. Is that right?
Potts:
Yes, that's correct.
Wolfe:
All right. And then you were briefed, so to speak, regarding -- regarding the case. Is that true?
Potts:
Yes.
Wolfe:
And also were you advised by Constable Hawkins regarding Mr. Fox's right to counsel?
Potts:
Yes, I was. We had a briefing. The two of us had a conversation post Constable Hawkins arresting Mr. Fox, and he basically -- he told me that he had offered Mr. Fox the opportunity to contact counsel immediately upon his arrest. Mr. Fox declined to contact his counsel. They then drove to Burnaby Detachment and again in the cellblock Constable Hawkins asked Mr. Fox if he wanted to speak with or call counsel, and he again said no.
Wolfe:
All right. So your -- your -- did you retrieve Mr. Fox personally from a cell in which he had been placed?
Potts:
Yes, I did.
Wolfe:
Was your recording device working then?
Potts:
Yes, it was.
Wolfe:
Okay. And then you escorted him to the interview room. Is that true?
Potts:
Yes.
Wolfe:
And then you conducted the interview. Is that right?
Potts:
Yes.
Wolfe:
And that was recorded video and -- and audio as well?
Potts:
Yes.
Wolfe:
And a transcript was produced. Is that right?
Potts:
Yes.
Wolfe:
And have you compared the transcript typed with the actual recorded interview?
Potts:
Have I compared it?
Wolfe:
Yeah.
Potts:
Yes, I have.
Wolfe:
And does the transcript, to the best of your ability, appear to be true and accurate?
Potts:
Yes.
Wolfe:
And is your warned interview that is recorded, is that the entire interview that's recorded?
Potts:
Yes.
Wolfe:
After you conducted the interview did you personally return Mr. Fox to his cell?
Potts:
Yes.
Wolfe:
Did you have any further dealings with him?
Potts:
No. No.
Wolfe:
I understand that you commenced the interview at about 1428 hours. Is that correct?
Potts:
Yes.
Wolfe:
And the interview lasted in -- or the statement, so to speak, was concluded around 1647 hours?
Potts:
Yes.
Judge:
1647?
Wolfe:
Yes.
Wolfe:
And then you also secured props. Is that correct?
Potts:
Yes.
Wolfe:
I just would care to have you look at two documents.
Wolfe:
Could I see Exhibit D and E -- Exhibits D and E on the voir dire, please.
Wolfe:
So D I believe to be the webpage printout. And do you recognize that?
Potts:
Yes.
Wolfe:
And did you make copies of that?
Potts:
Yes, I did.
Wolfe:
So the -- does that appear to be a true copy of one of the props you used during the statement?
Potts:
Yes, it does.
Wolfe:
And if you would examine E, please, which appear to be notes.
Potts:
Yes, it appears to be the --
Wolfe:
The notes that you used during the interview?
Potts:
Yes.
Wolfe:
Do you -- you understood them to be what kind of notes? Whose notes in whose handwriting?
Potts:
The -- I was given it to -- by Constable -- I believe it was Hawkins, and it was apparently notes that was made by Mr. Fox while he was in U.S. custody.
Wolfe:
Okay. And have you had occasion to review the actual recorded interview?
Potts:
Yes.
Wolfe:
And does that appear to be a true and accurate recording of the statement --
Potts:
Yes.
Wolfe:
-- obtained?
Wolfe:
I think at this juncture we'll play the video.
Judge:
Okay.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
Wolfe:
I just want to stop it at this point. We'll see that this interview is being picked up, if you go to page 2. Actually I just want you to go to line 26 on the transcript.
Potts:
Yeah.
Judge:
Okay.
Wolfe:
So there is a transcript that appears here but it's not recorded on this.
Potts:
Yeah, there's two separate files. There's an audio file. So I have my digital recorder. So what we do is we submit the audio recording from the recorder to our transcription. They then transcribe this. So what we're looking at here is the full interaction of my interactions with Mr. Fox, which is my audio recorder that I have on at all times, the escorts, walking around. This is the video clip.
Wolfe:
Right. But we'll be able to get the .wav file, right?
Potts:
Yeah. You -- it was disclosed, so I don't know if you have it.
Wolfe:
And it should be on the same disk?
Potts:
Potentially, yeah.
Wolfe:
Is that indicated on there?
Potts:
It was Constable Hawkins that --
Wolfe:
All right.
Potts:
-- prepared the disclosure.
Wolfe:
That may be something we'll have to do during the break.
Potts:
Okay.
Wolfe:
Let's just pick this up.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
Wolfe:
I just want to stop the video to formally get something on the record here.
Wolfe:
The individual who was speaking just before I stopped the video in the black is Mr. Fox. Is that correct?
Potts:
Yes, that's correct.
Wolfe:
And then the person facing him with the back of his head towards the camera is yourself. Is that correct?
Potts:
Yes.
Wolfe:
Nobody else in the room, correct?
Potts:
Correct.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
Wolfe:
I just note the time, and the statement's moving into a slightly different area.
Judge:
Okay.
Wolfe:
Is this convenient for a break?
Judge:
Sure. Okay. Let's take the morning break, Mr. Fox and Corporal, okay? And then we'll -- just give me a shout when everybody's back, okay?
I'll make sure this is saved. Thanks.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED FOR MORNING RECESS)
(PROCEEDINGS RECONVENED)
JASON POTTS,
recalled.
Judge:
[Recording turned on] …line 447, somewhere around there.
Wolfe:
Yeah, that's right. The clock has stopped at -- just for the record, so it's clear, at the morning break the audio and video recorded statement taken by Corporal Potts was stopped at 2:58 and 18 seconds. And I agree. I had made a notation at line 445 or 447, around there.
Judge:
Okay. Yeah.
Wolfe:
And so I'll resume playing at that point, Your Honour.
Judge:
Okay.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
Wolfe:
So I just want to stop the video at this point.
EXAMINATION IN CHIEF ON VOIR DIRE BY MR. WOLFE, CONTINUING:
Wolfe:
You're showing the witness which interview prop at this point?
Potts:
It would be the one that was marked Exhibit E. It's the notes -- the notes that he made -- apparently made during custody.
Wolfe:
All right. So just for the record I've stopped the playback at 3:03:41, and the witness has indicated that on the screen the document which appears to be examined by Mr. Fox and himself is that particular exhibit. Okay.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
Wolfe:
So, witness, at this point are you now showing him what is Exhibit D, the printouts from the webpage?
Potts:
Yes, that's correct.
Judge:
Exhibit D. Yeah.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
Wolfe:
So what exactly are you showing him? I've just stopped it at 4 --
Potts:
Sure.
Wolfe:
-- sorry, 3:23:08.
Potts:
There's profiles or write-ups on certain individuals that were involved in the -- I guess, all the proceedings against Mr. Fox. Some of those people he didn't -- there was no -- there was no photograph on this page for and there's no kind of a replica or kind of --
Judge:
Page --
Potts:
-- emoji or --
Judge:
What page are we on?
Potts:
It's kind of varied throughout.
Judge:
All right. Okay.
Potts:
You see there's kind of a figure of a person --
Wolfe:
So if I -- if I direct your attention to the last page of that exhibit.
Potts:
Yeah.
Wolfe:
Is that an example, those two --
Potts:
That is. There's a figure of a person holding --
Wolfe:
Okay.
Potts:
-- two middle fingers up.
Wolfe:
And then just to contrast that, if you go to the second last page you'll see photographs to the left of names of persons but also some have the silhouette or however you want to --
Potts:
Yeah, figures of --
Wolfe:
-- refer to it with the two fingers up. Is that what you're talking about at this point?
Potts:
Yes, that's right.
Wolfe:
Is that clear, Your Honour?
Judge:
Yeah, I got it. Yeah. Thanks.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
Wolfe:
So can you just point us to what you're directing him to at this point.
Potts:
So -- so page 7.
Wolfe:
Hold it up so His Honour can see it. It looks like a matrix of some sort, right?
Potts:
Yeah. Just a table and it's talking about audio.
Judge:
Okay.
Potts:
It's got, you know, various kind of titles --
Judge:
Yeah.
Potts:
-- and PDF audio cited.
Judge:
Okay. That's on the seventh page in, right?
Potts:
Correct.
Wolfe:
And I've just stopped the video at 3:26:57.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
Wolfe:
So what are you -- what page are we looking at now?
Fox:
If I may, I can -- if you're having difficulty with it.
Potts:
I'll have to take a look through.
Fox:
[indiscernible]
Wolfe:
That's the chart. That's what I [indiscernible]. Yeah.
Wolfe:
Is it not the first page?
Potts:
Yeah, that's what I thought.
Wolfe:
In the recent post --
Potts:
I just want to look -- confirm through.
Wolfe:
-- because you reference the 12th. It would be the first one at the top.
Potts:
Mm-hmm.
Judge:
It's the first page?
Wolfe:
Right.
Potts:
Yes.
Judge:
Okay.
Wolfe:
Thank you. Because the -- in the -- in the recording there's a reference to a post on the 12th, which --
Judge:
A reference to what?
Wolfe:
A reference to a post made on the 12th, which would be the first one at the top, "recent post."
Judge:
Oh, March 12th, 2019.
Wolfe:
Right.
Judge:
Okay.
(AUDIO/VIDEO BEING PLAYED)
Judge:
Do you want to remember time you come back in, Corporal Potts?
Potts:
I don't, Your Honour. It is some time, though, so --
Judge:
It would be --
Potts:
-- it would be --
Judge:
It's a convenient time to break.
(AUDIO/VIDEO STOPPED)
Judge:
I mean, I guess, we're going to have to look at the entire thing, in any event, so we might as well break there. So you're out for a good period?
Potts:
Yeah, at least in there five or ten minutes, at least.
Wolfe:
If there were counsel, I'd be speeding ahead.
Judge:
Yeah, I understand that. But given the circumstances it's appropriate we have a look at the entire thing.
Fox:
There are a few times when the corporal had left the room and there was no audio, there was nothing occurring, I'm not saying anything. I would have no objection to skipping over those parts.
Judge:
Mm-hmm. Okay. You don't -- Mr. Fox, you feel that there's nothing relevant happening during those periods of time?
Fox:
Oh, definitely not. And there is actually a pretty significant amount of time because he did step out of the room. There's this time. There's another time where both of us are out of the room.
Judge:
Mm-hmm.
Fox:
And I think there was another time when Corporal Potts had also stepped out, and in total it could be maybe a half hour or so.
Judge:
Okay. All right.
Potts:
The other times, Your Honour, will be all captured on audio recorder when we went for a smoke break.
Judge:
Okay.
Potts:
We'll have to switch back to --
Wolfe:
Right. And I have a separate disk for that, so I've got to --
Judge:
For the smoke break. Yeah. Yeah. And so, Mr. Fox, I mean, you're entitled to have me consider the entirety of your -- of your dealings even when there's nobody in the room as part of the voir dire on voluntariness. You understand that?
Fox:
I do. Thank you.
Judge:
Okay.
Fox:
And if people want to watch me sitting in a chair by myself twiddling my thumbs, then --
Judge:
I don't know if it's a question of want. It is just a question if making sure that the entire record --
Fox:
Right, right.
Judge:
-- is -- is considered on the issue of voluntariness. Okay. All right. In any event, let's take the break and we'll come back at two o'clock. We're about 10 -- at line 1081. Is that right?
Wolfe:
That's correct.
Judge:
Okay.
Wolfe:
And for the record, it will indicate that the -- right now the video's stopped at 3:43 and 59.
Judge:
Thank you. Okay. We'll see you at two o'clock.
Wolfe:
Thank you, Your Honour.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED FOR NOON RECESS)
(PROCEEDINGS RECONVENED)
Wolfe:
Wolfe, initial B., for the provincial Crown, Your Honour. Recalling the Fox matter.
Judge:
Thank you.
JASON POTTS,
recalled.
Judge:
So we're continuing at -- from 3:43 here.
Wolfe:
Yes.
Judge:
Okay.
Wolfe:
So this portion of the video which depicts Mr. Fox alone in the interview room by my count goes to 3:55 and 32 -- and 32 on the clock.
Judge:
Oh, okay. 3:55?
Wolfe:
So we're at 3:44. So --
Judge:
Yeah.
Wolfe:
So the issue is, you know, I appreciate that Mr. Fox, and it's not an insignificant point, is self-represented. And unlike a case where I could speak to defence counsel and we're all agreed that I could speed through, and I appreciate he has before the lunch break indicated no contest about speeding ahead, I'm really in your hands about how you want to manage this.
Judge:
Yeah. I guess there's two -- there's two ways of doing it, I suppose. The -- I've seen videos in the past where there's, you know, several utterances and talking going on by the accused sitting in a room all by themselves. They're having a conversation with themselves, essentially.
Wolfe:
That's right.
Judge:
I've seen those ones. I've seen those ones, but I don't know if this is one of those ones or not, so I -- you know, I guess we -- unless -- unless people -- and I appreciate your point, Mr. Wolfe, that it's not -- it's usually not appropriate to seek those kind of admissions that nothing of relevance is happening from an accused when the -- in this kind of situation, but I find that fast-forward the thing, then you miss -- you miss any audio that is in there, so…
Wolfe:
Well, you know what it does do? Even if there's no audio, you have to assess all of the environmental factors on voluntariness. There may be some value in watching --
Judge:
We'll have to do it the long way, I think. So we're going from -- you're at 3:44 to about 3:55 or something?
Wolfe:
Give or take, yeah.
Judge:
Okay.
Wolfe:
Okay.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
EXAMINATION IN CHIEF ON VOIR DIRE BY MR. WOLFE, CONTINUING:
Wolfe:
Now, at this point I understand this to be the smoke break. Is that correct?
Potts:
Correct.
Wolfe:
By my count on the video Corporal Potts and Mr. Fox don't re-enter the room, Your Honour, until about six minutes later. And so I can move the video up to where they re-enter.
Judge:
Okay.
Wolfe:
The six-minute interval is on another disk, so I will have to queue it up so you can hear what goes on there.
Wolfe:
Is that correct, witness?
Potts:
That's correct, yeah.
Judge:
All right. Thanks.
Wolfe:
So just for the record, I'm restarting the video at 4:11:46 on the video clock.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
Wolfe:
Sorry. That actually -- I just want to confirm with the witness at this point.
Wolfe:
The smoke break, do you understand that to have been transcribed?
Potts:
Mm-hmm.
Fox:
Oh, yeah, it is.
Wolfe:
Right.
Judge:
So the transcription of the smoke break comes at line 1228? And -- or around there, and then it goes -- where do we recommence on -- what line are we recommencing on the interview room portion?
Wolfe:
Well, we can see they're -- I would say, witness, if we go to the exhibit -- transcript that you have --
Potts:
Mm-hmm.
Wolfe:
So if we go to line 1225, we have, "Yeah, yeah, yeah, come on out." And then there's a reference to Derek at 1234. You're out of the room at that point, are you not?
Potts:
Yeah, it's around that time when we're --
Judge:
When were you back is my question.
Potts:
Yeah.
Wolfe:
All right. And then that transcript started -- sorry.
Potts:
I believe it's around 1375.
Judge:
1375. Okay.
Wolfe:
So that's when they're getting back into the room, right? Is that correct --
Potts:
Correct.
Wolfe:
-- witness? It should be --
Judge:
Yeah, it's on --
Wolfe:
"Thanks. Thanks."
Judge:
I have that --
Wolfe:
"Also I'd never publish anything about anyone."
Wolfe:
And at that point they're in the room, correct?
Potts:
Correct.
Judge:
Okay.
Wolfe:
So may I restart the video, then?
Judge:
Sure.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
Wolfe:
Just to let you know, Your Honour, at this point just over seven minutes elapse before Corporal Potts re-enters.
Judge:
Okay. All right.
Wolfe:
So if I may, I'll just resume playing the video.
Judge:
Okay.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
Wolfe:
Witness, I understand that's as much video recording as there is in the interview room. Is that correct?
Potts:
Yeah, it switches to my audio recorder. That's the last time we see Mr. Fox on the video. The only last thing of note is me returning to the interview room, and then I show the props to the camera that I set up.
Wolfe:
So why don't we -- all right. We'll go ahead to that spot, Your Honour.
Judge:
Okay.
Wolfe:
And I take it there's no objection?
Fox:
No.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
Judge:
Okay.
Wolfe:
So if we take the break, I'll load up the other disk.
Judge:
Yeah. Thanks. Let's take the afternoon break, then. Okay. Thank you.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)
(PROCEEDINGS RECONVENED)
JASON POTTS,
recalled.
Wolfe:
Wolfe, initial B., for the provincial Crown, Your Honour.
Judge:
All right. We're back. Now we're playing the audio from a couple of times that Mr. Fox was not on camera. Is that right?
Wolfe:
That's correct.
Judge:
Okay.
EXAMINATION IN CHIEF ON VOIR DIRE BY MR. WOLFE, CONTINUING:
Wolfe:
So just to be clear with this, the recording we are going to listen to now was derived from a handheld digital recorder?
Potts:
Correct.
Wolfe:
And was it also operating through the interview that we just witnessed?
Potts:
Correct.
Wolfe:
So the segments that we are going to listen to are just that, segments of an entire recording, correct?
Potts:
Correct.
Wolfe:
And it starts at the same place as the video recording, then you exit the room, do you, and then go to the cells? Is that correct?
Potts:
Correct.
Wolfe:
And then --
Judge:
So line 4. Is that right?
Wolfe:
The fourth. Right. Give or take.
Judge:
Okay
Potts:
Yeah.
Wolfe:
And then that's the initial section, so I -- am I correct that I can start the recording of this handheld digital device at the beginning, correct?
Potts:
Yes.
Wolfe:
And then we'll move over to a second segment which can be identified as the smoke break?
Potts:
Correct.
Wolfe:
And then a third segment towards the end of your interaction with Mr. Fox when you returned him to the cells. Is that correct?
Potts:
Correct.
Wolfe:
Okay. Is that -- is that fair enough, Your Honour?
Judge:
Yeah. Thanks.
Fox:
I'm sorry, what line did you say we're going to? I missed that.
Wolfe:
I have it on times.
Fox:
Oh. Okay.
Wolfe:
But we'll get you there.
(AUDIO BEING PLAYED)
(AUDIO STOPPED)
Judge:
Okay.
Wolfe:
So, witness, we're now into the interview room.
Potts:
Correct.
Wolfe:
Is that correct?
Potts:
Correct.
Judge:
What line does the next portion begin?
Wolfe:
Can you help the court out there?
Judge:
Yeah. Do you --
Wolfe:
I mean, I have it on 26 on mine, but I think my -- mine's a little different than yours. The next -- you mean the next segment?
Judge:
The next segment, yeah.
Wolfe:
Oh. Oh. I'm doing it on times. It will be at 1:38.
Potts:
I believe it's around 1227.
Judge:
Line number 1227. Okay. Yeah, that sounds -- I've got that too. Thanks. Okay.
Potts:
You're welcome, Your Honour.
Judge:
4:05:20. Somewhere around there.
Wolfe:
So I'm going to start it just briefly before that.
Judge:
Okay.
(AUDIO BEING PLAYED)
(AUDIO STOPPED)
Wolfe:
I understand that to be back into the interview room, correct?
Potts:
Correct.
Wolfe:
So the last segment, Your Honour, begins around 2:13 on the clock.
Judge:
Okay. Around line 1573. Does that sound right, Corporal?
Potts:
Without hearing the audio, it could be incorrect, Your Honour, but I thought --
Judge:
Okay.
Wolfe:
It will be -- I'll have it queued it up in a minute.
Potts:
1590, I thought.
Judge:
Okay.
Potts:
But I could be incorrect. At around 1594, 1595.
Judge:
Okay.
Wolfe:
I'll just start it a little before that at 2:12:36.
(AUDIO BEING PLAYED)
(AUDIO STOPPED)
Wolfe:
Okay. So now you're back in the interview room, correct?
Potts:
Correct.
Wolfe:
So between these two recordings that's your entire interaction with Mr. Fox. Is that correct?
Potts:
Correct.
Wolfe:
Was there ever a time when you interacted with Mr. Fox that was not recorded?
Potts:
No.
Wolfe:
And what we listened to on this, is this a true and accurate copy of the recording you made --
Potts:
Yes.
Wolfe:
-- with respect to the interactions outside of the interview room.
Potts:
Yes.
Wolfe:
I don't think I have any further questions of this witness on the voir dire.
Judge:
Okay.
Wolfe:
I do seek to have the disks marked as exhibits in the voir dire. I have --
Judge:
And how many disks are there?
Wolfe:
Two. I've handed one already to the clerk. It can be -- that was the first one, the audio/video.
Judge:
Okay. The -- Exhibit F, then, is the audio of the interview room, and Exhibit G is the audio of others outside of the interview room. Okay.
MARKED G FOR IDENTIFICATION: Audio recording of Corporal Potts' interactions with Patrick Fox outside of the interview room
Wolfe:
So before the voir dire is concluded with respect to this witness, there's an opportunity now for Mr. Fox to --
Judge:
Yes.
Wolfe:
-- cross-examine Corporal Potts only with respect to voluntariness.
Judge:
Yes. Mr. Fox, on the -- on the voir dire, which is related to the voluntariness of the statement, we're inside that voir dire and you're entitled to cross-examine Corporal Potts on his evidence at this point in time on that issue of voluntariness.
Fox:
Right. I have no questions in that respect.
Judge:
Yeah. Okay.
Fox:
Thank you.
Judge:
Thanks. Just let me make a note of that.
Wolfe:
I have in the works formal submissions with respect to voluntariness.
Judge:
Yeah. I don't know if you need them.
Wolfe:
I'm in your hands on that point.
Judge:
I would just -- we can -- do you want to make submissions now, or --
Wolfe:
My preference is in order to create a record --
Judge:
You want to start tomorrow?
Wolfe:
I think I would have something written and provide you a copy tomorrow morning.
Fox:
Sure.
Judge:
You only have one disk? Madam Registrar only has one disk.
Wolfe:
Yes. The other's in the contraption.
Judge:
Oh.
Wolfe:
And I can pull that out right now.
Judge:
Sure. So G is in Mr. Wolfe's hands, and then he's just going to hand that up now.
Wolfe:
Yes. I'm coming -- coming with it right now, Your Honour.
Judge:
Okay. So we've got tomorrow -- tomorrow's our last day that's scheduled, isn't it?
Fox:
Yes, it is.
Wolfe:
That's correct. And I can also indicate for Mr. Fox and yourself that Corporal Potts is the Crown's last witness.
Judge:
Right. Okay. All right. So I've got that. So --
Wolfe:
And I have a few more questions outside the voir dire for the witness.
Judge:
Oh, you do.
Wolfe:
I do.
Judge:
Okay. Then -- then do you want to ask those questions now?
Wolfe:
I can do it in advance of your determination with respect to the statement.
Judge:
Sure, let's do that --
Wolfe:
They're fairly --
Judge:
-- while we've got him here.
Wolfe:
-- fairly brief.
Judge:
Then you don't have to -- you may not have to come back tomorrow.
Wolfe:
Thank you.
Judge:
So we're outside the voir dire now, Madam Registrar.
Wolfe:
Yes.
Judge:
We're back into the trial proper.
EXAMINATION IN CHIEF BY MR. WOLFE:
Wolfe:
Witness, you said that you've been with the RCMP for 10 years.
Potts:
Correct.
Wolfe:
That's your policing experience in total. Did you work for another agency?
Potts:
No.
Wolfe:
Okay. You're familiar with another agency called Canadian Border Service Agency or CBSA?
Potts:
Yes.
Wolfe:
Is that a separate entity from the RCMP?
Potts:
Yes.
Wolfe:
Is it regarded as a third-party agency unconnected to the RCMP?
Potts:
Yes, I suppose. It's a different agency.
Wolfe:
Does the RCMP have unfettered access to CBSA databases?
Potts:
No.
Wolfe:
Those are my questions.
Judge:
Okay. Thank you. Now, Mr. Fox, do you have cross-examination for Corporal Potts on anything else?
Fox:
There -- there were a couple of questions I did want to ask.
Judge:
Sure. Absolutely.
Fox:
The first is I just want to clarify the accuracy of one of the lines in the statement. Paragraph 8. It's a very minor -- oh, is it? Yeah, 8. It's a very minor thing, but…
Judge:
At line 8 on the first page, you mean?
Fox:
Line 8. Sorry. Sorry. Line 8. Yes.
Judge:
On the first page. Okay.
Potts:
Okay.
CROSS-EXAMINATION BY THE ACCUSED:
Fox:
In here it's written as, I say, "I think we're on a first-name basis." Is that correct, or had I actually said, "I don't think we're on a firstname basis," or "We're not a first-name basis"?
Potts:
I think you said "I don't think we're on a firstname basis."
Fox:
Okay. Yes.
Potts:
Yeah.
Fox:
That is right. Okay. So --
Potts:
Yeah.
Fox:
-- I just wanted to clarify that.
Judge:
Okay. I've changed that. That makes more sense logically given the content of the statement. Okay.
Fox:
And for the record, this document -- sorry, I didn't write down the exhibit number, but the printout from the Desi Capuano website.
Judge:
That's Exhibit D.
Wolfe:
Exhibit D.
Fox:
Okay.
Wolfe:
D, for David.
Fox:
Right.
Fox:
The ordering of these pages, is that how it's ordered on the website or did these pages fall out of order somehow?
Potts:
Yeah, if you -- we watch again, we were kind of going through it, you and I.
Fox:
Yeah.
Potts:
It's definitely possible that we mixed up the order when we were looking at them together.
Fox:
Okay.
Potts:
So yes, I can't say that that's the same order as on the website.
Fox:
Right. Right. Throughout the interview I made a number of references to my expectation that CBSA was going to or intending to deport me if I surrendered myself.
Judge:
Yeah. I mean, the statement speaks for itself. Is there a question you wanted to ask --
Fox:
Oh, yeah. That was leading to it.
Judge:
-- after that?
Fox:
Yes.
Fox:
At no point in the interview -- oh, no. Sorry. That's a statement, not a question.
So given that I repeatedly made reference to that, to my expectation that that's what was going to happen and that they had told me that's what they were going to do, did you at any time ask me why or ask me anything about that?
Potts:
Wouldn't that be evident on the transcript, Your Honour?
Judge:
Well, it is. I mean, it's evident. I mean, whether he did or not --
Fox:
Right.
Judge:
-- you can -- you can argue later on that he didn't because it's -- it may -- it will be --
Fox:
Right.
Judge:
It's right there in the record.
Fox:
And then that would then get to the real question that I was leading up to.
Judge:
Okay.
Fox:
Which would be why did you not ask me anything about that? I mean, given that I had mentioned it a number of times, yet when I speak of going to the border in the statement I made no reference to that at all. Was there a reason you didn't touch on that, or?
Potts:
Can you clarify your question, what you're --
Fox:
Sure. The question --
Potts:
Yeah.
Fox:
-- is why did you not in the course of the interview ask me anything about what happened with respect to whether or not I was deported or removed by CBSA when I went to the border given that I had made numerous references to that being my expectation and all?
Potts:
Yeah. I -- I obviously -- I didn't think of -- I didn't think of it at the time. There's a few times we do touch on, you're kind of -- you're at the border and then I asked you about that, you carried on through the U.S. border.
Fox:
Right, right.
Potts:
I did not obviously -- either didn't think of it or didn't see the -- the reason to ask that question.
Fox:
Okay. So, just a suggestion -- I'm going to suggest that perhaps you or the RCMP already knew what the situation was with the CBSA, and if you had acknowledged that I was deported it would have been very difficult to proceed with any kind of criminal prosecution or investigation, no?
Potts:
Absolutely not. And I -- I knew about this file from 9 a.m. that day. I was briefed by the primary investigator and given kind of objectives for the interview, but there was nothing that -- that I'm aware for what you're speaking to.
Fox:
What were the objectives for the interview? I notice the disclosure that was provided this time didn't state it, whereas previously with the criminal harassment case the disclosure included your objectives, and so it didn't seem --
Potts:
Yeah, I probably had more time with that one.
Fox:
I see.
Potts:
I was dealing with other -- on this day dealing with other matters --
Fox:
Right.
Potts:
-- [indiscernible]. It was talking about you arriving at the border and how you -- your means of getting to the border was one of them. You -- I ask you about how you went to the border, asking about where your -- the storage keys. One of the main objectives was to prove that these are your notes.
Fox:
Mm-hmm.
Potts:
And that you made these notes. And then also just discussion about the -- the website.
Fox:
Right.
Potts:
And that's about it.
Fox:
Okay. Interesting. Speaking of the website, and I bring this up only because you had actually asked quite a number of questions about it in the interview and that's what we're talking about right now is the interview. It seems to me that the website is in no way at all related to or relevant to the issue of me crossing the border or the charges that you were investigating. I'm curious. Can you tell me why it is that you were pursuing lines of questioning about the websites as it wasn't at all related to that, or?
Potts:
Yeah. So I had a conversation with Detective Fontana that morning, the VPD lead investigator. She had asked if during our --
Judge:
I'm sorry. Who?
Potts:
Fontana.
Judge:
Okay.
Potts:
With the Vancouver Police, Your Honour.
Judge:
Okay.
Potts:
She was aware that we would be -- the RCMP would be interviewing you and requested that -- she said that they weren't prepared to arrest or I guess proceed, but asked that you advise you that you're under investigation and, again, provide you with the same caution that we provided you with that you don't have to say anything and anything you san can be given in evidence.
Fox:
I see. Okay. That's all. I have no further questions.
Judge:
Okay. Okay.
QUESTIONS BY THE COURT:
Judge:
So, Corporal, you're saying this is -- your only involvement in the investigation was to conduct this interview?
Potts:
Correct, Your Honour.
Judge:
Okay. Anything arising from that, counsel?
Wolfe:
No.
Judge:
Or Mr. Fox. Okay. Thanks. We're finished with the Corporal, are we?
You are released, Corporal Potts. Thanks for coming.
Potts:
Thank you, Your Honour.
Judge:
Appreciate it.
(WITNESS EXCUSED)
Judge:
And we're back at 9:30 tomorrow, Mr. Fox, just to have submissions about the voluntariness of that statement, and then I'll make a ruling on that and then Crown's case will be -- or I understand that will be the Crown's case. Then I'll call upon you, Mr. Fox, to ask you whether you have -- and again, you're not obliged to because the Crown has the -- obviously the burden of proof on every essential element of the offence, but -- so you're not -- you're not obliged to give any evidence or to tell your side of the story. You don't have to but you're certainly entitled to. And so I will ask you at that time whether you want to proffer any evidence on behalf of yourself, okay?
Fox:
Yes. It was my understanding, though I could be wrong, but do I not have the opportunity at the close of the Crown's case to put forth an application to dismiss --
Judge:
Yes.
Fox:
-- if I feel that they've not met their burden?
Judge:
Absolutely.
Fox:
Okay. Just making sure because you didn't mention that, so I was making sure.
Judge:
If you have -- if you have a belief that there is no evidence on one of the essential elements of the offence --
Fox:
Right.
Judge:
-- you can make an application to have them -- have the case -- have that charge to have no evidence, you can make a no evidence motion and we can deal with that before I ask you whether you want to call evidence, okay?
Fox:
All right.
Judge:
And so I will -- I'll cover that off after the Crown's case is closed. I'll ask you if you have any motions to make, and then we'll go from there, okay?
All right. Anything else, Mr. Wolfe?
Wolfe:
No, Your Honour.
Judge:
All right. See you at 9:30 tomorrow, I guess.
Fox:
Thank you.
Transcriber: A. Pinsent