Transcript of Trial Proceedings (2019-08-15)
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 15, 2019
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
(DAY 4)
(DAY 4)
244069-5-BC
Vancouver Registry
In the Provincial Court of British Columbia
(BEFORE THE HONOURABLE JUDGE ST. PIERRE)
Vancouver, B.C.
August 15, 2019
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
(DAY 4)
(DAY 4)
Crown Counsel: Bernie Wolfe
Appearing on his own behalf: Patrick Fox
INDEX
EXHIBITS
- Nil
RULINGS
Vancouver, B.C.
August 15, 2019
Wolfe:
Yes, Your Honour. Wolfe, initial B., for the provincial Crown. Recalling Fox for continuation.
Judge:
Okay. Thank you. Mr. Fox.
Fox:
Good morning, Your Honour.
Judge:
We're at that stage of the case where the Crown are making submissions with respect to the voluntariness of that statement. And once we've finished with that, then the Crown will be in a position to tell me whether they're closing their case or not. Mr. Fox.
Fox:
Before we proceed with that --
Judge:
Yeah.
Fox:
-- may I take a moment to make a correction on -- I've been misusing the terms "removed" or "deported." And it just occurred to me this morning when I was in the holding cells at North Fraser before I came in that it might not be too -- or very significant for the purposes of these proceedings, but the context of the immigration law and border enforcement, it is quite significant because in those contexts a person can only be removed if they're already inside or within the country. When a person's at a port of entry they're considered to be outside seeking entry at that point. So when I was at the Peace Arch port of entry, from CBSA's perspective I was considered to be outside seeking admission to Canada. And so technically they wouldn't have removed me; they would have only denied me admission.
Judge:
The -- the Americans, you mean?
Fox:
No, no. The CBSA. See, even though CBSA's building -- just like on the U.S. side, CBP's building is on U.S. soil --
Judge:
Yeah. But are these arguments that -- what's the import of you telling me this now? I mean, I -- because obviously you can't give evidence from -- from where you are right there.
Fox:
Right.
Judge:
But -- so what's -- what's the purpose of you telling me that?
Fox:
Well, one, I'm bringing it to the court's attention that I acknowledge that I've been misspeaking by saying that CBSA removed or deported me when technically they didn't remove or deport me; they merely denied me admission. The other reason I bring it up is that at some point it may become --
Judge:
Technically CBSA denied you admission?
Fox:
Admission to Canada, yes, because I was at a port of entry.
Judge:
Okay. But you were in Canada.
Fox:
Well, yes. It's kind of a funny situation. Like, a port of entry typically is located within the country whether it's on the U.S. side or the Canadian side.
Judge:
Yeah.
Fox:
And so I was on Canadian soil and I was in the province of British Columbia. However, within the context of immigration law you're considered when you're at a port of entry to be seeking admission. You're outside, from their perspective, of Canada and seeking to enter.
Judge:
Okay. Well, we'll discuss the import of that if it becomes relevant.
Fox:
Right.
Judge:
At some point when there -- if there's some evidence that's relevant to that. Okay.
Fox:
But as I said, I don't believe that it is significant or very relevant to these proceedings, but I just wanted to make it clear that I realized I've been using the wrong terminology.
Judge:
Okay. Thank you.
Fox:
Thank you.
Judge:
So -- so we're -- with respect to the -- back to the statement, Mr. Wolfe. Do you have any -- do you have any comments on that?
Wolfe:
On the voluntariness?
Judge:
On what Mr. Fox has just articulated or --
Wolfe:
Regarding terminology and --
Judge:
Yeah.
Wolfe:
-- ports of entry and such?
Judge:
Anything to add to that?
Wolfe:
To add to that?
Judge:
Yeah.
Wolfe:
It seems wholly irrelevant and --
Judge:
Yeah.
Wolfe:
-- beyond that I have nothing to say.
Judge:
Okay.
Wolfe:
So what I've produced, Your Honour, are two short briefs. One law, principally, another, a shorter one, is submissions. They both address voluntariness of the statement. There is a case book for the court to consider. I will give copies to Mr. Fox.
Judge:
Now we're in the submissions on the voir dire. Yeah.
Wolfe:
Yes. Thank you.
SUBMISSIONS ON VOIR DIRE FOR CROWN BY MR. WOLFE:
Wolfe:
The -- the larger or longer brief, which is 12 pages, is a review of authorities which I have no doubt whatsoever are completely familiar to you, but it's a matter of having the brief become inserted into the court record to place in so that it's clear that -- if you rule the statement voluntary that Crown had formal submissions attempting to assist the court to articulate the tests and law.
So you'll see --
Judge:
Yeah. Yeah.
Wolfe:
Dealing with Oickle, I reference paragraphs in it as an overview, and then on page 3 I deal with the -- I'll call the -- some -- beginning with the factors that one considers, threats or promises, and references Ibrahim v. The King, going back to 1914. And then referencing Oickle at page 4 of my brief dealing with inducements. Oickle at paragraph 57, also Spencer and Singh. And then the issue of quid pro quo is at paragraph 7 of my brief and how -- and what that means, and there's a reference to Spencer and the facts of Spencer and the robberies he was charged with and he was convicted and how the B.C. Court of Appeal overturned the trial judge's ruling on the basis of an incorrect test being applied, and then the Supreme Court of Canada allowed the appeal and restored the convictions. And this is at page 6 of my brief.
Judge:
And is this -- is this something that Mr. Fox had prior to today?
Wolfe:
No.
Judge:
And I just -- I just want him --
Wolfe:
Sure.
Judge:
-- to understand the -- the -- Mr. Fox, do you have any familiarity with the test of common law voluntariness? Is that something --
Fox:
Absolutely none.
Judge:
Okay. And --
Wolfe:
Well, it's probably worthwhile to go through this in some detail.
Judge:
And at the end of the day just for my benefit, but the --
Wolfe:
Sure.
Judge:
Mr. Fox, will you be making submissions with respect to the voluntariness of this statement?
Wolfe:
I was not intending to.
Judge:
Okay. We still have to go through the -- through the voluntariness on a common law basis, Mr. Fox, but the -- but I think I'm going to truncate the matter because, Mr. -- Mr. Wolfe, you have a -- you have a very lengthy brief here and many decisions on voluntariness which I don't think are going to be entirely necessary to go all the way through --
Wolfe:
Sure.
Judge:
-- given the facts.
Wolfe:
So if -- then if you look at the shorter one.
Judge:
Yeah.
Wolfe:
That's three pages.
Judge:
Okay.
Wolfe:
It kind of deals more particularly with Potts, Hawkins and Brown.
Judge:
Right.
Wolfe:
And perhaps it would be quicker, then, for the court or more useful if I just stand here and let you read it because it's quite short.
Judge:
Could be. This is the additional submissions?
Wolfe:
That's correct.
Judge:
Yeah. So, Mr. Fox, the statement here and the common law voluntariness issue. At common law it's well-established that the Crown has to prove voluntariness beyond a reasonable doubt. And voluntariness in a common law scenario is that -- has always been concerned with reliability, essentially. As a result traditionally the courts have focused on whether there were these -- in paragraph 1 there, these inducements, threats, promises, quid pro quo, things of that nature, coercive action on -- on behalf of the people in authority who are questioning you. And so the statement to that person in authority, here Corporal Potts, essentially there has to be an environment that's free from some fear of prejudice or hope of advantage for you talking to Potts. And in this case reliability is -- is the question and whether there will -- whether your will was overborne by any extraneous factors.
Wolfe:
I agree with -- completely with your summation there.
Judge:
Okay. And so -- and then -- so Mr. Wolfe has -- has articulated and summarized the evidence that may pertain to those issues in that additional submissions, and that's the argument that Mr. Wolfe is making. So maybe if you have -- you can go through that, Mr. Wolfe, and --
Wolfe:
Sure.
Judge:
Yeah.
Wolfe:
Absolutely. So regarding the additional submissions, it's abundantly clear from the video there were no offers, promises or inducements, quid pro quo, threats, intimidation or attempts to persuade the accused of his guilt. There were no attempts to confuse the accused about facts or try to trick him into eliciting incriminating statements from him. It was also clear that the accused had an operating mind as he responded in a manner signalling to Corporal Potts that he, Fox, understood what was being said to him by Potts. There were no complaints voiced by the accused to Potts.
Throughout Potts' interaction with the accused the accused never complained about anything to the Corporal. Potts is seen in the video conducting himself in a manner that was professional, straightforward and to the point. Potts was polite, sympathetic and asked straightup questions of the accused. The accused was loquacious and keenly aware of the questions being asked of him. His will was not overborne. It's clear he answered questions when it suited him. Potts attempted to elicit, for example, who was the insider who leaked information to the accused, and here the accused politely but firmly shut down that line of inquiry. There was between them a lively exchange of ideas but only to the degree the accused wanted. The accused was clearly in command of his statements.
He was comfortable, being given a smoke break and food and drink at appropriate times. Potts never tied the provision of anything to obtaining information from the accused.
The accused spoke freely and always to the degree he wanted. Potts' tone of voice was low key, not hectoring or interrupting. There was no trickery, no lies to abide Potts. It's clear that the props used appeared to be genuine and familiar to the accused as they were his. There was nothing used which was not true being put to him. There were no suggestions of perhaps having evidence that might incriminate the accused. Potts was entirely above aboard when dealing with the accused. There were no quid pro quos even during the interview -- ever during the interview, no oppressive atmosphere present during the interview. In the interactions between the accused and Constable Brown and Constable Hawkins indicate the same level of professionalism in complete compliance with the factors or testaments heeded in Oickle and therefrom.
And then I reference paragraphs 68 and 69 of Oickle.
…in reality the basic idea is quite simple. …a confession will not be admissible --
And I'm truncating the paragraph, just for the record.
[The] confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. Both the traditional, narrow Ibrahim rule and the oppression doctrine recognize this danger. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision. The doctrines of oppression and inducements are primarily concerned with reliability.
Which is what's -- you yourself voiced, Your Honour, just a few moments ago.
However, as the operating mind doctrine and Lamer J.'s concurrence in Rothman…both demonstrate, the confessions rule also extends to protect a broader conception of voluntariness "that focuses on the protection of the accused's rights and fairness in the criminal process."
And it cites Sopinka and Lederman.
Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, this Court's jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.
I say therefore, Your Honour, that there was no oppression, no issue about an operating mind, no trickery, no improper conduct, no inducement by any constable in contact with the accused. In the context of the statement he gave to Corporal Potts his will was not overborne. The statement is reliable and his rights were protected and the process surrounding this statement was fair. The witness Potts was clear that the recorded interview was the entire interview and he had no dealings which were not recorded.
The court is well positioned solely by reference to the recording to assess voluntariness. All of the factors which might be considered to determine if the accused's statement was voluntarily given clearly show they are positively in favour of the admission of the accused's statement for the purpose proffered by the Crown. It was a voluntary statement.
So Crown would seek to have the voluntariness declared and have the statement reserved for the purpose of cross-examination of the accused and that the evidence of Hawkins and Brown within the voir dire be admitted into the trial proper.
Judge:
Okay.
Wolfe:
Any questions arising from that, Your Honour?
Judge:
Not from me. Mr. Fox, do you have any submissions to make with respect to that?
Fox:
I would just want to say with respect to paragraph 64.16.
Wolfe:
Yes.
Fox:
I could not possibly say whether there was any trickery or lies told by Constable Potts. I simply don't know.
Judge:
Yeah. Yeah.
Fox:
And I'm a little unclear, though, about point 17. There were no suggestions of perhaps having evidence that might incriminate me --
Judge:
This is in the main submission --
Fox:
Oh.
Judge:
-- you're looking at, right?
Fox:
In the three-page document.
Judge:
Oh, in the -- so you're looking at 17?
Fox:
Yes.
Judge:
Yeah.
Fox:
Yes. I wonder if maybe --
Wolfe:
I can explain that. I can --
Fox:
-- Crown could clarify a bit.
Wolfe:
So sometimes, Your Honour -- we know, for example -- and here's -- I hope this will illustrate the point. When an accused is interviewed by a police constable, say, where there's unknown DNA or latent DNA at a crime scene it might be suggested by the interviewer, "Well, what would you say if your DNA was found at the crime scene," whether or not they report it because if one pays attention to how it's phrased, "What would you say," this. It's not a statement that they have it.
Fox:
Right.
Wolfe:
So it's an attempt to try and elicit something incriminating. So there's this conditional hypothetical even aspect to the suggestion. I didn't -- I wasn't alive to anything like that from Corporal Potts.
Judge:
Yeah, there didn't seem to be any evidence of that. And, Mr. Fox, there are many cases where it could be argued that an accused's will is overborne by the simple fact that the police arrive there and start questioning them and saying that you're -- you know, your guilt is inevitable, a finding of guilt because "we have your DNA or we have several" -- "several eyewitnesses that put you at the scene." And -- and in that case, you know, well, an accused may think well, you know, "I'm done," if that's the case.
Fox:
Right.
Judge:
"I might as well try to help myself." But that's -- that's the kind of situation where the police some -- in certain circumstances they're allowed to do that and sometimes it goes too far, but that's the -- that's the issue.
Fox:
Right. Okay.
Wolfe:
And the phrase that's used regarding that kind of -- let's just call it suggestive trickery, the test is whether the community would be shocked by that kind of level of suggestion where there's this alarming reaction to, well, that's just such a bald-faced lie, anybody's free will would've been overborne by that and it's really quite unconscionable. So that -- so it's shocking the community conscience is the test that's used to determine whether the trickery goes too far.
Judge:
Yeah. Any other questions you had about these submissions?
Fox:
No.
Judge:
Okay. Do you have any submissions yourself to make on the voluntariness?
Fox:
No, I don't.
Judge:
Okay. All right. Thank you, Mr. Fox. Yeah.
Judge:
Now, the other -- the other exhibits that were entered during the voir dire, the transcript and CD recording -- there's a transcript of the Charter and warning. I don't know if we need that.
Wolfe:
If it comes to the cross-examination, they should be available to Crown.
Judge:
All right. They'll be -- the transcript -- A, B and C are held back for the purposes of cross-examination. Is that fair? And is also D, E, which is the prop --
Wolfe:
Yes.
Judge:
-- and the notes.
Wolfe:
Yes.
Judge:
D and E are held back for the purposes of cross-examination.
Wolfe:
Yes.
Judge:
And so are -- the whole -- all of them -- F and G as well; F is the interview room DVD and the -- G is the -- is the outside recording, the --
Wolfe:
Yes.
Judge:
The digital recorder.
Wolfe:
Yes.
Judge:
Okay. Is that clear, Madam Registrar?
Wolfe:
Yes, it is.
Judge:
Yeah. No, none of those exhibits A through G are admitted on the trial proper. Yeah. Okay.
Okay. So --
Wolfe:
So I --
Judge:
-- at this point…
Wolfe:
I will formally close the Crown's case.
Judge:
Okay. The Crown's case is closed, then. Okay. And it's at this point, Mr. Fox, that -- and I know you made some -- you made an indication yesterday that you may -- you may be seeking to make a motion for what we call a no-evidence motion or a directed verdict, which is essentially, you know, a motion that says the Crown hasn't -- hasn't led any evidence on one of the essential elements. And so essentially at the close of the Crown's case, if you make that motion, then I would have to determine whether there's any evidence upon which a reasonable -- well, the test is a reasonable jury properly instructed could return a verdict of guilty upon the charges. It's essentially the same test as a preliminary hearing test, and I know you probably don't know much about that test, but --
Fox:
Oh, no, it's different than an insufficient motion.
Wolfe:
Yes.
Fox:
Yes.
Judge:
Insufficient evidence motion. And do you understand that difference, or?
Fox:
I -- I believe so, but I'm not sure that it's critical, really --
Judge:
Okay.
Fox:
-- because I've decided I'm not going to pursue any such motion.
Judge:
Okay. Fair enough.
Fox:
So --
Judge:
So the no evidence motion you say you're not going to pursue.
Fox:
Correct.
Judge:
Okay. And you're entitled to call evidence. If you don't -- if you're not making a no evidence motion, then I ask you, essentially, is -- and you're not obliged to, as I've indicated to you before that you're entitled to. Is there evidence for you on behalf of the defence, on behalf of you, the accused, that you wish to proffer in this case? Is there any evidence?
Fox:
Yes. Some of it I have not yet received. Originally much of my defence was going to be based on the CBSA video, which we've come to learn at this point has been destroyed by CBSA. And so now I have to try to obtain other proof,
and I'm quite confident I will be able to.
Judge:
Well, I can tell you that other proof is -- is often it comes from a person under oath saying, this is what happened.
Fox:
Yes. But given the prior conviction of perjury, I don't expect that my testimony without additional physical evidence is going to carry a lot of weight.
Judge:
Okay. Now -- now, you -- you'll be unable to simply, you know, enter extraneous pieces of paper or videos without being properly admitted somehow, and that's usually through a witness.
Fox:
Mm-hmm.
Judge:
A witness who comes and says, "This is where I got this piece of information, this identifies it." How did you get it, what import it has.
Fox:
That could be a bit of a challenge.
Judge:
So I wonder, did you have an intention of -- of testifying yourself, I guess --
Fox:
Oh, yes.
Judge:
-- is one of the questions. Okay.
Fox:
Oh, yes, very much so.
Judge:
Okay. Well, then I -- I wonder -- and I know you indicated also the other day that you may be seeking an adjournment to obtain some of those materials that you were talking about that would support your -- your -- support the evidence that you were hoping to provide.
Fox:
Yes.
Judge:
I wonder if it's not -- if there's any prejudice or any -- any problem in starting your evidence -- if you're intending to take the stand and to provide evidence, to starting that and then determining whether -- whether an adjournment is appropriate or necessary.
Fox:
Hmm. I would certainly be open to that. I have a little bit of a concern about testifying immediately right -- today simply because at this point I am a little bit exhausted after the four days of --
Judge:
Yeah.
Fox:
-- going through this. I do have some evidence --
Judge:
Welcome to our life every day. Every day. No, I -- I understand you. It's --
Fox:
It's not so much the time in court that's exhausting. It's the time in the holding cells from five in the morning until seven in the evening.
Judge:
Yeah. And again, it's -- that's the same -- you're preaching to the converted, Mr. Fox.
Fox:
I do have some evidence with me, some documents from IRCC, CBSA, et cetera.
Judge:
Mm-hmm.
Fox:
And they may go towards supporting my claims that I'm not a Canadian citizen, but I think what's really going to be critical in this case is what happened on March 15th when I got to the border. Even if I can establish -- even if I can convince the court that I'm not a Canadian citizen and have no status here, that doesn't necessarily mean that CBSA brought me to the border or made me leave on that day.
Judge:
I understand. I understand what you're saying. Now, here's my -- here's my concern, and it's a concern for you, for any accused person, and the court has to be very aware of accused person's, everybody's Charter rights, their rights under the Charter. You have a right under the Charter to have a trial within a reasonable time. And -- and I'm worried that an adjournment to obtain materials that you don't even know are out there.
Fox:
True.
Judge:
I think it's a freedom of information request you're thinking about.
Fox:
That's what I would be thinking. I'm sure the Crown would also have other ways of communicating with CBP or Homeland Security to try to obtain documents, but --
Judge:
Try to obtain a certain thing. Well, I can -- I can tell you there's a bigger concern that I do have, Mr. Wolfe, in that I think the evidence, the gist of Constable Brown's evidence is that she's made inquiries but just hasn't heard back yet on some of them.
Wolfe:
So my recollection of her evidence on this point was no formal documentation from CBSA with respect to an encounter with Mr. Fox on March the 15th, 2019, the CCTV that existed from that day irrespective of what it depicted is no longer available. She was with Hawkins when Mr. Fox was retrieved on April the 4th. Not only was there an American officer present for the handover, but she said, as I recall, there were two CBSA members, one of whom in passing made a comment with respect to Fox being present on a prior occasion which I understood to be a reference to March the 15th. My understanding is that Brown then, when discovering the TV footage no longer existed, undertook an attempt to have any persons identified who may -- not that they did, but may have interacted with Mr. Fox on March the 15th, 2019, because of the passing comment on the 4th of April, which was news to her, regarding any presence of Mr. Fox at the CBSA offices. She made a further inquiry. The name of Gill, as I recall from memory -- I don't know that this was solicited from her in evidence --
Judge:
It was Gill, yeah.
Wolfe:
Yeah. Was a person present on the 4th of April, that resulted in her making a further inquiry but nothing has been returned from CBSA. Do I have all of that right? I think I do.
Judge:
Yeah. But she -- I mean, she --
Wolfe:
So -- so there's this outstanding sort of shopping list, right? Like, okay, Gill. Who's Gill? Gill, do you note anything? Did you make a note, Gill? What do you remember, Gill? Were you with anyone, Gill? What does that person know? Stuff like that, right? So that's -- that's unclear whether there would be anything there, and it brings to mind two observations, if I may. One goes back to an earlier comment that there's no documented record from March the 15th, 2019, from CBSA. That was Crown's evidence.
And then your own observation, as I recall, when Mr. Fox first raised the issue of an adjournment which was -- and I made a note of this because I thought it was an apt observation that you'd be astonished if there were no record with CBSA if Mr. Fox had been deported, and I think that's an apt, reasonable observation to make.
So -- so the issue then brings us to a couple of comments, if I may. I've listened carefully, I think, to Mr. Fox saying he's tired. One I think always has to be alive to creating appeal issues when they don't need to exist about a person's ability to give evidence. At the same time coming from the other direction is the reasonable prospect of anything ever being obtained that could assist Mr. Fox from CBSA. The evidence thus far indicates no formal record. A comment in passing from an officer who was apparently there on the 15th of March. We don't -- we can't say anything about the content or what he or she -- I don't even know if Gill is male or female -- would have anything to say. There doesn't seem to be a basis for -- I mean, the value that could be derived from Gill or another officer can't be determined. It might produce something fruitful but we don't know. So I think the -- the issue -- one issue the court needs to focus on is whether there's enough of a prospect to entertain an adjournment application on that basis.
Judge:
Well, he --
Wolfe:
And --
Judge:
Here's my major --
Wolfe:
Yeah.
Judge:
-- concern is that the Crown obviously in these type of cases has an obligation to prove the essential elements.
Wolfe:
Right.
Judge:
And then -- then an accused can on a balance of probabilities establish there was a reasonable excuse --
Wolfe:
Correct.
Judge:
-- to comply.
Wolfe:
That's correct, yes.
Judge:
Is it -- do we get to a situation where -- you know, where we -- we certainly don't -- you know, you have no obligation to help him establish that evidentiary burden on a balance of probabilities, but we certainly have an obligation not to thwart him either.
So here's the thing. The way I -- the way I see Constable Brown's evidence is that she did go back and tried to follow up with -- with them after, you know, that response that -- she made another request on July 31st, I think.
Wolfe:
Yes, that's correct.
Judge:
Not that long ago.
Wolfe:
That's correct.
Judge:
And she received a call from another CBSA agent and told them they'd made the original request and the CBSA agent said, "Well, that was misplaced or not actioned on," which is a little odd.
Wolfe:
That's correct, yes.
Judge:
And then that he would look into it, found out it was still not available. But then they -- they requested from the CBSA, and she did ask any other officers, whether any of them had contact with Fox on March 15th, 2019. To that request there's been no response.
Wolfe:
That's correct.
Judge:
And -- and I -- and we need one, I think. I mean, he's entitled to have a response to that question.
Wolfe:
May I --
Judge:
Yeah.
Wolfe:
There's sort of -- to me the -- here's the elephant in the room on all of this so far. Would it -- is it even relevant to --
Judge:
It is depending on the nature of the interaction. If -- if the interaction is Mr. Fox turning himself in to CBSA, and CBSA saying -- or whatever, removing him or whatever the -- whatever they did with him at that point, that may be relevant to whether there's a reasonable excuse to fail to comply with the order. Because -- because what they did with him at that point might be involuntary on his part as to whether he was, you know, sent to or told to or forced to or whatever leave the country.
And I mean, the gist of his -- the gist of what he's telling us, I suppose, in -- in his version of the events is that -- is that he didn't have agency over whether he left the country or not.
Wolfe:
Well, these are submissions, of course, and not evidence.
Judge:
Absolutely.
Wolfe:
Right.
Judge:
Absolutely. But that's the gist of the reasonable excuse, at least what he's -- what he's proffered so far.
I'm a little surprised we don't have any evidence from any CBSA officer one way or the other who could come and say, look, we have no records of any interactions. All we've got right now is some hearsay from the police officer saying, "I spoke to folks and they told me they didn't have anything," or "They said they would look." That's all we have.
Wolfe:
Yeah, because in the Crown's case it's just completely irrelevant.
Judge:
I gather that. There's still going to have to be an inference, I suppose, drawn because he's in Canada at one point and then in the U.S.A. I guess the Crown will be asking to draw an inference that at some point during that period of time he was within a hundred metres of the border.
Wolfe:
Well, it's impossible to have it any other way.
Judge:
I'm not --
Wolfe:
It's not teleportation like Star Trek where you sort of leap --
Judge:
Well, not really. I mean, you could fly, you could take a boat.
Wolfe:
That's the -- then you're still within a hundred metres, aren't you? You're just above the ground.
Judge:
Flying? I think you're a little higher than a hundred --
Wolfe:
No, no, that's going up. Like, going this way it's still a hundred metres, right?
Judge:
In any event, if the -- you know, you could be in a boat, there's --
Wolfe:
You're still going to be within -- you have to cross the border. You will be within 100 metres.
Judge:
Well, if you go out the international waters and come around the other side.
Wolfe:
Yeah, I'd like to hear that evidence.
Judge:
The -- well, no, I don't -- my point is is that he's -- he is -- he's entitled to seek that evidence.
Wolfe:
And on that point about the boat and international -- we know from the evidence of Bhimji he's in Vancouver on the 15th.
Judge:
Mm-hmm.
Wolfe:
And then on the 15th later on he's in front of Obrist.
Judge:
Well --
Wolfe:
He comes into the office. There's no indication that there was a boat or -- you know, that becomes --
Judge:
Again, we have --
Wolfe:
-- fanciful, right?
Judge:
-- an obligation not to -- to simply, you know, play hide-the-ball with respect to Mr. Fox.
Wolfe:
Well, I'm not hiding the ball.
Judge:
But -- so there -- and the investigators themselves indicated they were interested in this information. They were interested and focused on how he came to be in the U.S., on who he had interactions with to get to the U.S. and they just hadn't got that answer yet. Now, you may not need that specifically or technically to establish your case, but out of fairness I think we should get the evidence.
Wolfe:
So -- so let's see where we are at this point in the exchange.
Judge:
Yeah.
Wolfe:
Threshold question. Is there a formal application to adjourn for a certain purpose?
Fox:
Yes.
Wolfe:
Can it be articulated for the record.
Fox:
I believe that I will require certain additional physical evidence to support the statements that I intend to make under oath regarding the events that happened on March 15th. And I believe that that evidence is out there and can be obtained. Unfortunately I do believe it is going to take a long time because the U.S. federal -- the U.S. freedom of information requests with Homeland Security do generally take quite a while, six months to nine months or so.
Judge:
I don't mean to interrupt.
Fox:
Sure.
Judge:
Are you -- the physical evidence that Mr. Fox is referring to, is it from both countries or one country, or what's the story there?
Fox:
One -- one piece of evidence that I'm quite confident I'll be able to obtain is documents from CBP that would -- that would show that CBSA had contacted them between the time that I had left CBSA and entered CBP because, as I had said, when I had gotten into line at the CBP office and then I got to the counter, gave the woman my driver's licence, five or six agents or officers swarmed me, put me in handcuffs and asked her, "Is this the guy? Did you verify it?" And so they were anticipating my arrival. They knew that I was coming.
Now, I believe that CBP is more likely to keep accurate records on this matter than CBSA because, as I'm sure we'll find when I testify, CBSA has engaged in a lot of very strange, questionable conduct with their handling of me and my situation.
Judge:
Well, you know, Mr. Fox, maybe it is in order to properly determine whether your request for an adjournment is appropriate or not is -- is to hear some of your evidence. We don't know yet what you're going to testify to under oath.
Fox:
Okay.
Judge:
It could be once you've -- you've testified as to what happened to you on -- what you did on March -- that it's totally irrelevant or immaterial what CBSA has in their possession. It could be. I just -- I don't know until you actually --
Fox:
Right, right.
Judge:
-- provide some evidence, and I think maybe that's the way to proceed, Mr. Wolfe, is --
Fox:
I think that is entirely reasonable. That's a very good point that you bring up. But there is -- there is one other point I think that should be mentioned right now. With respect to CBSA or with respect to Constable Brown saying that CBSA seems to have no records of me or the interactions or me being deported on that day and it seeming very unusual if there would be no records of a person being deported, this would be one of the situations where the difference between being deported and being denied admission becomes very significant because if a person is deported, that is a very significant issue and I'd hope that there would be some records of that. If a person's denied admission to the country, though, that's a much less significant issue. That happens fairly regularly at the border.
Judge:
There would still be some records of a denial of the admission. I would -- I mean, I don't know. I mean, it would be nice to have somebody from CBSA actually provide that evidence.
Fox:
Have them give evidence.
Judge:
But I would suspect that would be the case; otherwise you don't know how -- when folks are trying to enter the country, inadmissible folks, you don't know when and when -- when and where they're doing that. It would be kind of --
Wolfe:
Honestly, a process like that seems so formal, so potentially potent --
Judge:
Yeah. Mm-hmm.
Wolfe:
-- "You can't come here" --
Judge:
Yeah.
Wolfe:
-- for there to be no record. How would you be able to challenge that, right, before the Federal Court of Canada or --
Judge:
Well, you couldn't.
Wolfe:
There would have to be a record. I can't see it being otherwise.
Fox:
And hopefully we will be able to get a CBSA officer in here that would be able to clear those kinds of questions up. I mean, that would be ideal if we could --
Judge:
I mean, and you're entitled to obviously as -- subpoena any witnesses --
Fox:
Right.
Judge:
-- you're -- you want --
Fox:
I need to read up on that.
Judge:
Yeah. Now --
Fox:
Or hire a lawyer.
Judge:
So let me get back to one of the other points, Mr. Fox, is that you indicated you just may not be physically ready or -- to testify today because of, you know, your -- the fatigue that you're saying. Is that fair?
Fox:
That is fair. Also I would want to at least have a little bit of -- a few hours to be able to make some notes about which points to focus on because I don't want to start rambling and drift off into irrelevant matters.
Judge:
Mm-hmm. The -- I mean, it would be ideal of course for you to have a definitive answer from Canada Border Services, you know, prior to taking the stand so you know what they have and Mr. Wolfe knows what they have. I mean, it would be beneficial to both of you, I suppose, depend -- either way to have that information.
Wolfe:
It even might shorten the trial depending on what comes out, right?
Judge:
Even -- even --
Wolfe:
It comes out --
Judge:
It even might shorten the trial.
Wolfe:
If it's a big goose egg, hmm, then it's like, "Hmm, let's reassess this thing," right? But -- and I don't mean for my case. I mean nothing for you.
Judge:
Oh, no, no, fair enough. And it might. And I don't know if it would take that long. I just don't understand why they -- it seems from Brown -- the gist of Brown's evidence is they've been a bit slow in responding.
Wolfe:
So if -- I have a -- I have an idea here on that point.
Judge:
Mm-hmm.
Wolfe:
I can relay your sense of -- you tell me what it is -- frustration or bewilderment or confusion or puzzlement, you decide. I can relay that to the investigator, who can pass it on to CBSA.
Judge:
Okay.
Wolfe:
So how do you want to phrase that?
Judge:
I would -- I would appreciate that, just what you said, my frustration in that. I mean, it -- it seems a material part of the evidence that either way might make a difference in how -- how -- the decisions for Mr. Fox and how the case is going to end up turning out. I mean, it really is an important piece of evidence that -- given the context of what Mr. Fox has indicated his, you know, reasonable excuse is going to be.
Wolfe:
Right.
Judge:
Here's the other question. Could we also attend at the judicial case manager's office just to see because I'm here -- just to see what the next, like, an available date would be.
Wolfe:
Are you -- are you away on -- and I don't want to characterize any absence that's personal to you, but are you around until --
Judge:
I'm only away for the next two-week -- oh, as of -- as of September 1st I'm here. I'm back here.
Wolfe:
See, here's my issue with it as Crown. We're some distance away from a Jordan issue, but it doesn't matter. Any adjournment visited where an accused is in custody and quite frankly is unlikely to be released, just given the recent 525 review, it's not a happy situation, right?
Judge:
I agree with you and I've said that to Mr. Fox is my -- your liberty is important to everybody and it should be important to you,
and that's why we try to have these things as expeditiously done as possible.
Wolfe:
So --
Fox:
Right.
Wolfe:
-- there's a big difference between a short adjournment and one where somebody's gathering dust in a cell somewhere. Even though he understands I'm seeking, like, more than a year on the sentence for this thing. That's really not -- because you might completely say, "Forget that." So the issue really is, you know, a short adjournment with a certain turnaround and by then it's like fish or cut bait because you can't sort of, like, hope forever something's going to be produced or not, right?
Judge:
I would think that two weeks would be plenty of time for this -- for the -- this answer to be obtained.
Wolfe:
Well, I can ask them to put their foot to the floor and it's like, this is not a major task, right?
Judge:
It's basically going to a computer --
Wolfe:
I would think.
Judge:
-- and looking in it.
Wolfe:
If it's there.
Judge:
If it's there.
Wolfe:
If it's there.
Judge:
If it's there. Or somebody to say it's not there. It's not there.
Fox:
Sorry.
Judge:
Yeah, go ahead, Mr. Fox.
Fox:
I was going to say one thing -- one piece of evidence that I will be able to bring with respect to CBSA is records that I have obtained from them before which make it very clear that their recordkeeping is very, very shoddy.
Judge:
Okay.
Fox:
There are lots of times that I have entered and left and come back that are not documented.
Judge:
Well --
Wolfe:
There's an admissibility issue, right? Because -- I take this position.
Fox:
Sure.
Wolfe:
A piece of paper with black and white letters on it is a piece of paper with letters on it. Authenticating it and then explaining it is another task altogether. So that goes to admissibility. Forget weight. Getting it so that it's reliable and who can explain it, there may be terms of art on a document that are not apparent to anyone. So that becomes an issue for me as Crown.
Judge:
Okay. Let's find out from the -- can we stand down and find out from the judicial case managers when in September we could come back for --
Wolfe:
How much time? Two days? Three?
Judge:
No, it wouldn't be more than two days, I don't think.
Wolfe:
Two.
Judge:
We've just got Mr. Fox's. Two.
Wolfe:
Two?
Judge:
Two.
Wolfe:
So I can run down to the JCMs and see what your calendar is like, Your Honour, and mine as well. And --
Judge:
Okay. And we'll take an early break and then just come back and try to deal with it --
Wolfe:
Okay.
Judge:
-- at that point. Okay. All right, Mr. Fox. Let's -- let's do that.
Fox:
Thank you.
Judge:
Okay. Thank you.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
Judge:
Thanks. How did we do getting a date?
Wolfe:
So, Your Honour, here's Crown's understanding of the situation. We have a formal application from Mr. Fox applying to adjourn predicated on finding out if there is additional information for his case from CBSA. There is enough evidence on the record indicating a lack of response, but whether or not there is a record of some sort from the 15th of March or a witness available we don't yet know. I invited the court to express its assessment of the response or lack of response, rather, from CBSA, which I can pass on to Constable Brown.
Judge:
Okay.
Wolfe:
The second basis as I understand it from Mr. Fox's adjournment application -- second and third really. Second is he's physically tired, and then he also said he wanted a couple of hours, in any event, to prepare for his direct-examination so that, as he put it, I think he said he wouldn't be rambling.
So it seems therefore there is -- we're at a juncture where you would either grant the adjournment or not. I will say from Crown's perspective, just to put on the record --
Judge:
Yes.
Wolfe:
-- we know the case for the Crown is closed.
Judge:
Yes.
Wolfe:
I am able to proceed today, if I were to cross-examine Mr. Fox.
Judge:
Fair enough.
Wolfe:
And while there's certainly no formal assessment of delay which may accrue, I will at least put on the record if I may that were there such an assessment, I would take the position that the delay would fall to Mr. Fox. Of course you would assess it as you see fit if it becomes relevant.
Judge:
Yes.
Wolfe:
That said, the judicial case managers coordinated their calendar with Robson Square in order to obtain some dates for you.
Judge:
Okay.
Wolfe:
And if you grant Mr. Fox's adjournment request, the returnable dates are October 8 and 10 of 2019, each day beginning in Court 304.
Judge:
Yeah, that's a week I'm supposed to be at Robson, but I can come back.
Wolfe:
Apparently.
Judge:
Okay; October 8th and 10th.
Wolfe:
They've made a switch of some sort. Two full days reserved. I have a scheduling notice to hand up to Madam Registrar who can put it to you for your review.
Judge:
Okay.
Wolfe:
Mr. Fox remains detained. He would be -- if you grant the adjournment --
Judge:
When's his next review?
Wolfe:
Well, he doesn't -- he only gets one.
Judge:
It's not every 90 days?
Wolfe:
No. I understand that you get one out of the gate at 90 and then you're done.
Judge:
Okay. The -- October -- yes. Then, you know, having heard Mr. Fox, I think it fair for him to have the time to prepare but also to have the -- the information that he seeks. The Crown doesn't require it, but it is something that was within the -- it was the investigator's intention to obtain that -- that information; it just didn't come. So -- and it might be relevant -- possibly relevant to a defence that Mr. Fox intends to -- to advance. And out of an abundance of fairness and caution in respect to giving Mr. Fox a fair trial, it's not the perfect trial but we're obliged to provide, but it's certainly a fair one as much as we possibly can accommodate and out of those and considerations, I think it's not -- it's not an extraordinary request to go for another month -- another couple of months, it looks like, to October to finish this thing.
So, Mr. Fox, October 8th you'll be back here. Then we've also got the 10th. Be prepared to proceed on the 8th, okay?
Wolfe:
May I say as well --
Judge:
Yeah.
Wolfe:
-- from Crown's perspective, it would -- Crown would see it as peremptory on Mr. Fox on that day.
Judge:
Okay.
Wolfe:
And --
Judge:
I have that submission.
Wolfe:
There is one other thing you may wish to consider. Single bunking was arranged for Mr. Fox set to expire today. Does the court wish me to -- do you recall that issue, how that actually related --
Judge:
Yes. If you could pass on that, it would be very beneficial, I suppose, for the -- to facilitate the conclusion of this, then, if he could remain in his current status until October 10th that would be -- that would be highly beneficial for his preparation. Yeah, I'd appreciate if you did that. Thanks.
Okay. Mr. Fox, do you have anything to add to any of that?
Fox:
So I will be prepared to testify on October 8th. I will try to obtain as much supporting evidence as I can with the understanding, I guess, that I will still testify if I don't have evidence to prove what I'm saying. It will be up to yourself to decide whether or not --
Judge:
Well, it's up to me to determine whether you've -- whether you've met the -- if -- if the Crown has met their burden, then it's up to you to establish a reasonable excuse on a balance of probabilities and I'll have to determine that. That can be on -- on the basis of any admissible evidence or it could be on the basis of the Crown's evidence. It's on the basis of the entire package of evidence, which includes the Crown and your evidence. So if you get in the box and testify under oath about certain things, you know, in the past in other cases that -- that -- if there's no evidence to -- you know, if there's sufficient evidence to raise the question on a balance of probabilities that you had a reasonable excuse, well, then you might be successful on that. But it's going to have to be on a consideration of everything.
Fox:
Right. Right.
Judge:
Mr. -- Mr. Wolfe has available to him, I just found voluntary, the statement you gave to Corporal Potts as a tool to cross-examine you with.
Fox:
Yes.
Judge:
Okay.
Fox:
Now, I do also want to make sure that you're both aware that the issue of me being denied admission at that point isn't the only issue that I'm going to be claiming. There's also the problem of the probation conditions conflicting. I need to read up a bit on that, though.
Judge:
Yeah. Yeah. I urge you to read up on it. And there will be a collateral attack on the original probation order is not -- and I think we discussed this right at the pretrial conferences -- is not something you'll be able to advance at this stage.
Fox:
I'm not referring to a collateral attack about how these conditions are making it an impossible situation for me but rather how conditions 9 and 10 contradict condition 1, and so I can't comply with the immigration laws and remain in British Columbia at the same time.
Wolfe:
That's --
Judge:
Yeah. All of that will be -- will be -- the consideration is -- is whether that amounts to --
Fox:
Right.
Judge:
-- a reasonable excuse, and so all of that will be considered in that -- in that regard.
Fox:
Okay.
Judge:
Okay. All right. Okay. I think we're back on October 8th.
Wolfe:
Three oh-four, nine a.m.
Judge:
Three oh-four. And then we'll be wherever we are at that time. Okay. Thanks, gentlemen.
Fox:
I'm sorry. I just want to mention that I also will in the meantime look into the possibility of requesting some subpoenas.
Judge:
Yes. And you're --
Fox:
I know nothing about requesting subpoenas, so…
Judge:
And you're entitled to -- to look into that. You need to establish that the -- that the witness has some documents or some direct involvement that are relevant to the case, and a justice of the peace can determine that and issue a subpoena to that witness.
Wolfe:
I need to put something on the record in that regard based on what I have been informed.
Judge:
Mm-hmm. Yes.
Wolfe:
The provincial court has rules regarding issuing a subpoena to opposing counsel before the -- 30 days written notice -- it's spelled out -- counsel is entitled to make representations before the subpoena's even issued.
Judge:
Okay.
Wolfe:
It becomes very contested and complicated. Outside counsel would have to be retained. It's not -- I understand that a potential subpoena does not relate to an ordinary witness. This could become quite complicated.
Judge:
Okay. Well, you get some advice on it, Mr. Fox.
Wolfe:
I just wish --
Judge:
I mean, even if you -- you know, if you don't -- if you don't have a lawyer representing you in court you can at least get some advice on the process and how to achieve what you wanted to achieve as far as subpoenas go, okay? You're entitled to it.
Fox:
Thank you.
Judge:
Yeah. Okay. Thank you. See you on October 8th.
(PROCEEDINGS ADJOURNED TO OCTOBER 8, 2019, AT 9 A.M., FOR CONTINUATION)
Transcriber: A. Pinsent