Transcript of Summary Conviction Appeal Hearing (2022-09-09)

Synopsis

This is the appeal hearing for the appeal of my conviction on the charge of violating my probation order by leaving BC without permission.

The judge presiding over this hearing (Justice Peter Edelmann) was a very highly regarded defense lawyer with an background in immigration law. You would think he would be well versed in the issues of the burdens of proof and the presumptions of citizenship as they are applied to a person who is physically present within an area designated as a port of entry (POE). However, somehow he seems to be completely ignorant of these matters.

At one point, I told Edelmann I presented myself at the POE and was denied admission. Edelmann responded that there is no such thing as a "denial of admission" at a port of entry, a person is either:

allowed to enter Canada; or
they're allowed to leave and return to their country; or
they're removed from Canada.

First of all, saying that the person is "allowed to leave the port of entry by returning to their country" is what? A denial of admission to Canada! How is CBSA saying "We will not grant you admission to Canada, but you're free to return to your own country", not a denial of admission to Canada? And second, you can't be "removed from Canada" when you're in a port of entry because at that point you're not considered to be in Canada!

Then, Edelmann tried very hard to convince me that I must be a Canadian citizen because the US does not deport US citizens. I tried to explain to him that the US is not supposed to deport US citizens but they do p19l32-p20l17; p20l45-p22l45.

Throughout the hearing, Edlemann kept insisting on relying on Polisak's testimony, not on any actual, physical evidence. It has been my experience that the entire justice system in BC wants to rely solely on witness testimony and to ignore physical evidence. I know, that sounds absurd, but then, it's Canada.

The Issue of Subjective Mens Rea

The prosecutor was required to establish that when I engaged in the prohibited conduct (i.e. leaving BC and being within 100 meters of the US border), I did so believing or knowing that by doing so I was violating the probation conditions. If I had crossed the border because I believed I was required to because Polisak told me I was not admissible to Canada, then I did not have the required subjective mens rea. It is not until after the prosecution establishes that I had the subjective mens rea, that I would be required to establish a reasonable excuse for having engaged in the prohibited conduct.

The issue of subjective mens rea did not come up even once during the trial, nor in the trial judge's Reasons for Judgment. Throughout the trial, and in his Reasons, the judge made numerous references to reasonable excuse, but not one mention of subjective mens rea. In other words, the prosecutor failed to establish it and the trial judge failed to consider it. In other words, irrefutable grounds for overturning the conviction.

Prior to this hearing, and listening to the discussion between the judge and the prosecutor, I had no idea what subjective mens rea was or that it was one of the essential elements of a probation violation conviction. That's why I hadn't raised it as one of the grounds of appeal.

Then, during the prosecutor's (Jennifer Horneland) arguments, Edelmann asked Horneland why this is being treated as a "reasonable excuse" case rather than a "subjective mens rea" case. He asked her, if the CBSA officer had put me in handcuffs and dragged me across the border would this be a reasonable excuse case? Horneland responded "No". The judge asked her, if the CBSA officer had put a gun at my head and told me to walk across the border would it be a reasonable excuse case? Horneland replied "No". Then the judge asked her, so how is it any different if an armed border officer orders me across the border? Horneland had no reply! p62l41-p63l13

Then later, while making her arguments, Horneland admitted that the trial judge's failure to address the question of subjective mens rea renders the issue of reasonable excuse moot p67l32-40. This is extremely critical because the prosecutor herself is admitting that her entire case, which is based on the argument that I failed to establish a reasonable excuse for engaging in the prohibited conduct, is bunk!

And, subsequent to that, Horneland continued to rely on two cases (Goleski and Zora), which are about reasonable excuse and the judge stopped her eventually and pointed out that even in those cases the Supreme Court of Canada is saying that regardless of reasonable excuse, the prosecution is still first required to prove mens rea p69l34-p70l8. Horneland said she does not disagree.

From the preceding three paragraphs, you would think the appeal was sure to be granted and a new trial ordered. But no! When he issued his Reasons for Judgment, dismissing the appeal, Edelmann made no mention of these subjective mens rea issues and basically just recited what the trial judge had said in his Reasons.

And this is what passes for "justice" in Canada! Like I keep saying, Canada's justice system is no different or better than the countries they keep accusing of human rights violations (namely Russia, China, and Saudi Arabia).

Sorry for the long synopsis, but there was a lot of very interesting stuff that occurred during this hearing. This hearing alone, almost makes the seven years in jail worth it. Now if only there was a way for me to get my hands on the DARS recordings of the hearing...

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30630-1

Vancouver Registry

244069-5

Vancouver Registry

In the Supreme Court of British Columbia

(BEFORE THE HONOURABLE MR. JUSTICE EDELMANN)

Vancouver, B.C.

September 9, 2022

REX

v.

PATRICK HENRY FOX

PROCEEDINGS IN CHAMBERS
(Summary Conviction Appeal)

224869.Sep 09 22.Chambers.SCA

J.C. WordAssist Ltd. (Port Coquitlam)

202-2608 Shaughnessy St., Port Coquitlam, B.C. V3C 3G6

Phone 778-285-3425

30630-1

Vancouver Registry

244069-5

Vancouver Registry

In the Supreme Court of British Columbia

(BEFORE THE HONOURABLE MR. JUSTICE EDELMANN)

Vancouver, B.C.

September 9, 2022

REX

v.

PATRICK HENRY FOX

PROCEEDINGS IN CHAMBERS
(Summary Conviction Appeal)

Counsel for the Crown (Respondent), appearing by videoconference: Jennifer L. Homeland

Appearing on his own behalf (Appellant): Patrick Fox

224869.Sep 09 22.Chambers.SCA

J.C. WordAssist Ltd. (Port Coquitlam)

202-2608 Shaughnessy St., Port Coquitlam, B.C. V3C 3G6

Phone 778-285-3425

INDEX

SUBMISSIONS ON HIS OWN BEHALF BY THE APPELLANT
SUBMISSIONS FOR THE CROWN/RESPONDENT BY CNSL J. HORNELAND

EXHIBITS

Nil

RULINGS

Judgment reserved

Vancouver, B.C.

September 9, 2022

(VIDEOCONFERENCE COMMENCES)

(COUNSEL J. HORNELAND IN REMOTE LOCATION)

Clerk:

Calling the matter of His Majesty the King against Patrick Henry Fox, Justice.

Judge:

Thank you.

Horneland:

Good morning, Justice. I can introduce myself now if you can hear me okay?

Judge:

Yes, please, go ahead.

Horneland:

Thank you. My name is Horneland, first initial J. My last name is spelled H-o-r-n-e-l-a-n-d. I appear for the Crown respondent on this appeal.

Judge:

All right. Thank you. Mr. Fox, if I could just have you introduce yourself for the record --

Fox:

Yes, thank you.

Judge:

-- and just spell your last name if you --

Fox:

Patrick Henry Fox, the last name is spelled F-o-x and I'm self-represented.

Judge:

Thank you. So I've just been assigned to this matter and I've been given a set of materials. I just want to make sure that everybody has the same materials.

So I've got one, two, three, four days of proceedings at trial, I've got transcripts, so four -- four books of transcripts with -- of the proceedings at trial.

There is the notice of hearing dated -- or it's filed on July 2nd, 2020, which is three pages handwritten.

I also have handwritten materials filed on September 3rd, 2021, which appears to be two, three -- five pages.

And then I have two -- two respondent's books of argument and materials, although one of them says updated and corrected and is filed October -- August 24th, 2022.

I gather that's the one that I should be relying upon Ms. Horneland?

Horneland:

Yes. Unfortunately, it sounds as though you don't have the materials that are most recent in terms of the transcripts. I don't believe -- if you have four separate books of transcripts, my suspicion is you don't have the complete transcripts, so maybe we can start there, Justice.

We recently filed and provided to Mr. Fox in custody two volumes, which are a consolidated book of transcripts. There -- this was a 10 - day there were 10 days of proceedings, and they are --

Judge:

All right.

Horneland:

-- white Cerlox - bound books and there is Volume 1 -- 1 and 2, and they were likely filed I think around August the 24th, so fairly recently.

Those are the transcripts that my most recently filed argument from August 24 reference, so I -- I -- I would hope that they were in the court file and -- but just to answer your last question, yes, the argument and the book of authorities that I would be referring to today are -- are those that were filed on August the 24th, and as I said Mr. Fox was provided with the copies of those in the institution, so he should have those today.

Judge:

All right. What -- what I --

Horneland:

And the updated and corrected, that is -- yes.

Judge:

All right. Well, what I am going to propose -- I see Madam Clerk is -- is trying to locate those transcripts. What I am going to propose is we stand down for a few minutes to see if those transcripts can be found, unless there's any -- sorry, I see that you wanted to say something, Mr. Fox?

Fox:

Right, right. Well, I was going to say, and I brought this up at the -- the previous appearance, I think it was on August 8th, that because I'm still in custody in B. C. Corrections I still don't have access to any legal research source material to prepare my argument and submissions for this appeal, and this has been a -- a circumstance that has been ongoing since the appeal began back in 20 -- I think it was 2020.

So I had informed the court and the Crown at that point that I still don't believe that I am going to be able to be ready today either, because I'm still in custody there and don't have access to that material.

This appeal had been repeatedly adjourned over the past couple of years due to me being in custody and not having access to the required legal research source material to prepare and argue the appeal. At this point, I was still in custody, and so, still not able to adequately prepare any arguments. Here, I am yet again, requesting another adjournment for that same reason.

This is a perfect example of what is considered justice in Canada: Claim the defendant as the right to appeal; then lock him up in a facility where there is no access to legal research material; then deny him a lawyer or any legal assistant to aide him in doing research; then force him to proceed with the appeal hearing against the prosecutor who has access to every case ever published and can even rely on cases which have been overruled or are not analogous because there is no way for the defendant to know the status of the cases the prosecutor is relying on. Ah, Canadian justice!

Based on that, I would first seek an adjournment. If an adjournment can't be granted again then we would have to proceed, but as I -- said I -- I can't possibly be ready at this point.

I can't believe Edelmann actually asked what legal research material I would need access to. Case law, man! How the hell is a person supposed to make any arguments on their appeal without being able to rely on case law to support their arguments?

In this block, Edelmann appears to be surprised that inmates in BC Corrections facilities don't have access to legal research source material. His surprise is nonsense, though. It's just an act. There's plenty of well established case law referencing this fact (for example, R. v. Parchment, 2011 BCCA 174). The judges and prosecutors always do this, whenever you bring up some impediment that BC Corrections is imposing - they act shocked, like they've never heard it before. But there is no way they can be unaware of the fact that there is no access to legal research material at NFPC.

Judge:

Sorry, when you say you don't have access to legal research material what -- what material?

Fox:

I require access to case law, because some of the issues that I'm raising in the appeal deal with how the Immigration laws are supposed to be imposed at a port of entry, and once that is proven through the case law that would show that the CBSA officer that testified was clearly lying in her testimony, and then for that reason the judge should not have accepted her testimony.

Judge:

And sorry, in terms of access to legal materials is -- is there not -- is there not some access?

Fox:

There is at -- at North Fraser -- it's slightly different at North Fraser and at Fraser, but where I am right now, in North Fraser, there is no access to searchable case law, meaning on the computer. They do have books of case law, but only up to 2011, and there is no way to search them, so it's -- it's unrealistic to say that a person could find what they're looking for in there, because there is literally volumes and volumes of old cases up to 2011 there.

So I would say essentially I have no access to searchable case law at either North Fraser or at Fraser.

Judge:

So the computer -- just to be clear, the computers at North Fraser don't have access to CanLII?

Fox:

They're -- oh, they definitely do not have access to CanLII. This is something I proposed to them before. They refuse, because they don't want inmates having any access to the Internet, but I pointed out they could provide access through a proxy server, so that we would only be able to access the CanLII website and nothing else, but they refuse to do that.

And the single computer that they do have in the law library has case digests, but only the digest, so it's just a one-paragraph brief summary of each of the cases.

Judge:

All right. Ms. Horneland, have you -- are you -- you familiar with this --

Horneland:

Yes. Sorry to interrupt, Justice. I have heard this from Mr. Fox's justification and reason for asking for an adjournment on five previous occasions he's been before this court. We're on a sixth hearing date.

He's also made this argument in respect of his need to adjourn -- or need to have counsel appointed rather, in two separate applications before this court for appointment of counsel, citing need to access legal research and resources and -- and relying on that to ask the court to appoint counsel for him.

So the issue has been thoroughly canvassed over the approximate two years that this matter has been outstanding and his applications to have counsel appointed were dismissed, the court finding on each occasion that he was equipped and adequately in a position to make his own arguments in respect of the grounds that he is alleging.

Horneland:

And I have to oppose his application to adjourn today, because we have as I said canvassed this issue before the court and the Crown is of the view that, based on the grounds of appeal that Mr. Fox wishes to proceed on, we have all of the materials required -- he's had them in hand for over a year essentially. Nothing has changed. And Your Honour, it just seems to be a constant delay -- or sorry, Justice, a delay tactic on the part of Mr. Fox.

I can also advise that we have in the past been happy to provide Mr. Fox with authorities and have done so that -- when he has requested them and so, if he had access to digests in which to have the full case decision we'd be more than happy to provide them to him, but he has not done so and he does write to us, so we are in communication with him, but we haven't received such requests.

So, Justice, I -- I can say I am opposed to this adjournment. We're on our sixth hearing date, and I do feel that Mr. Fox has had the materials required and more than adequate time to prepare for this hearing date.

We had a prehearing conference on August the 10th, specifically to ensure that Mr. Fox would be ready to proceed today and -- but here we are. He's asking for an adjournment on the date of the hearing, and I'm troubled by the continued lack -- waste of judicial resources because the -- the matter continues to proceed in this fashion.

So subject to any questions Justice may have, those are my submissions.

Judge:

All right, but just to -- just to be clear, Ms. Horneland, your -- your understanding of the situation at North Fraser is that there's access to cases from -- on -- on paper from pre-2011 -- the description given -- you -- you have no information contrary to the description given by Mr. Fox, as to what is available to him at North Fraser?

Horneland:

No, I don't -- I don't, Your Honour -- Justice. I can't refute that. I think more my point is that the matter has been outstanding for so long and based on a very dated notice of appeal that Mr. Fox has had ample time, if he felt that full case law in a digest form was required, he -- he could have requested it.

He also -- the view of this court of two previous justices was that he had [indiscernible] and could make the argument on the grounds that he was to proceed on as it stood at that time, and so really I think that what the court was -- was saying is Mr. Fox's view that immigration law is relevant to his appeal is not shared by the court and is not shared by the Crown.

His grounds that he is attempting to advance are essentially that the court erred in its assessment of credibility of a witness and erred in its application of law for the test to be applied for breach of probation.

The immigration laws that he's referring - essentially, he's -- he wishes to argue that the main witness in this case failed to properly apply immigration laws, and therefore she should not have been found credible, but of course the judge made his decision based on what that immigration officer and key witness testified to, not based on what theoretically she ought to have done.

And I pause to note that these arguments that Mr. Fox is making were ones that he made very thoroughly over the course of the 10 days of proceedings at trial, so this matter has been going on now for four years, that he has been trying to advance this argument, which a Provincial Court judge and two justices of this court really found to have no merit, so...

Horneland is completely misrepresenting my arguments and my claims. She has been doing this all throughout this appeal, and even though I have consistently corrected her, she continues to do so as if I had never corrected her. You have no idea how frustrating it is to argue against people who know they're wrong, they know they're lying, and they keep making the same arguments and claims against even after you've clearly explained the facts and the arguments to them.

Imagine you're accused of breaking into a house, but it's your own house. But the police, judges, and prosecutors all ignore the fact that it's your house and they prosecute you. And throughout the trial and appeal process the prosecutor keeps insisting you entered the premises without consent, but you show them the deed, proving that you own the property, and they continue to ignore that fact. And the prosecutor keeps claiming you are on video entering the house, and you admitted to the police you entered the house. And you say "Yes, because it's my house. I live there." And when you say that they look at you blankly, then go right back to saying "Well, clearly you're guilty because you're on video and you admitted it." I'm not being sarcastic. That is exactly what all of this is like!

Take, for example, the prosecutors and judges keep insisting I'm not a US citizen. When I produce my US birth certificate, or I point out that the prosecutor (Mark Myhre) in the criminal harassment trial actually admitted my US birth certificate as an exhibit in order to show the jury that I can easily, at any moment, return to the US and harm my ex-wife, they just stare at me blankly, then go right back to insisting I'm not a US citizen.

Judge:

All right. Mr. Fox -- sorry, please go -- did --

Fox:

I -- I did want to say I strongly disagree with the Crown's claim that they had offered to provide case law or to assist me with that in this case.

I have other appeals currently before the Court of Appeal and I am working with David Layton. He's representing the Crown in that. In those cases the Crown has been assisting me with case law and such, but on this matter there has never been any offer that I'm aware of from the Crown to provide any assistance like that.

And also I wanted to say that I disagree with the Crown's current characterization or representation of the arguments that I'm raising. I don't agree with how she -- how she presented them just now.

Judge:

All right. So what -- what I'm going to -- to propose, given -- and -- and I have -- I have reviewed some -- some of the conference notes in -- leading up to today's hearing somewhat briefly.

What I'm going to propose is given the -- that this is a rather dated matter that we will -- we'll proceed with the appeal. You can make your -- the argument that you're seeking to make.

To the extent that you feel there is an unfairness that results from you being unable to present case law, you can explain that to me in the context of the argument that you are making, and it may be that at the end of the day I find that I'm -- it will -- it will be unfair for me to make a decision in this appeal without you having the opportunity to canvass the case law further, and I can give a direction to that effect in -- in the course of the hearing today, but we will go ahead with the -- go ahead with the hearing, given how dated the matter is and -- and what's led to us being here today, assuming, Madam Clerk, have we been able to find the transcripts?

Clerk:

Yes. We don't need to stand down. I have asked them to deliver them.

Judge:

They're going to be delivering -- they're going to be delivered.

Clerk:

Yes.

Judge:

All right. So we've found the transcripts, and you have a copy of those transcripts, Mr. Fox?

Fox:

Yes.

Judge:

All right. In which case what -- what I'm going to do is ask you if you can go ahead and -- and give me the substantive argument on the appeal and then if there are parts that you say are missing because you don't have the case law, then you can explain that to me in -- in terms of what it is that you say creates an unfairness in the circumstances, all right?

How the fuck can I give him the substantive argument when I haven't even been given the opportunity to be able to research the legal issues?!?!

I know that if a law enforcement officer takes the witness stand and in her testimony she makes phenomenally outrageous claims, like that the burden is no CBSA to prove a person at a port of entry is not a Canadian citizen and if CBSA is unable to prove that they have to let the person into Canada, then she must be considered uncredible. But without case law to support that the court can simply ignore it (but then, my experience has been that even with case law, the BC courts have ignored my arguments). I know that when CBSA encounters a person at a port of entry, who is inadmissible they are required to not allow that person to leave the port of entry by entering Canada, but without case law (or other legal authorities) to support that the judge will just disagree with me and ignore it (that is what Judge David St. Pierre did at the trial).

Fox:

Okay.

Judge:

I -- I can tell you that I am somewhat familiar with immigration law and -- and the law around the border, in terms of the -- the context is quite familiar to me from my practice before being appointed, if that's of assistance to you.

Fox:

Okay.

Judge:

All right. So please --

Horneland:

Justice --

Judge:

Ms. -- Ms. Horneland?

Horneland:

Yes, thank you.

Before we begin I -- I noted that there are -- Justice, you -- you have the first notice of appeal that was filed on July 2nd, 2020. We should be proceeding on an amended notice of appeal that was filed November 17, 2020.

That was filed by counsel who was assisting Mr. Fox, and it is the most recently filed notice of appeal, so that should be the one that we're proceeding on. I did --

Judge:

All right.

Horneland:

-- provide it, but the court didn't have it at our last appearance, they had misplaced it, so I provided a copy at the last day before hearing, so --

Judge:

Sorry, is that in your -- is that in your book or is it --

Horneland:

Yes.

Judge:

No.

Horneland:

No, Your -- no, Justice, it isn't, but we did recently provide one to Mr. Fox, as well, and we couriered our books to him and the transcripts, so I wonder if he might have a copy of it with him or perhaps Madam Registrar can look in the court file, as I said.

Clerk:

I'll --

Horneland:

Alternatively, my -- my -- I was going to say, Justice, alternatively my paralegal from my office, who is assigned to this matter, I believe is in the body of the court and she can certainly obtain a copy of that amended notice, if need be, and provide it to the court.

Clerk:

I only have the June 2020 --

Judge:

Madam Clerk appears to only have the June 20 -- sorry, the July 2nd, 2020?

Clerk:

I can show you this --

Judge:

Or, sorry, the -- I have a July 2nd, 2020, and then argument.

Horneland:

Well, Justice, I propose that we proceed as follows. In my argument, at page 7, I have excerpted the grounds as they were written essentially in that amended notice dated November 17, 2020, and in the interim if -- if we -- we can proceed with Mr. Fox's submissions and I can impose on -- on Ms. Carmen [phonetic] my --

Judge:

Oh, yes, I have this one.

Horneland:

Thank you.

Judge:

One moment. I think that we found the November 17th amended notice of application.

All right. So do you -- do you have a copy of this Mr. Fox?

Fox:

I do have a copy of that, but I did want to say with respect to the amended notices of appeal that Ms. Brown had filed in the process of the 684 application, she had changed or rephrased some of the issues that I was seeking to raise and then she had added a few herself.

The ones that she had added I have no intention of proceeding with, because those are matters of law that are far outside the scope of my knowledge or capabilities

The matters in question are related to subjective mens rea which, being that I had no access to legal research material I had no knowledge of. That particular ground was raised by the lawyer who was appointed to assist me on the section 684 application, Marian Brown, and of course she provided no information to me about what subjective mens rea is or how it applied to my case.

In the process of listening to Edelmann and Horneland discussing the issue of subjective mens rea I finally began to understand what it is and how it applied to my case. But by this point it was too late for me to do anything about it.

The issue of subjective mens rea is a perfect example of: 1) proof that I was not competent to argue the appeal on my own (because there were clearly issues of law which I had no knowledge of); and 2) that the judges who had previously denied the 684 applications were full of shit.

on, and I'm a little bit concerned with the wording or with the way that she had rephrased the issues that I was seeking to raise.

And sorry, this isn't fresh in my memory because it's been some time now since I have looked at them, so I would need to refresh myself on them, but I -- I did want to raise that issue, that I have a bit of concern that Ms. Brown had changed the issues that I had wanted to raise a little bit.

And I don't have a copy of the original notice of appeal that I had filed. That wasn't provided to me when the Crown provided me some stuff recently, and I notice that you had also mentioned, My Lord, that there were a few handwritten documents that you have in the court file.

Judge:

Yes.

Fox:

I -- I don't have those either. Unfortunately --

Judge:

The September 3rd, 2021?

Fox:

No. I don't have -- a lot of the documents and the material that I had relating to this appeal and the original offence or the original trial matter have been lost, because each time I get released from custody and then rearrested I lose all of the material that I had. So I really just have what the Crown had provided me a couple of months ago.

Judge:

All right. And so in terms of the material -- I mean this is material from you.

Fox:

Right.

Judge:

Do you want me to consider this -- the -- this handwritten material or should I not be considering it?

Fox:

I -- I don't even know what it is.

Judge:

All right. Well, what I -- what I am going to propose is I'm going to hand this to -- I believe there's a copy -- is there a copy on file?

Clerk:

I did -- I haven't seen this one, but I'll keep looking, Justice.

Judge:

All right. That's fine. So why -- why don't -- because it doesn't look like the original, so that's the -- that's the handwritten document that I have.

Clerk:

Sorry, Justice, unfortunately my -- I think the registry misunderstood me. They didn't deliver the transcript and I'm still -- they are still searching right now, so --

Judge:

All right. Thank you.

Fox:

Okay. So it looks like this is just a letter to Ms. Horneland that I had sent some time ago. I can't imagine that it would have any real relevance or significance in these proceedings.

Judge:

All right. So that's not something that you'd like me to consider -- I mean they're -- they're written submissions. I -- I -- you either -- it's up to you as to whether those are submissions you'd like me to consider or not.

Fox:

I -- I don't really have an opinion either way on it.

Judge:

Well, I -- I -- if you want me to consider them, I will read them and consider them; if you do not want me to consider them, I won't.

Fox:

All right. May I have -- may I have a moment, please, to just read it --

Judge:

Please.

Fox:

-- in its entirety?

Judge:

Please go ahead. I don't -- and just while we're -- while -- while Mr. Fox is looking at that, Ms. Horneland, is your understanding of these two -- I'm just looking at the two notices. It appears to me that the substance of the July 2nd notice has simply been copied almost -- essentially verbatim into the November 17th notice.

Is that your understanding of these two notices?

Horneland:

Yes.

Judge:

And then there's additional --

Horneland:

Yes.

Judge:

-- with -- with additional grounds.

Horneland:

Yes, Justice, that is my --

Judge:

All right.

Horneland:

-- understanding as well.

Judge:

All right. And your understanding is there is nothing in the June 26th notice that has been removed?

Horneland:

No, Justice, nothing was removed, simply a few grounds were added and --

Judge:

Okay.

Horneland:

-- I will note that when we were here before the court August 10th, before Justice Winteringham, we confirmed that Mr. Fox would be proceeding on the amended notice filed November 21 -- sorry, November 17, 2021.

Judge:

It's 2020, I believe.

Horneland:

And -- 2020, thank you -- and that the previously filed memorandum of argument that were prepared by his counsel, who had been appointed to assist him on his s. 60 -- 80 -- 684 application, were also provided to him. So he has her argument, but also her summary of his argument that he wished to make without her, the s. 684 application, so she's provided those materials to him on roughly around August 24, so he should have those in hand as well.

Judge:

All right. Mr. -- Mr. Fox?

Fox:

With regard to what the Crown had just stated, I do want to point out that at the previous appearance in this matter, when I said that we could proceed on the amended notice of appeal, at that point the Crown hadn't yet provided me the amended notice of appeal and I hadn't seen it in who knows how long. So it was provided to me, as the Crown had said, I think around August 24th.

And with respect to this letter there is some information in here I believe that might be beneficial to the court regarding the circumstances and such. So, yes, I would like the court to consider this.

Judge:

All right, in which case I will -- perhaps, Madam Clerk, if you could just hand that back to me?

Clerk:

Yes.

Judge:

All right. So I -- I will consider those written -- these written submissions then. So you have these -- this September 3rd, 2021, letter, Ms. Horneland?

Horneland:

I do, thank you, Justice.

Judge:

Thank you. All right. Okay. So just so that you understand, Mr. Fox, I've -- I've reviewed the two notices. The -- all of the grounds in the July 2nd notice --

Fox:

July 2nd of --

Judge:

July 2nd, 2020 -- so there's two notices, one is July 2nd of 2020 and then an amended notice November 17th of 2020.

Fox:

Okay.

Judge:

And I have reviewed the grounds in the July 2nd note -- the original notice.

Fox:

Okay.

Judge:

Those have all been copied into the -- or substantively copied -- there has been some minor corrections where --

Fox:

Okay.

Judge:

-- referring to you in the third person instead of the first person and -- and things like that, but otherwise they are verbatim --

Fox:

Okay.

Judge:

-- they're -- they're verbatim what was in your original notice. The only difference appears to be that there are additional grounds.

Fox:

Right.

Judge:

And -- and you're -- you've -- you've given me your position with respect to those additional grounds.

Fox:

Right.

Judge:

Whether you want me to consider the arguments that were prepared by your counsel on those grounds, I'll -- I'll leave that up to you.

Ms. Horneland has said she sent you those. I'm also happy to consider just the written version. You don't need to make any further argument. I can -- I can consider the written materials that were -- that were provided by your counsel -- by your former counsel and leave the argument on those points to that, and I will consider those arguments if you want -- if you'd like me to consider those.

Fox:

All right.

Judge:

So you don't need to decide that right now. You -- we will have a break and you can review those materials and decide if you want me to consider those written arguments.

What I would -- what I'd recommend at this point is if -- if you want to begin with the arguments that you want to make and take me through those, and then we can -- and then you can decide whether you wan t me to consider the written materials from your former counsel on these other points.

Fox:

Okay.

Judge:

All right? Does that make -- so we will proceed on the amended notice --

Fox:

Sure, yeah.

Judge:

-- but that -- any of the arguments that you want to make from the original notice are -- are essentially there, all right?

Fox:

Okay.

Clerk:

Justice, here are the transcripts.

Judge:

Oh, and we have the transcripts. Perfect.

All right. So, please go ahead, Mr. Fox.

SUBMISSIONS ON HIS OWN BEHALF BY THE APPELLANT:

Fox:

I should start by saying that I am literally going off the top of my head here, because as I have mentioned each time I'm re- arrested I lose all of my material, so all of the prep that I had done previously, all of my notes, etc., are all lost.

I have nothing in writing to go by, so I am going to try to go by -- by memory here.

So I guess the most logical way for me to approach this would be to start with Issue 3 in the Crown's -- sorry, I just want to see how they're calling their book -- the respondent's book of arguments and material, in their submissions.

Judge:

Yes.

Fox:

At page 11, they address Issue 3.

Judge:

Yes.

Fox:

That relates to the grounds that I was raising about the court misunderstanding or misconstruing how the immigration laws were supposed to have been applied at a port of entry.

Judge:

Yes.

Fox:

The -- the issue that I was raising there or that I was trying to make was that when a person or -- the law with respect to when a person enters an area designated as a port of entry, CBSA is required to presume that the person is a foreign national seeking entry to Canada, regardless of whether they enter the port of entry from within Canada or from the United States border, but when Officer Polisak testified she was -- she was treating it as though a port of entry is no different than any other location within Canada.

And so the fact that I entered the port of entry from within Canada meant that I wasn 't subject to inspection, and that the burden was on CBSA to determine or to prove that I wasn't entitled to enter Canada, whereas in reality when a person is within a port of entry the burden is on that person to prove that they are entitled or have a right to enter Canada, even though the port of entry may be located within the Canadian borders or on Canadian soil.

And I believe that Officer Polisak's statements in her testimony in that respect were so clear or -- so clearly erroneous and outrageous that the -- the court should have known that what she was say ing could not have been true.

At one point I had asked her -- or I had said to her that -- what -- if what she is saying is correct, then if any foreign national shows up at a port of entry, claims to be a Canadian citizen and has no documentation of their citizenship with them, CBSA would have to allow that person to enter Canada, unless they could prove that the person wasn't a Canadian citizen and Officer Polisak responded yes -- if I can just go grab some water?

Now, if the court had accepted my position on how the immigration laws are supposed to be im -- supposed to be imposed and enforced at a port of entry, then the court would have had to accept that Officer Polisak's testimony was false and being a Border Services officer, she should have known that what she was stating in her testimony could not possibly have been correct, which means that she would have knowingly been making false statements in her testimony.

That then gets or relates to what I believe was Issue 2 -- yes -- which in the Crown's book is addressed starting at page 10, that the judge erred by accepting Officer Polisak's testimony.

So, if the judge then would have accepted that Officer Polisak's testimony was false and that she should not have been considered a credible witness, then that should have raised some questions about the reliability of her testimony, where she stated that she did not tell me that I was inadmissible and she did not tell me that I was not permitted to leave the port of entry and return to Canada at that point.

My testimony at the trial, after Officer Polisak testified, was that Officer Polisak did tell me that -- based on all of the facts in the evidence and my not being a Canadian citizen and having been convicted of an indictable offence, that I was not admissible and therefore I was not entitled -- or not permitted to leave the port of entry and return to Canada, that the only option I had at that point was then to return to the United States and --

I had explained to Edelmann that what had happened was I was denied admission to Canada at the port of entry. Edelmann then claims there is no such thing as a "denial of admission". He says, at the port of entry you can either be granted admission; granted admission subject to further examination; or "allowed to leave, to return to their country". As I've said so many times when discussing these transcripts: What the fuck?!?!

What Edelmann is describing as being "allowed to leave and return to their country" is also known as ... as what? As being denied admition, you fucking asshole! If you're at a port of entry and CBSA says "Well, we're not going to let you enter Canada, but you're welcome to return to your contry of origin", how the fuck is that not a denial of admission? You remember that scene from Zoolander where Mugatu (Will Ferrell) says "I feel like I'm taking crazy pills"? Well, that's what I feel like most of the time when dealing with these BC prosecutors and judges.

The claims that another option at a port of entry, if you're not admitted or allowed to leave is that you're removed from Canada. But that is false, and being an immigration lawyer he must know that. You cannot be "removed" when you're at a port of entry because, at that point, when you're physically present at the port of entry, you're not considered to be in Canada. You can't be removed from a Country you are not in. Nowever, if CBSA denies you admission and you refuse to accept that denial of admission then they can take you into custody and detain at a facility outside the port of entry - in which case you would then be in Canada and can be removed. Is this guy a lying bastard or an idiot? Who knows?

Judge:

So, sorry, are you -- are you suggesting that -- just so that I understand what you're what it is that you're suggesting happened, you're -- you're -- your position is that you were removed from Canada or --

Fox:

Tech --

Judge:

-- that you were allowed to leave?

Fox:

Well, technically I wouldn't have been removed, because since I was at a port of entry I would have been denied readmission or denied admission from the port of entry back into Canada.

Judge:

Well, there's -- there's not a denial of admission -- in terms of what happens at a port of entry, you're either -- when -- when somebody applies to enter Canada --

Fox:

Yes.

Judge:

-- then either the person is allowed entry -- allowed entry, subject to further examination, in other words that there is a continuing examination, or they're allowed to leave in the -- in the sense that they're -- they're given permission -- they can withdraw their application to enter Canada and return to their country -- return or they're removed from Canada. So --

Fox:

Okay.

Judge:

So which -- which -- which is it that you -- what is it that you say happened at the port of entry?

Fox:

It wasn't phrased -- at least the way I remember it, it wasn't phrased as I was being removed, and so I guess the closest one would have been that I was allowed to leave.

Judge:

All right. And so what -- what is the relevance -- if you were allowed to leave I'm just trying to understand the relevance of that with respect to the --

Fox:

Because if -- if I was not permitted to go from the port of entry back into Canada, then that would mean that I wasn't leaving Canada voluntarily, which means that I didn't violate the probation condition, you see, because the condition was that I was not permitted to leave British Columbia without permission from the probation officer.

Judge:

Yes.

Fox:

However, the Crown had stated at the time of the sentencing in the index offence that if I'm removed or asked or told to leave by IRCC or CBSA, that he would not consider that a breach, because then I would not be leaving voluntarily and he wouldn't prosecute me for that.

Judge:

Right. So you're -- you're saying that you were -- you -- so you attended the port -- so I just want to be clear on what you --

Fox:

Yeah.

Judge:

-- I -- I'm not familiar with the facts. I just want to understand what the facts are here.

Fox:

Right.

Judge:

You attended the port -- what -- what -- you were in Canada --

Fox:

Yes.

Judge:

-- and attended the port of entry?

Fox:

Yes. I went to the port of entry specifically for the purpose of being removed.

Judge:

All right. So you went to the port of entry and were -- for the purpose of being removed --

Fox:

Yes, so that I could -- in that way I would be able to leave British Columbia, return to the United States, but in a way without violating the -- or breaching the probation condition.

Judge:

All right, but wasn't there a condition that said that you couldn't be within a hundred metres --

Fox:

Yes, there was, and --

Judge:

-- and so you -- you accepted that you were breach in that condition?

Fox:

Well, no, because the -- at the Douglas border crossing, where the CBSA office is, it's not within 100 metres of the -- of the border. It's I believe closer to probably 200 metres and so, when I entered the building there, I still wasn't within a hundred metres.

Judge:

All right. So you went to the -- to the -- you went to the office --

Fox:

Yes.

Judge:

-- with the intention of being removed.

Fox:

Yes.

Judge:

And then weren't removed?

Fox:

Well, that's where the discrepancy or the uncertainty comes in at the trial. Officer Polisak's testimony was that she didn't remove me or she didn't tell me that I wasn't -- I couldn't return to Canada and then my testimony was that she did tell me that I was inadmissible and could not return to Canada.

Judge:

But if -- sorry, I'm just trying to be clear on what -- so what you're saying is that what Officer Pollock [phonetic] did was to remove you or what Officer Pollock did was to allow you to proceed to the United States or allow you to return to the United States?

Fox:

Well, the way that she phrased it was that I was not permitted to Canada or I was inadmissible to Canada, and so I was not permitted to return to Canada was the way that she had phrased it. And so, I am not sure, would that then mean that she was saying that I was permitted to return to the United States or if she was removing me, I'm -- I' m not sure which one that would fall under then, because it was my understanding that from a port of entry you could be denied admission or granted admission at that point, and that being denied admission would be essentially similar to being removed, like based on the way that she phrased --

Judge:

Okay. And so you're -- you -- so you're saying that there -- because I just want to be clear at -- at law --

Fox:

Right.

Judge:

-- there was no deportation order issued.

Fox:

There was no order issued, no.

Judge:

There was no order issued to --

Fox:

Right.

Judge:

-- to remove you from Canada.

Fox:

Correct.

Judge:

All right. And so you're saying that you're -- your understanding at law -- I mean there was no -- they most certainly did not physically take you in to the United States. You were not accompanied into the United States, you were not -- you were not escorted to the United States.

Fox:

Correct.

Judge:

All right. And so which -- which are things that would happen in a removal in -- in the sense -- so -- so what you're saying is that at that point you walked out of -- you -- you walked out of the office and into the United States on your own?

Fox:

Yes, on my own, but after the Border Services officer had told me that I was inadmissible.

Judge:

Right, but where -- did -- did the Border -- did the -- did the officer verify that you did not come back into Canada?

Fox:

I have no idea. I didn't look back to see --

Judge:

But when you walked out of the office you were 200 metres in -- inside of Canada you said?

Fox:

Right, right.

Judge:

All right. So at that point, when you walked out of the office, you -- was there anything -- was there any thing stopping you from walking back in to Canada?

Fox:

There was another Border Services or CBSA officer positioned outside, like in a little booth or something and certainly she could have intercepted me, but I don't know if she was notified by Officer Polisak that I was told that I was inadmissible and once Officer Polisak told me that I was inadmissible, which is what I was seeking to accomplish by going there, I then exited the building.

And then I asked the officer outside how do I return to the United States from here, and then she pointed me toward a door that led to a sidewalk that goes past the Peace Arch monument and down to the Customers and Border Protection building on the U.S. side, and then I just walked along the sidewalk.

Judge:

All right. All right. And in -- in terms of -- of what took place afterwards, I guess the -- the -- how did you -- how did you end up back in Canada?

Fox:

So after I proceeded to the Customs and Border Protection and I presented myself to them there, and then they detained me because of a prior removal order from the U.S. to Canada -- oh, and I should say at this point that I have been in the past ordered removed from the U.S. to Canada, even though IRCC and CBSA documentation states that I was born in the United States and there's no documentation that they have that states that I'm a Canadian citizen, but I know that that -- it creates a lot of confusion when I say that I was deported from the U.S. to Canada.

People automatically assume that means I'm a Canadian citizen, but IRCC and CBSA records do not state that at all.

So I was detained on the U.S. side. I was held in Tacoma by Homeland Security for I think it was about two-and-a-half weeks, by which time a warrant had been issued here in Canada for failing to report and for leaving B. C. without permission. So then I was brought back based on that warrant and then handed over to CBSA, who handed me over to the RCMP.

Judge:

Sorry, just to be clear, you -- you are a U.S. citizen?

Fox:

I am, yes, by -- by birth or by virtue of having been born in the U.S., yes.

Judge:

So I just want to be clear you were removed from the U.S. or you were extradited from the U.S.?

Fox:

I was removed.

Judge:

As a U.S. -- a U.S. citizen was removed from the U.S. --

Fox:

Yes.

Judge:

-- or -- or the U.S. does not -- perhaps let me frame it this way --

Fox:

They --

Judge:

-- does the U.S. accept that you are a U.S. citizen?

Fox:

Well, Homeland Security's records do clearly show that I was born in Florida, but they were insisting at the time that they believe that I was an illegal alien from Canada, and that ultimately resulted in them prosecuting me for an allegation of perjury and falsely claiming U.S. citizenship.

I was convicted of that and then that conviction became the basis for which they ordered me removed.

In this block, Edelmann appears to have already convinced himself I am not a US citizen and I am a Canadian citizen, and he is trying to get me to agree with him.

This is an example of how the judges don't care about physical evidence or reality. To them, a prior "finding" of another court is reality, regardless of the fact that it defies the laws of physics.

And notice, at that end of this block Edelmann says I was deported back to Canada. "Back to" means that I was here previously or originally. In other words, as I said, Edelmann already made up his mind on this issue.

And Edelmann keeps going on about there being a "finding". A finding is not reality, it's nothing. It just means that some prior entity decided to say something is so. It doesn't then become reality just because some other judge says it is so. Consider, I admitted I republished the Desiree Capuano website in 2018, and the court made a "finding" that that is so. However, I was in custody for all of 2018 so it would have been a physical impossibility. But so what, some yahoo BC judge made a "finding" that I did so, therefore it is now reality in their delusional, twisted, demented minds. Fucking twits!

Judge:

All right. So the immigration authorities in Canada consider you a Canadian citizen and the immigration authorities in the U.S. consider you a Canadian citizen, and neither of them consider you to be a U.S. citizen?

Fox:

No, no, that's not correct. The U.S. authorities -- some of their documentation they claim to believe that I'm a Canadian citizen, but they have my birth certificate and they have other documentation in my U.S. CIS file, that I have received through FOIA --

Judge:

Well, let me put it this way. At the time of the deportation, they did not consider you to be a U.S. citizen?

Fox:

At the time of the deportation, clearly they didn't believe -- or they didn't claim that I was a Canadian citizen. However, again though I point out that --

Judge:

Sorry, a U.S. citizen.

Fox:

-- or yes, a U.S. citizen.

Judge:

At the time of the deportation, the U.S. Immigration authorities found that you were not a U.S. citizen?

Fox:

That was their claim, yes.

Judge:

All right. Well, that was their finding, because they deported you.

Fox:

Well, yes, but as I say their own documentation shows that --

Judge:

Well, I -- sorry, I'm just -- I just want to be clear. The -- the finding of the U.S. Immigration authorities is that you are not a U.S. citizen and that -- at the time that you were deported back to Canada.

Fox:

At the time I was deported to Canada -- back in 2013, I would say that that would be accurate.

Judge:

Well, you're -- sorry, you say 2013, you --

Fox:

Well, that's -- that's when I was removed from the U.S. to Canada.

Judge:

Well, how did you get back to Canada to be arrest -- like with -- oh, this -- this took place in 2013, just --

Fox:

Well, yes, the order of removal in the U.S. was issued in -- I think it was 2011 -- 2010 or 2011 and then --

Judge:

No, sorry, I'm -- I'm asking about the -- the -- this trial took place in 2019. The underlying charges -- the underlying charges of breach --

Fox:

Right. In 2019, when I was brought --

Judge:

Sorry, the breach -- the breach is in March of 2019. You go into the United States in March of 2019.

Fox:

Right. At that time --

Judge:

How did you end up back in Canada?

Fox:

Homeland Security -- like I said, they were detaining me in Tacoma until a warrant was issued here, at which time they brought me back to Peace Arch and then handed me over to the Canadian Border --

Again with the "findings"!

Edelmann is trying to convince me that the US deported me to Canada because they made a so-called "finding" that I'm not a US citizen. But I tell him that my US CIS A-File contains my birth certificate and other documents proving that I am a US citizen, so there is absolutely no way that in 2019 they could have believed I was not a US citizen.

Then, Edelmann starts up with his silly nonsense that the US doesn't deport US citizens, and doesn't detain US citizens in immigration detention centers. I tell him, yes, they clearly do.

Again, Edelmann seems to have some kind of mental block that precludes him from being able to accept the reality that, in fact, sometimes law enforcement and justice system participants don't follow the rules and sometimes they grossly abuse their power.

Also, notice how Edelmann considers the supposed "finding" by the US authorities that I'm not a US citizen as an irrefutable law of nature; but my rebutal to it is merely my "view". What a fucking jackass.

And this kind of shit is exactly why I put myself through seven prosecutions and seven years in jail - to prove how flawed, arrogant, smug, self-righteous, misguided, corrupt, and downright evil the people of the BC justice system are.

And finally, notice how Edelmann started by asking whether the US authorities do not consider me a US citizen (though phrasing it as a question); then gradually getting to sternly stating it as an assertion. His whole point was not to understand the facts, but to tell me the facts as he wanted them to be.

Judge:

All right. So at that time the U.S. authorities made a finding that you were not a U.S. citizen --

Fox:

No.

Judge:

-- in 2019 --

Fox:

No, no. No, no. There was no finding made at that time. There was no investigation or anything, because there was the prior order of removal from 2010 or 2011.

Judge:

All right.

Fox:

And so they just detained me in Tacoma. Once the warrants -- or after the warrants were issued up here, they used that as the reason for bringing me back.

Judge:

So they relied on the previous finding that you were not a U.S. citizen?

Fox:

Yes.

Judge:

All right. And so as of 2019, you were still considered by the U.S. authorities not to be a U.S. citizen?

Fox:

I -- I don 't know that that's the case, though, because as I say my A file has my birth certificate and there's documents in there that show that they --

Judge:

Well --

Fox:

-- know that I'm a U.S. citizen.

Judge:

Canadian citizens are removed to Canada, U.S. citizens are extradited to Canada. They are two very different processes.

Fox:

Oh, I understand.

Judge:

So if -- if -- if you were not extradited to Canada, then the reasonable assumption is that at that time the U.S. authorities considered you not to be a U.S. citizen. Is that a fair understanding of the facts -- of the facts?

Fox:

I would say that that's a fair understanding of how it's supposed to be, but that's clearly -- I shouldn't say clearly, un -- unfortunately in these proceedings, the matters that I have had with CBSA and with Homeland Security over the past 13 or 14 years, how things are suposed to be and how they really are often have not been the same.

Judge:

Okay. So that's why I -- I've -- I -- just so that you -- my questions have been framed very clearly -- very -- very precisely --

Fox:

Yes.

Judge:

I'm not asking about now things are supposed to be. The U.S. Immigration authorities do not consider you to be a U.S. citizen. I understand your assertion that you -- you are of the view that they are wrong, but they -- they do not treat you as a U.S. citizen, and did not treat you as a U.S. citizen in March of 2019?

Fox:

I still don't -- I -- I have difficulty agreeing with that statement, because as I said they have the records, they know that I' m -- that I was born in Florida, like --

Judge:

No I understand you -- you are of the view that they are wrong. They put you at in Immigration detention --

Fox:

Right.

Judge:

-- centre. Citizens do not go into Immigration detention centres.

Fox:

Well, they do.

Judge:

I just say, like in the -- in the sense of Immigration authorities, or at least my understanding, I can say --

Fox:

Mm- hmm.

Judge:

-- for Canadian Immigration centres, that a Canadian citizen will not be detained in an Immigration centre unless the Immigration authorities are not satisfied the person is a Canadian citizen.

Fox:

Right.

Judge:

So at -- in March of 2019, the U.S. authorities did not consider you to be a U.S. citizen.

Fox:

Sorry, was that a question or --

Judge:

I'm -- I'm asking -- I -- I just want to be -- I'm just trying to clarify the situation.

Fox:

Okay.

Judge:

The U.S. Immigration authorities do not consider you to be a U.S. citizen.

Fox:

Okay. To be as frank and direct on -- on this then as possible, I believe that Homeland Security does know that I am a U.S. citizen and they -- why they would detain me in an Immigration facility and send me to Canada, I think, is probably related more to their refusal to admit that they did anything wrong in the first place, but there is no doubt in my mind that they know exactly who I am and where I was born. And CBSA and IRCC also -- their records also clearly state that I was born in the United States.

Judge:

All right.

Fox:

In fact, the -- my GCMS and FOSS [phonetic] reports or records were presented at the trial. I'm not sure if they were entered as exhibits or not in -- in this matter and it clearly states in those records country of birth was United States of America.

Edelmann says the fact that the Canadian authorities allowed me to be deported to Canada is a strong indication that they consider me to be a Canadian citizen. He completely ignores the fact that those same Canadian authorities have flat out, unequivocally declared I am not a Canadian citizen.

Again, the judges don't care about what is real, they only care about bits of information which will support what they want to believe. Even after CBSA claimed to have investigated and claimed they believe I am a Canadian citizen, IRCC updated my GCMS record stating I am not a Canadian citizen! But Edelmann steadfastly refuses to consider what IRCC is saying.

Edelmann also argues that a person may have derivative citizenship, for example if one of their parents was a Canadian citizen. However, if the person was born outside Canada, they would still have to apply for that from IRCC. They would not just automatically be considered a Canadian citizen. And I have never applied for, or requested any type of citizenship or immigration status in Canada. I would rather be a stateless person in any other country than to be a Canadian citizen.

Judge:

All right. And sorry, the GCMS and FOSS records -- sorry, in GCMS and FOSS are you -- do Canadian Immigration authorities consider you a Canadian citizen?

Fox:

Under citizenship -- the field for citizen -- citizenship it' s blank, but country of birth it says United States, and so if I was born in the United States then I can't be a Canadian citizen, unless I applied for it or request it, and I --

Judge:

Well, there are many -- there are many, many ways that one can get Canadian citizenship through --

Fox:

Right.

Judge:

-- parents, etc. There -- there -- one can have dual nationality.

My question is do Canadian Immigration authorities consider you to be a Canadian citizen and -- and there's a strong indication for me that they do, because you were removed from the United States and are here today, which suggests that Canadian Immigration authorities allowed you entry, presumably because they believe you're a citizen.

Fox:

Right. That would seem to be the case, but I have not been able to get a clear and direct response from them on whether they consider me a Canadian citizen or not.

In Officer Polisak's notes that she had made from our encounter in 2019, she states also in there that she was not able to determine that I am or am not a Canadian citizen, and I believe those were entered as an exhibit in the trial -- actually, well, that was part of the GCMS and so -- or GCMS report.

Judge:

All right. And are the trial exhibits --

Fox:

Oh, sorry, I just kind of -- I took for granted that they would be included in the appeal book, because I'm so used to dealing with the matters in the Court of Appeal, but it occurs to me -- I don't think in summary conviction appeals that there is an appeal book, right?

Judge:

Correct. I have transcripts. I do not have -- I do not have the exhibits from the trial, but -- so the G -- but the GCMS notes were exhibits in the trial, and you say that it was unclear whether you were a Canadian citizen or not in those documents?

Fox:

Well, it's -- it's not that it was unclear. Officer Polisak stated in there that she was not able to determine that I am or am not a Canadian citizen.

Judge:

All right. And those were put to her in her testimony?

Fox:

I believe so.

Judge:

All right. So -- so just so that I understand the argument, your -- your argument at trial was that you showed up at the border -- at the port of entry with the intention of getting deported.

Fox:

Yes.

Judge:

So that you could put yourself in a situation where you could avoid the order of Madam Justice Holmes?

All of these fuckwad judges always automatically assume the reason I was trying to leave Canada is so I could avoid having to comply with the conditions of the probation order. What the fuck is wrong with their heads?

I'm ordered to remain in a jurisdiction where I'm not legally authorized to work, so I won't be able to support myself; I can't receive any government assistance or benefits (again, not that I'd want it), so even though I can't work I also can't receive "social assistance" or health care. The probation order would, literally, force me to be homeless and destitute for three years, begging for spare change, sleeping under a bridge - or to break the law by working illegally. But if I work illegally, then I'm breaking the law, which means violating the probation order and they would come and arrest me again.

And, I have stated over and over, that the reason I was seeking to be able to leave Canada was so that I could work and support myself and continue to exist - not to avoid the probation order. But you see how all the judges completely ignore that completely reasonable, logical explanation and insist I was trying to avoid the probation order?

I -- I just -- I just want to be clear on what the intent --

Fox:

Right. The -- the --

Judge:

The intent was to go to the border to be able to get across the border or to have the Immigration authorities take you across the border, so that you were not in breach of your probation, but could still cross the border?

Fox:

So that I could return to the U.S. without breaching the conditionin the probation order, but it's important that the reason I was seeking to return to the U.S. wasn't so I could avoid complying with all of the other conditions; it was because I have no status in Canada, I have no social insurance number, and so I am not legally authorized to work, but the probation order that was imposed was for three years.

And so it put me in a situation where I have to remain in Canada, but I can't get any kind of government assistance -- not that I would want government assistance, but I can't get healthcare and I'm not legally authorized to work, and the day before I had gone to the border I had a hearing before Justice Holmes to try to have the condition removed, so that I could go back to the U.S. for those reasons and the -- she denied the request.

And so then that's why -- and I told Justice Holmes at the hearing that that would be my intention, even if the request is denied that my intention would be to turn myself into CBSA so that I could be removed.

Judge:

All right. So what -- I note the time, so it's -- it's about -- we will normally -- we normally take the morning break at this point.

Fox:

Right.

Judge:

So what I am going to suggest is that we will take the morning break.

What -- just so that you understand what I am going to be considering you -- and your -- your explanations have been helpful this morning, in -- in terms of giving me some context as to what the issues are and what you see the issues as, is -- if you can take me to the trans -- in -- in the transcripts to the parts of the evidence that you say I should be considering, in terms of the -- both your testimony about what happened at the border that day and the officer's testimony about what happened at the border that day, so that I have a clear understanding -- I expect that the GCMS notes will have been put to the officer in her testimony and -- and ultimately that will be the part that will -- the officer's notes are only as helpful as what happens in cross-examination or -- or in examination.

So what I'll ask you to do is if there are parts of the transcripts that you'd like me to consider -- ultimately it's not what was said this morning that I' m going to be considering, it' s not -- an appeal is not an opportunity for new evidence and I'm not going to assess your -- your credibility this morning as to whether or not I believe what you're telling me or -- or not. That's not the issue on an appeal.

The issue on the appeal is what was said at the trial and was the decision -- can -- should the decision of the judge, given what was before him, be upheld.

So I think I have a clear understanding of -- of what your argument is and I think what would be helpful for me is if you can -- you can take me to the actual evidence that was before Judge St. Pierre, so that I have an understanding of why you say his conclusion was unreasonable or -- I say unreasonable -- was -- was in error.

Fox:

Right.

Judge:

All right? So we will take the morning break and we'll come back at 11:30, and we can continue at that time. Thank you.

Fox:

Thank you.

(VIDEOCONFERENCE PAUSED)

(PROCEEDINGS ADJOURNED FOR MORNING RECESS)

(PROCEEDINGS RECONVENED)

(VIDEOCONFERENCE RECOMMENCES)

Clerk:

We are back on the record, Justice.

Judge:

Thank you. Go ahead when you're ready, Mr. Fox.

SUBMISSIONS ON HIS OWN BEHALF BY THE APPELLANT, CONTINUING:

Fox:

Okay.

First, I want to apologize profusely for not being better prepared for this, and I spent the time on the break trying to quickly scan through some of the testimony in the transcripts, so I can highlight the parts to draw your attention to, but I wasn't able to complete -- completely go through it and this -- this is work that I had done previously and I had all of my notes and again, unfortunately, those were lost when I was arrested again.

And since being back in custody and getting this material I haven't had the opportunity to fully go through it all again and recreate all of those notes, so I am amazingly unprepared, and again I apologize for that, but I did find some points in Officer Polisak's testimony that I would want to draw the court's attention to, but first I have to point out it's not -- it's not stated in the transcripts that we have before us here, but it was addressed in those proceedings in other pretrial conferences, the -- the Crown objected sternly or fervently to me making any references to or raising any issues regarding my citizenship.

And so when you look at my cross-examination of Officer Polisak, you will notice that direct questions about my citizenship never come up and I had to be very careful about how I worded any questions that might bring up any indication of my citizenship, of whether I'm a Canadian or a U.S. citizen, because the judge also made it very clear that he did not want that to become the focus of the -- of the trial.

So, having said that, at page 54 of Officer Polisak's testimony [indiscernible] --

Judge:

Sorry, which -- which is which date?

Fox:

Oh, that would be on the 4th, I believe, March 4th.

Judge:

March 4th?

Fox:

I believe so. Sorry, let me -- yes, March 4th --

Judge:

All right.

Fox:

-- which --

Judge:

So March 4th, and you said page 58?

Fox:

50 -- yes, 50 -- no, 54, sorry.

Judge:

54? Okay.

Fox:

Yes.

Judge:

All right. Yes, I'm at page 54 of March 8th.

Fox:

Okay. Now, starting -- starting at line 23 --

Judge:

Sorry, line 23?

Fox:

Yes.

Judge:

Yes.

Fox:

I had asked Officer Polisak about -- when she test -- testifying on direct, she had testified that -- she had made some comment about not seeing any evidence that I'm not a Canadian citizen, and I realize that's phrased as a double negative, but that's the way it was phrased in her testimony, and so I wanted to cross-examine her on this here, but unfortunately this, I guess, got a little too close to the question of my citizenship.

And so then there was some back and forth with the court and with Mr. Wolf, who was the Crown, but going all the way to page 56, line 17, it was very difficult for me to ask certain questions or pursue certain lines of questioning because of not -- not being allowed to raise issues of my citizenship -- sorry, I'll let you -- I'll let you [indiscernible] --

Judge:

No, please -- if there's portions of this you want to take -- I'm at page 56.

Fox:

Okay, yes -- oh, well, just up to line 17. After that it moves on I guess to other -- other matters, but I just wanted to point out that it was my opinion, and it still is my opinion, that the issue of my citizenship is a very critical and very relevant matter in this -- in this case, because that would affect how or what Officer Polisak was required to do or should have done at the port of entry.

And so it was very difficult to -- I believe it was very difficult for me to cross-examine her and to make full answer and defence without raising the issue of my citizenship, and I think some of that is -- becomes apparent from the cross-examination.

And then again, though, at page 58, there is some interaction between myself and the court, due to the questions that I was asking Officer Polisak, from lines 14 to 21, where the judge was again trying to steer me away from issues of my citizenship.

Oh, sorry --

Judge:

Please -- please go ahead. I've -- I've had a -- I mean I've had a look at this portion of the transcript.

So is -- is your -- is your suggestion -- your understanding of what -- of what the -- the testimony from the officer was that they -- they associated you with this -- with this Mr. Riess?

Fox:

Yes, yes, and it would be understandable that they would make that association initially, because admittedly back in the 1990s I did change my name to Richard Reese and I did obtain some identification documents as that person, and I do accept that some of the initial confusion might have been because of that with Homeland Security and with CBSA.

It was later determined, though, that I'm not that person and --

Judge:

And do we have evidence of that?

Fox:

Um...

Judge:

Like sorry, we -- when I say we, and just to be clear, was there evidence of that before Judge St. Pierre?

Fox:

Sorry, I'm trying to remember. I -- no, I don't believe so, and I'm trying to remember Officer Polisak's statements in her declaration are in the GCMS report. I don't believe that there was evidence presented at the trial of that.

Judge:

Are you -- are you looking for something in particular, Mr. Fox, or --

Fox:

Well, yes, but I -- it's -- it's my own fault that I'm not prepared and so I don't expect -- I don't expect leniency because of it. So I -- I'm not going to hold the court and the Crown up with -- with when I spend time looking for stuff in here, but there was some other stuff at pages 64 and 65, which deal with the review of the FOSS record and the GCMS records and --

Judge:

Yes.

Fox:

-- where it states in those records Country of Birth as United States of America, and I questioned Officer Polisak on that.

Judge:

All right. And so she says she didn't see --

Fox:

Right, she --

Judge:

She says she didn't see it because it didn't come up on that day or -- or she didn't see it on that day.

Fox:

Right, and then -- but if you continue on to page 66, I believe it is, I point out to her that it seems that the record was actually created in the GCMS in January of 2019, which was before she had encountered me, and so I had trouble believing that it wasn't there at the time when she was -- when she encountered me at the Douglas border crossing.

Judge:

Yes. And -- and are you saying that Judge St. Pierre erred in -- in not -- in not considering that or not giving it more weight, is that --

Fox:

Well, I mean that was just one of the points that I had found, that it seemed that she wasn't be ing completely forthright or honest in her testimony. There were a few others as well. I just don't have them off the top of my head.

Judge:

Okay. And then ultimately just -- just so that I -- I understand your -- your ultimate -- that Judge St. Pierre's finding that the officer was credible, if -- of -- if Judge St. Pierre had found the officer not to be credible, then what -- what would he have concluded -- he would have concluded that you were ordered to leave Canada?

Fox:

Well, yes. I'm not sure -- I -- I wouldn't have phrased it in that way. I would have phrased it as he should have concluded that my -- my testimony that she had told me that I'm inadmissible was the more reliable version of events that occurred on that day.

And having been told that I am not admissible, it would have been illegal -- illegal for me to attempt to return to Canada from the port of entry, but the other thing that I had mentioned earlier about her testimony, where she testified that if a person -- any person shows up at a port of entry and they claim that they're a Canadian citizen, but have no documentation or identification on them, then she would have to allow them entry.

Judge:

But I -- I just want to -- I just want to understand your -- your argument, just so that I -- I understand where it is you're going with this.

Fox:

Right, right.

Judge:

So assuming that you understood that you could not come into Canada --

Fox:

Right.

Judge:

-- and that you -- you understood that you had an obligation to go into the United States, that's -- that's ultimately where you're coming -- where -- where you're -- what you're trying to get to is that --

Fox:

Yes.

Judge:

-- you had an obligation to go into the United States --

Fox:

Yes.

Judge:

-- right? In other words, you were -- you were compelled by law to go to the United States?

Fox:

Yes, that is exactly the argument that I have been making.

Judge:

All right. And if there was not an order in place then if -- if your understanding that you were compelled by law to go to the United States was in error, now you're suggesting that that would affect the mens rea with res -- your -- your -- that you were not intentionally breaching the order?

Fox:

Correct.

Judge:

All right. Now, in -- in law there is a difference between a mistake of law and a mistake of fact, in other words if somebody mis -- has a mistake of fact then, you know, if -- if I believe certain facts to be -- even -- even though I'm in -- in error, I think somebody is threatening -- I -- I legitimately think somebody is threatening my family and I speed home or something to that effect, even though there is not somebody threatening my family, that might be an excuse because I -- I had a mistake as to what the facts were.

Fox:

Right, right.

Judge:

The defence that's available is very different than a defence of mistake of law. In other words, one is presumed to know the law and so I'm just -- I -- I'm -- I just want to be clear that what you're suggesting here is that you were mistaken as to the law in -- in the sense that you had a legal obligation to go to the United States?

Fox:

Yes, that -- that is correct.

Judge:

That's -- because that's the part that I'm trying to get -- I'm trying to understand one -- it -- it does not appear to me or -- and perhaps you can take me to the materials, as to where there was a legal obligation for you to go to the United States on that day --

Fox:

Right.

Judge:

-- or are you suggesting that you had a mistake in understanding of the law that led you to believe that you had to go to the United States after the interaction that you had with the officer?

Fox:

I definitely, without a doubt, believed that I had an obligation to go to the United States after my interaction with the officer. Now, if that understanding was incorrect -- I don't believe it was, but if it was, then that -- that's another issue obviously, but it was certainly my understanding at that time, after dealing with Officer Polisak, that it was illegal for me to return to Canada and that I must at that point re -- yes, return to the United States.

Judge:

All right, but you were not ordered to do so.

Fox:

I was not explicitly ordered to leave Canada, but as I have -- as I've -- oh, I was going to say as I brought up in my arguments, but we don't have those here -- as I brought up in my arguments previously, I think I -- I believe I brought it up at the 684 hearings, I -- the reason I believe that I wasn't explicitly ordered to leave Canada is because, since I was at a port of entry I was not technically within Canada -- sorry, air quotes don't show up on transcripts -- because I was at a port of entry I was not technically considered to be within Canada at that point, and so that's why I believed it wouldn't have made sense for Officer Polisak to tell me that I have to leave Canada, because I technically wasn't in Canada.

Judge:

Okay. And that's based on your understanding of the law at the port of entry.

Fox:

Correct.

Judge:

All right.

Fox:

Like --

Judge:

And if that understanding is in error -- I mean that's the -- that's my -- if your understanding of the law was in error, where does that leave you with respect to Judge St. Pierre's decision?

Fox:

Yes.

Judge:

Because the -- because the officer -- my understanding -- I haven't looked at all of the testimony from the officer, but the officer essentially said -- essentially said that she didn't order you to leave Canada and did not create an obligation for you to leave Canada.

Fox:

Right.

Judge:

All right. And so Judge St. Pierre accepted that.

Fox:

Right, but that's why I believe that -- that her -- the credibility of her testimony was significant.

Judge:

Well, the -- just -- just to be clear there's -- there's two -- I just want to -- I just -- this is why I am trying to separate these two issues.

Fox:

Mm-hmm.

Judge:

Questions of fact, witnesses testify to; questions of law, judges decide.

Fox:

Right.

Judge:

Whether the -- whether a witne ss has views about the law, ultimately I -- I decide the law --

Fox:

Right.

Judge:

-- in -- in the -- in the court. A witness's opinion about Canadian law if -- foreign law we -- we have witnesses testify about, Canadian law the judges decide, and so the credibility of a witness with respect to law doesn't make the -- either there was an order or there was not, either there was an obligation or there was not, is a question of law, and so --

Fox:

But --

Judge:

-- if, as a question of law, there was not an obligation for you to leave that's -- I just want to understand where that leaves -- the rel -- the credibility of the witness is not relevant to a question of law.

Fox:

Right, but can I ask --

Judge:

Yes.

Fox:

-- if Officer Polisak did tell me that I was inadmissible, and that I was not permitted or authorized to return to Canada from the port of entry, wouldn't that then have -- how would I say -- wouldn't that have imposed on me a legal burden to not return to Canada?

Judge:

Well, the -- the -- the question and this is something that I'll -- and perhaps I'll -- I'll have Ms. Horneland take me through the -- the transcripts with respect to what this interaction was from the Crown's perspective, in terms of what impression you had when you -- what -- what the interaction was, and what you say the interaction was, and perhaps one thing that would be helpful for me is what the version of the interaction -- and I don't know where I can find the version of the interaction that you provided. I imagine you testified at your trial?

Fox:

I did.

Judge:

All right. And -- and where is the version that you provided to Judge St. Pierre about what happened on that day?

Fox:

I believe that is in the next tab of the transcript book. It was on the 6th -- March 6th.

Judge:

March 6th, yes. All right. And so -- all right, I see that -- I see that there's a -- a version -- and I will -- so this is the version that I should review, and you say that this is the version that ought to be accepted and was the version that you provided in your testimony?

Fox:

Yes.

Judge:

And that the -- that it was an error for Judge St. Pierre to accept the officer's version of what happened on that day?

Fox:

Yes.

Judge:

All right. All right. And you're saying that the officer found you inadmissible and then ought to have removed you from Canada at that point, but didn't.

Fox:

I -- I would agree with that, yes. I -- I -- I was not aware that -- well, sorry, it's just -- I'm contemplating how you phrased it, that she ought to have removed me, and this is an area that obvious l y you know much more than I do, so I am not going to question you on it. I just haven't thought of it in -- in those terms.

Judge:

All right. Well, I just -- I just want to be clear, I mean at -- at the time the officer -- based on the available -- information available to me you appear to be inadmissible to Canada, I mean that's -- that's the statement upon which you go to the -- that's the statement based on which you go to the United States.

Fox:

Yes.

Judge:

All right.

Fox:

Could I -- or if I may, could I turn your attention to -- I found that part in Officer Polisak's testimony --

Judge:

Yes.

Fox:

-- at page 69 --

Judge:

69?

Fox:

-- starting at line 36 through page 70 at 12, I guess.

Judge:

Yes, I have it -- I did review that.

Fox:

Okay. I mean that statement right there, when she said that's correct, that in those circumstances that -- like I -- I found that quite shocking. It was so clear that what she was saying was incorrect, and as a Border Services officer she must have known that what she was saying was not correct.

Judge:

Sorry, that the -- that the onus is on CBSA to prove that somebody is a non-citizen --

Fox:

Right.

Judge:

-- if they want to remove them?

Fox:

No, no, if a person shows up at a port of entry and CBSA has no knowledge of who they are or where they came from, so any random person, potentially a foreign national, can show up at a port of entry and as long as they don't have documentation or identification on them that CBSA would have to allow them to enter the country and she agreed to that.

Judge:

Why -- would have to allow them to enter, sorry?

Fox:

Oh, yeah, and then you see at line 44, after she says that's correct and then I present that scenario to her.

Judge:

All right. And -- all right, and you're -- you're saying that Judge St. Pierre should not have accepted -- I mean the state -- the statement that the onus is on CBSA in -- in order to remove somebody the onus is CBSA to prove that they are a foreign national --

Fox:

When a person is encountered within Canada, other than at a port of entry, the burden is on CBSA to show that the person is removable or doesn't have a -- a right to be present in Canada.

However, when a person is encountered at a port of entry, the burden is then on the person, who is presumed to be seeking entry to Canada, to prove that they're entitled to enter Canada.

Judge:

Correct -- well, and I -- and I can -- can see where there's -- there's some confusion in the -- in the -- but ultimately what -- I think this doesn't actually get pursued, the -- I don't believe you're a Canadian, I have to prove you're not a Canadian, or CBSA has to prove -- are you saying that if a person shows up, you don't believe they're a Canadian citizen, the burden is on you to prove and you're unable to prove, and they can enter if you're unable to prove -- prove -- all right, and you're saying that -- that assuming that this is a misunderstanding of the law or a -- an unclear statement of the law, that that ought to have gone to the officer's credibility, as to whether she told you you were inadmissible?

Fox:

Well, her credibility in general, I --

Judge:

Well, and in general -- but in -- in terms of what -- the -- the relevance of credibility is to specific --

Fox:

Right.

Judge:

-- statements that are either going to be accepted or not accepted. Credibility -- as a general proposition, a -- a witness with marginal testimony can be completely un -- not -- not credible, if their --

Fox:

Right.

Judge:

-- testimony is not relevant to anything it doesn't -- nothing turns on it, so the issue that it turns on is whether or not she told you you were inadmissible.

Fox:

Yes.

Judge:

In other words, whether or not she made this statement -- I just want to be clear -- whether or not she made the statement, something along the lines of, "Based on the information available to -- to me you appear to be inadmissible to correct."

Fox:

Correct, yes. I believe her willingness to make a statement as to the one that I just drew to your attention here on page 69 and 70, should have shown the court that she was willing to make false statements in this -- in her testimony.

Judge:

All right. And what does she -- she says she did not tell you you were inadmissible ?

Fox:

That's correct. She -- she says that she never said anything like that. I believe she had testified that she told me that I could return to Canada.

Judge:

All right. And both before and after, based on the information in FOSS and GCMS, you did in fact come back to Canada?

Fox:

When you say both before and after --

Judge:

So before the interaction with the officer on --

Fox:

March 15th, 2019?

Judge:

Yes. So in March of 2019, you had already been deport -- been removed to Canada from the United States once.

Fox:

Yes.

Judge:

In other words --

Fox:

Yes.

Judge:

-- Canadian Immigration authorities had been satisfied at that time that you were a Canadian citizen.

Fox:

Yes, I was deported. I don't believe that they were satisfied that I was a Canadian citizen. I believe that they know I'm not a Canadian citizen, and they're just doing what they are doing probably because Homeland Security requested them to or something.

Judge:

Well, according to Officer -- according to the officer, FOSS indicates that you're a Canadian citizen or -- or GCMS indicates you're a Canadian citizen.

Fox:

Well, according to the officer's testimony, but --

Judge:

That's what I'm saying, according to the --

Fox:

-- the GCMS record --

Judge:

-- the -- the testimony of the officer that was accepted by --

Fox:

Right.

Judge:

-- Judge St. Pierre, you are a Canadian citizen -- the -- the records show you to be a Canadian citizen.

Fox:

That -- that was her testimony, but the record don't -- doesn't actually show that.

Judge:

Well, I -- I'm -- what I'm asking is what her testimony was.

Fox:

Okay.

Judge:

Her testimony is that the records show you to be a Canadian citizen.

Fox:

Yes.

Judge:

You accept that the -- that the Canadian Immigration authorities allowed you entry --

Fox:

Yes.

Judge:

-- returning from the U.S. on -- presumably on the understanding that you were a Canadian citizen or -- or the pretense -- and I -- I say pretense in the sense that you don't accept that you are, but --

Fox:

Right.

Judge:

-- that the justification for allowing you entry at that time would have been that you were a Canadian citizen.

Fox:

Yes.

Judge:

All right. And after Ms. -- after March of 2019, but before the trial before Judge St. Pierre, you came back to Canada and at that time the GCMS -- whatever was on the system led the Canadian authorities to allow you entry back into Canada as a Canadian citizen at that time?

And still this moronic motherfucker is trying to convince himself that there must have been something in the GCMS record which led the Canadian authorities to believe I am a Canadian citizen, but there's not! The fucking GCMS report is publicly accessible, right here on this website GCMS report. There is absolutely nothing in there that suggests I am a Canadian citizen. Just face it: CBSA knew I was not a Canadian citizen, yet they allowed DHS to deport me to Canada anyway. Why is that so hard to believe? It's really no different than when a police officer charges a person with a crime even though they know the person is innocent (but nobody has difficulty accepting that that happens).

It amazes me that Edelmann and all these other judges so adamantly refuse to accept that there is simply corruption in the justice system.

Fox:

That I -- I wouldn't be able to comment on, I don't know -- because when I was brought back to Canada at that point I was in custody, and so I -- I didn't voluntarily go like into --

Judge:

You -- you were not extradited?

Fox:

Correct.

Judge:

All right. So -- and so what you're saying is that the conclusion by the officer that you were a Canadian citizen as -- because that's what she ultimately -- that's what she says happened on that day, she looked at the -- at the system and the system said you were a Canadian citizen and she said you were free to go, something along those lines?

Fox:

I agree that that is what she testified about, but I do want to point out that her notes in the GCMS did not say that at all, and I wish we had those here, but unfortunately we don't.

Judge:

All right. Well, the -- the GCMS notes are only relevant to the extent they were put to her in cross-examination, so if you --

Fox:

Right.

Judge:

-- if you want to take me to the cross- examination where those notes were put to her and you say that Judge St. Pierre didn't consider -- because ultimately I'm -- I'm not making a -- a -- a fresh decision about this officer's credibility.

Fox:

Right.

Judge:

I'm looking at -- and I will have a close look at -- at Judge St. Pierre's reasons and I -- and I want to understand why you say he was -- he -- and the -- the wording -- and I don't know that the wording really matters, I mean it -- the -- the threshold will be a palpable and overriding error, in other words that there's -- there's a clear -- there's a clear mistake on the part of Judge St. Pierre.

I mean that's -- that -- I don't -- I'm -- I'm paraphrasing, but that's what ultimately you will need to show, that Judge St. Pierre made a clear error when you are dealing with errors of fact, in other words that he made a mistake in terms of not considering the evidence or -- or misapprehended the evidence or made some --

Fox:

Right.

Judge:

-- very glaring error in -- in doing that.

Fox:

But if certain documents were entered as exhibits, they were part of the record at trial, shouldn't they then be available on appeal for review?

Judge:

Well, but the -- the issue is -- is that you're -- your argument is that this officer is not credible --

Fox:

Yes.

Judge:

-- because of things that are in these documents.

Fox:

Yes.

Judge:

To be fair to a witness, if you are going to challenge somebody's credibility based on documents or information you have to put that information to the witness.

So in terms of assessing this officer's credibility it will be what was put to the officer in cross-examination that will be relevant, not documents that --

Fox:

Right.

Judge:

-- were not put to her, because she's had no opportunity -- she was given no opportunity to comment on those one way or the other, so you -- you -- even if we had those documents and we were going to -- you were to provide me your interpretation of that, the officer may have had a perfectly plausible explanation or another interpretation of those documents, which is the reason for cross-examination.

Fox:

Right, okay.

Judge:

So ultimately I -- I don't know that much turns on us not having the GCMS notes, as what is relevant is what was put to her in cross- examination.

Does that -- so if -- if there are parts of the GCMS notes that you put to the officer in cross-examination, and that you say Judge St. Pierre failed to consider --

Fox:

Right.

Judge:

-- please take me to those and I -- I will consider those.

Fox:

I'm not prepared at this time to do that --

Judge:

All right.

Fox:

-- simply because I don't know --

Judge:

What I'm --

Fox:

-- where they are. I'll have to find them.

Judge:

Okay. What -- what I'm -- what I'm going -- what I'm going to propose is that we -- we take the -- it's soon time for the lunch break. I do want to give you the opportunity to make the arguments that you want to make, so what -- what I'm going to -- what I'm going to do is I'm going to propose that we -- we'll take the lunch break a bit early.

We will reconvene at 2:00 p.m. At that point I will ask you to -- you can just take -- you don't need to read through the transcripts with me. You can take me to the specific points in the transcripts that you want me to consider

Sure, so while I'm downstairs in the holding cell, where I'm not allowed to have a pen (or any writing implement), I'll scan through the 150, or so, pages of transcripts to find all the parts I want to bring to your attention, and hopefully when we reconvene at 2pm I will remember their exact locations. Because I can't write them down. Because we're not allowed to have a pen in the holding cells. You fucking smug bastard!

If I had a quarter for each time a judge proposed we stand down and I can prepare stuff while I'm in the holding cell; and I tell them I can't because we're not allowed to have a pen in the holding cells; and the judges always act so surprised by that (Like they've never fucking heard it before? Fuck off.); then the judges ask the sheriff to facilitate it and the sheriff says they will; but then I get down to the holding cells and nobody has any knowledge of facilitating a pen and they tell me "You can't have a pen in the holding cell"; and eventually court reconvenes and I tell the judge they refused to let me have a pen and the judge says something to the effect of "Oh, well, let's proceed. Are you ready?" What the fuck!?!? I swear the BC judges are either brain damaged or they just say what they say for the sake of saying it - nothing the judges say means anything, they just talk a bunch of gibberish, lip-service.

and I'll ask you to -- and then within -- by say 2:30, if you can have completed your submissions, because I do want to hear from -- I do want to have the -- give the Crown an opportunity to respond --

Fox:

Yes.

Judge:

-- but I do want to give you an opportunity to go through the transcripts, to find the parts that you want me to consider, so what we will do is we will stand down now, you can take the transcripts with you and identify the portions that you want to take me to, as well as any other arguments that you wanted me to consider today.

Fox:

Okay.

Judge:

All right. And then we'll -- I'll hear from the Crown starting at around 2:30. All right?

Fox:

Thank you.

Judge:

So on that -- we will take the -- the lunch break and resume at 2:00 p.m. Thank you.

(VIDEOCONFERENCE PAUSED )

(PROCEEDINGS ADJOURNED FOR NOON RECESS)

(PROCEEDINGS RECONVENED)

(VIDEOCONFERENCE RECOMMENCES)

Clerk:

We are back on the record, Justice.

Judge:

Thank you. Ms. -- do we have Ms. Horneland?

Clerk:

Yes, she should be there, sorry. Ms. Horneland, can you hear us? Oh, I see, sorry. [indiscernible].

Judge:

Oh, I see. There we are.

Clerk:

There's Ms. Horneland.

Judge:

There's Ms. Horneland. Okay. All right. Thank you.

You're able to hear us, Ms. Horneland?

Horneland:

Yes, I am. Can you hear me?

Judge:

All right. Thank you.

So I apologize for the late start this afternoon. Unfortunately, we had some technical difficulties in another case I was supposed to be giving a decision on, the -- but I will need to break just after 3:00. We're going to give it another try in terms of me giving a decision in the other case, but -- so -- but, please go ahead, Mr. Fox.

Fox:

Okay.

SUBMISSIONS ON HIS OWN BEHALF BY THE APPELLANT, CONTINUING:

Fox:

Earlier, one of the areas that I drew attention to in the transcripts had to do with Officer Polisak's testimony about CBSA's burden at a port of entry, with respect to people who might claim to be a Canadian citizen but have no documentation to prove it. Shortly after that we had stood down where we had taken the -- the lunch break and when we came back --

Judge:

Yes.

Fox:

-- I expressed my concern about that with the court, and there was some discussion between myself and the judge that I think is relevant to this proceeding, and so that would be in the transcript starting at page 71.

Judge:

This is the March 4th transcript?

Fox:

Yes.

Judge:

All right. So at 71?

Fox:

Yes, 71, at line 16 --

Judge:

Yes.

Fox:

-- through to the bottom of that page.

Judge:

Yes.

Fox:

And there I'm expressing to the court that I believe that what she had said is -- is completely incorrect and the burden is actually the -- the other way.

Judge:

All right, yes?

Fox:

And then on pages 72 and 73 there is further discussion between myself and the -- the judge and I believe that it's quite apparent in that discussion -- it's essentially all of page 72 and 73. It's apparent there that the judge understood CBSA's burdens and the laws at a port of entry to be as Officer Polisak had stated that they were, but also there was some confusion about what exact areas constituted the port of entry.

Judge:

Right.

Fox:

So the judge then said that --

Judge:

Well, sorry, I think -- I think what the judge says -- my understanding of what the judge is saying here is that you were not seeking entry.

Fox:

That's correct, I wasn't seeking entry. However, the presumption is that any person who enters an area designated as a port of entry is presumed to be a foreign national seeking entry, regardless if they actually are seeking entry or not. I mean from a -- from a CBSA perspective or an Immigration law perspective, that's a presumption that has to be applied to all people who enter an area designated as a port of entry.

Judge:

All right. And did -- had you -- this -- what you say is a -- is a presumption when somebody -- sorry, when -- what -- what do you mean by enter a port of entry?

Fox:

Um ...

Judge:

Like when -- when somebody comes into the booth -- these are at the Peace Arch, so you were -- you were -- this is at Peace Arch or the Pacific crossing?

Fox:

It's Peace Arch.

Judge:

So you're at the Peace Arch, there's -- there's two sides.

Fox:

Right, but you see this is one of the areas that there was some uncertainty and disagreement about, but it then gets addressed in the next part, where I had cross-examined Officer Polisak on it, and then --

Judge:

All right.

Fox:

-- she clear -- she clears it up, but --

Judge:

She clears up what -- what does she clear?

Fox:

Oh, the issue about whether or not -- like the CBSA building that's at the Douglas Border crossing, whether or not the reception area inside that building is considered within the port of entry. And so my questions to her were very specific on it, because I wanted to make sure that the -- the issue was cleared up appropriately or accordingly.

Judge:

All right. So did -- did the officer accept that you were seeking entry to Canada?

Fox:

Well, that -- that didn't really come up. That wasn't an issue.

Judge:

All right. So, sorry, what is the -- what is it that you're taking -- I'm -- I'm trying to -- I'm just trying to understand what it is you're taking me to this --

Fox:

Okay. Well --

Judge:

Are you taking me to this for the proposition that --

Fox:

On -- on pages 72 and 73, the reason for those --

Judge:

Yes.

Fox:

-- is to show the disagreement between my position and the judge's position on what constitutes the port of entry and -- and what the -- what CBSA's burden is -- burden of proof at the port of -- for people at the port of entry. So that shows that there was the disagreement and shows what the judge's understanding of it was.

Judge:

All right. And so the --

Fox:

But then --

Judge:

-- the -- the judge says -- because I'm just trying to understand where you say the -- the -- where the judge is confused here, because you're saying the judge's understanding is wrong, is that --

Fox:

Right, right. Let me find it specifically, sorry, I just --

Judge:

-- because he says you're showing up at the Border Services office, you're not seeking admission, you seek admission at the border.

Fox:

Okay. So the judge understood the port of entry to mean just the physical border itself up to the -- where the booths are, where you pull your car up to, and that his understanding was that the CBSA building, which is just north of that, was outside of the port of entry.

Judge:

All right.

Fox:

So his understanding was that when I walked into the CBSA building I was within Canada and I was not within a port of entry, and so the --

Judge:

Well, the port of entry is in Canada.

Fox:

Right, right, but the way it's phrased -- sorry, I'm trying to remember if it's phrased this way specifically in the -- the IRPA.

There is CBSA's burdens within Canada, other than at a port of entry, and then there is CBSA's burdens within a port of entry, you see, and their burden within Canada, but not at a port of entry is that they have to establish that the person is removable or not authorized to be in Canada.

However, within the area designated as a port of entry, the burden is on the person who is -- who is there presumably seeking entry to prove that they're entitled to enter Canada.

Judge:

Well, this doesn't -- I -- I just want to be clear isn't -- you're -- you're saying that the -- that IRPA makes a distinction between -- creates -- creates the burdens on the basis of being in a port of entry as opposed to on the basis of seeking entry into Canada?

Fox:

Okay. First, I should say I'm having difficulty remembering if that's what I read in the IRPA or if it was in the case law, and this is one of the areas that having access to the case law would have been helpful, but it -- it makes a distinction between everywhere in Canada except at ports of entry and then at ports of entry.

Judge:

All right. And so -- so you're saying that this issue -- so assuming that you are right, in terms of the -- the issue with the port of entry where -- where does that -- where does that get us today?

Fox:

Well, in the -- the next part that I was going to bring you to --

Judge:

Yes.

Fox:

-- Officer Polisak's testimony, she testified in there consistently with what I was saying and that starts at page 74, line 23.

Judge:

Yes.

Fox:

That's where I start questioning her on it all the way up to 76 -- page 76, line 10.

Judge:

All right. Okay.

Fox:

And I would say that where that gets us is once I entered the area designated as the port of entry, CBSA had a duty once there was some question about whether I was or was not a Canadian citizen, and the fact that they did not establish or determine that I am a Canadian citizen, they had a duty to not allow me to return or re-enter Canada from the port of entry at that point, so --

Judge:

Sorry, the -- but the hypothetical that you put to the officer you -- you -- you put a hypothetical to the officer that was different than your situation.

Fox:

I -- I think the --

Judge:

Your -- your situation was somebody who had been in Canada for a significant period -- in fact had been admitted to Canada, who shows up at the port of entry. Did you put that hypothetical to the officer?

Fox:

No, I -- I didn't mention that part of it, because I was trying to keep it just --

Judge:

All right.

Fox:

-- focused --

Judge:

Well, then these -- these hypotheticals don't -- I don't see how hypotheticals that don't apply to your situation are -- I mean you -- the hypothetical that I see here, you said somebody who came across the border who hadn't been admitted to Canada shows up at a port of entry --

Fox:

Right.

Judge:

-- I mean they have an obligation to show up at a port of entry if they -- if they cross the border.

Fox:

Yes.

Judge:

And that's set out in the Act, but you -- the -- this -- but this wasn't your situation.

Your situation was somebody who had been admitted to Canada, because you -- at the time you showed up at the -- at the port of entry you had already been admitted to Canada.

Fox:

Yes.

Judge:

And so you were someone who had been admitted to Canada, who was showing up at the port of entry from the Canadian side.

Fox:

Yes.

Judge:

All right. So was that hypothetical, was that situation put to the officer?

I explain to Edelmann that once a person enters an area designated as a port of entry it doesn't matter whether they entered from within Canada, or from the US. That from CBSA's perspective, everyone within an area designated as a port of entry must be presumed to be a foreign national seeking entry to Canada - regardless of whether or not they are actually a foreign national, and regardless of whether or not they are actually seeking entry to Canada.

The reasons for the preceding presumptions is because: 1) any person attempting to enter Canada illegally can simply lie to CBSA and claim they entered the POE from within Canada and CBSA would have to allow them entry; and 2) any person attempting to enter Canada illegally or to smuggle something into Canada illegally, if they are intercepted by CBSA, they could simply lie and claim they were not actually seeking to enter Canada. Therefore, until proven otherwise, the presumption is, and must be, that every person within an area designated as a port of entry is a foreign national seeking entry to Canada.

And again, this brought up another critical issue where I direly needed access to case law to prove my position was correct. But again, Edelmann ignored the fact that I was at an unfair disadvantage by not having access to case law. I believe Edelmann was well aware that what I was saying was true and correct, and that is why he did not want to allow me the opportunity to provide case law.

Fox:

That situation was not, but I -- I don't believe that it would be relevant whether I entered the port of entry from the Canadian side or the U.S. side, because once I entered the port of entry then it -- it doesn't matter which side I entered from.

Judge:

Well, I -- I'm -- I'm --

Fox:

I wish I had case --

Judge:

I'm -- I'm unclear as to what -- what it is you're suggesting. You're saying that anybody who enters the building is seeking entry into Canada?

Fox:

Oh, no, no, no, they may not actually be seeking entry to Canada and they may not actually be a foreign national, but they're supposed to be presumed to be a foreign national seeking entry to Canada.

Judge:

Well, why -- what -- what is the basis for that presumption?

Fox:

That's where the case law comes in.

Now, I know that there is case law to support this, because I researched this before I presented myself at the border and before I even came up with this plan of -- of doing any of that. Unfortunately, though, I don't have access to the case law to --

Judge:

All right. Was this case law --

Fox:

-- support that.

Judge:

-- put to -- would -- did you -- did you present this case law to Judge St. Pierre?

Fox:

I couldn't have, because I was in custody the whole time.

Judge:

All right. So --

Fox:

Also -- also I should say I certainly didn't expect that the CBSA officer was going to say the kinds of things that she had said. I expected that she was going to say some things that weren't going to be entirely true, but I didn't think that she was going to say that the burden on CBSA to prove that somebody is a Canadian -- or is not a Canadian citizen at the border.

Judge:

All right. And so basically what -- what you're saying is that the officer is wrong about that and --

Fox:

I'm saying --

Judge:

-- that Judge St. Pierre was wrong to believe her testimony because she was wrong about that?

Fox:

Well, I'm saying that she was wrong about it and that she knew that she was wrong about it, and I -- I agree or -- I would say that Judge St. Pierre should not have accepted her testimony on that -- at that point.

I mean I would have expected that it would have been fairly clear that -- that she was wrong, but --

Edelmann expresses skepticism about my argument, stating that he's attended the Douglas port of entry many times as an immigration lawyer, and also based on what I'm saying that means that every CBSA officer who goes to work at the port of entry would be presumed to be a foreign national. He's just being silly/stupid. Obviously, if the CBSA staff working at the POE have personal knowledge that a particular person is not a foreign national then they aren't required to apply that presumption to the person - because they already know. Also, it doesn't mean that CBSA must examine every person who is within the POE - it just means that they can examine any such person, without any evidence or probable cause. I believe Edelmann knows what I'm saying, he's just being a jackass.

Judge:

All right, but because I -- I can -- I can say that I've -- I've attended as counsel at the port of entry many times from the Canadian side. I -- you're saying every time that I attended there there was a presumption that I was a foreign national?

Fox:

Um ...

Judge:

Like I'm trying to understand what -- what -- what it is that you're -- you're -- you're suggesting as a legal principle --

Fox:

Right, right.

Judge:

-- but every officer who goes into there is presumed to be a foreign national when they show up for work that day?

Fox:

Well, for the purposes of the Immigration laws, yes.

Now, that doesn't mean that CBSA has to investigate or interrogate every person who enters the area designated as a port of entry, but certainly in a case where somebody enters the area -- the area designated as a port of entry and their identity and their citizenship is unclear, and that person is stating unequivocally that they are not a Canadian citizen and they have been convicted of a criminal offence, in that case there should be.

And I'm certain that there would be a clear burden or duty on CBSA's part to not simply allow the person back into Canada, which is what happened in this case. I showed up at the border, I told him them I'm not a Canadian citizen, I was convicted of an -- an indictable offence. They agreed that I would not be admissible based on that, and I mean for them to say, well, we don't know who you are, but welcome back to Canada anyway, would seem a little outrageous to me.

Judge:

All right.

Fox:

And then there was some further discussion or cross-examination of Officer Polisak regarding additional records that she had checked, specifically my CPIC record, and the reason that I questioned her on that is at one point, I think it was on direct, she had stated that all of the records that -- or all of the information that she had seen indicated that I was a Canadian citizen.

However, we had already established that the FOSS record and the GCMS both stated that I was born in the U.S.

Judge:

Sorry, how is that relevant to you being a Canadian citizen?

Fox:

Well, because if the Immigration authorities records state that I wasn't born in Canada and I have never applied for Canadian citizen then I'm not --

Judge:

There are -- there are millions of Canadian citizens who weren't born in Canada --

Fox:

Right, right, but until they --

Judge:

-- or at least hundreds of thousands, I -- I imagine millions, but --

Fox:

Until they establish their right to citizenship, the presumption is that they would not be a Canadian citizen, would it not? I mean if a person is born in a foreign country, until they can show that they have some historical connection to Canada cer -- certainly the Canadian government is not simply going to say, okay, you're a Canadian citizen until we prove otherwise.

Judge:

Well, no, but you're -- you're -- sorry, be -- because you've jumped -- there's two -- one is GCMS or FOSS identified you as a Canadian citizen according to the officer --

Fox:

According to the officer.

Judge:

Well, that -- I mean that's -- that's the testimony that was before Judge St. Pierre, that accord -- the officer's reading of whatever was in GCMS and FOSS was that you were a Canadian citizen, at least two officers had interpreted whatever was in GCMS or FOSS in the same way in the years -- in the years prior to and after that, and so that -- that's what the testimony was -- was that this officer understood the records to say that you were a Canadian citizen.

Edelmann is mistaken. In 2008, CBSA officer Steve Jacob at the Edmonton CIC office made an NCB entry in my FOSS record stating that he was able to conclude that a person named Ricky Riess was born in Sudbury, ON and that a passport was legitimately issued in that name. Jacob did not claim he confirmed anything. He did not say he did any investigation. He did not say he confirmed, or even concluded I am the person named on the passport. Then, in 2019, Polisak read Jacob's note and made her supposed determination based solely on Jacob's note. Neither Jacob nor Polisak made their conclusions based on anything in the FOSS or GCMS records - because there is absolutely nothing in the FOSS or GCMS records which would give any indication that I have any citizenship or immigration status in Canada - other than Jacob's and Polisak's notes.

This is why, when I cross-examined Polisak, I asked her whether other CBSA officers will now have access to her notes in the GCMS. In any future dealings I may have with CBSA, those officers will see Polisak's notes, some of which were proven at the trial to be plainly false, and they will accept those notes as being truthful and reliable. Just as Polisak took Jacob's notes as being truthful and reliable.

And that is what happens when you have stupid, brain-dead, automatons getting their information from other stupid, brain-dead, auomatons. One moron says something false, then 100 other people repeat what they heard that moron say, then you get moron judges like this saying "Well, 101 people all came to the same conclusion so it must be true."

Fox:

But I believe we covered earlier where I cross-examined her on the GCMS and the FOSS entries, where it stated that I was born in the United States.

Judge:

Yes --

Fox:

Okay.

Judge:

-- as are many Canadian citizens.

Holy fucking Christ, dude! Get your head out of your fucking ass for just a moment.

The FOSS record was created at some point prior to 2008-05-21. At that time IRCC determined that I was born in the US and that my citizenship was "Unknown". On 2008-05-21, CBSA officer Steve Jacob made an NCB entry in FOSS, claiming he concluded I was born in Sudbury, ON. Yet, IRCC, which is the only agency empowered to declare that someone is or is not a Canadian citizen, did not change the Country of Birth in their records (including the FOSS) because they knew what Jacob said is false.

Skip ahead 11 years, to 2019. CBSA allowed DHS to deport me to Canada two times (in February 2013 and May 2013), and CBSA conducted at least two investigations regarding me place of birth and citizenship. Following those two investigations, the continued to insist they believe I am the person that was born in Sudbury, ON. Yet, still IRCC does not change my Country of Birth in their records.

In January 2019, under the direction of my probation officer, I apply for social assistance. The social assistance department contacts IRCC to determine my status because if I'm not a Canadian citizen and have no legal immigration status in Canada I am not elegible to receive social assistance. IRCC looks into it, then informs the Ministry of Social Development that I am not a Canadian citizen. My application for social assistance is denied based on that.

After applying for social assistance, the Ministry of Social Development contacted CBSA about me. CBSA supposedly investigated me again, and again they claimed that as far as they're concerned I am a Canadian citizen. That's what they told the Ministry of Social Development. But the Ministry of Social Development makes their decisions based on what IRCC determines, not on what CBSA claims.

In January 2019, when the Ministry of Social Development contacted them, IRCC created a GCMS record for me. In the newly created GCMS record, IRCC again stated my Country of Birth as "United States of America" - even after Steve Jacob's NCB entry in FOSS, and after the numerous supposed investigations CBSA had done where they keep claiming all the evidence supports that I'm Ricky Riess from Sudbury, ON.

Then, after Polisak interacted with me on 2019-03-15, and put her notes into GCMS, neither IRCC nor CBSA changed the Country of Birth in the GCMS record. And even after I cross-examined Polisak at my trial, and grilled her on my GCMS record, again neither IRCC nor CBSA changed the Country of Birth field in the GCMS.

After all that, over the period of the past 15 years, if CBSA and/or IRCC actually thought that I am Ricky Riess from Sudbury, ON, then they would have set the Country of Birth field to "Canada" when they created the GCMS record.

But if IRCC were to set the Country of Birth field to "Canada", knowing it's not true, and with me making no claim of being born in Canada, then that would be a very, very bad thing for them.

Fox:

Right. And then -- well, I'd like to turn to page 91, if we could.

Judge:

Yes.

Fox:

Let's see, lines 37 to 40, I'm reading from Officer Polisak's declaration, this is what went into the GCMS record.

Judge:

Sorry, 90 -- sorry, page?

Fox:

Oh, page 91.

Judge:

Yes.

Fox:

Lines 37 to 40.

Judge:

30 -- yes.

Fox:

And there in her declaration, which was her -- which were her notes in the GCMS record, she states that:

At this point it cannot be confirmed the subject is not a Canadian and his explanation of stealing Riess's identity cannot be confirmed.

That was the only statement that she made in the GCMS record or in her declaration regarding my citizenship --

Judge:

Yes.

Fox:

-- simply that she couldn't confirm that I'm not a Canadian citizen, but she never stated that she believed or confirmed that I was a Canadian citizen, like --

Judge:

Yes.

Fox:

-- it -- it seems to me that at the time that I presented myself at the border, there were so many questionable things that came up, it seems surprising to me that they would not at least detain me for -- until they could investigate further and determine who I am and whether or not I really am a Canadian citizen.

So my point with all of this is I think all of this contributes to a lack of credibility on the part of Officer Polisak.

Judge:

And coming back to the suggestion that she told you that based on the information before her you were inadmissible?

Fox:

Yes.

Judge:

All right. And then from there your interpretation that inadmissibility meant you ought to go to the United -- that you had to go to the -- you were obligated to go to the United States?

Fox:

But to be fair, more specifically I -- I would say that it wouldn't mean that I was required to go to the United States, just that I was prohibited from going to Canada.

Edelmann says, according to my testimony, Polisak didn't actually "prohibit" me from returning to Canada. What the fuck is wrong with this guy?

If you're at a port of entry, and a CBSA officer tells you you're inadmissible, that means you are not permitted to enter Canada. Kind of like if you're at the entrance to a building and there's a police officer standing at the door and that officer tells you you are not permitted to enter the building. It is not necessary for the officer to explicitly say you are "prohibited" from entering the building. It is implied from his statement that you are not permitted to enter.

I really think Edelmann's just being a dick at this point. He's just desperately trying to find reasons to rule against me. I think by this point, Edelmann finally realizes that there is, in fact, corruption in the justice system, but he'd rather stick his head in the sand and continue to pretend it doesn't exist.

Judge:

All right. And -- but you -- you didn't tell -- your testimony didn't -- the officer didn't prohibit you from going into Canada?

Fox:

Well, by stating that I'm inadmissible.

Judge:

Well, there are plenty of people in Canada who are inadmissible.

Fox:

But if you're inadmissible aren't you not permitted or authorized to be present in Canada?

Judge:

Well, there are plenty of ways to -- to address inadmissibilities that do not require departing Canada, so -- and -- and one can be many -- many people are inadmissible to Canada and various exceptions are made on a daily basis for various types of inadmissibilities.

Fox:

I understand that that would be the case if the person is encountered inside of Canada, but if they're encountered at a port of entry it's -- it's my understanding that if they're encountered at a port of entry, since they are not considered to already be admitted, they're not present in Canada, then they cannot be removed at that point, because they are not actually in Canada. They can simply be denied admission. That's my understanding.

Judge:

All right. Well, you're -- you're -- what -- what you're -- what you're saying -- I just want to be clear, the officer said based on the information you're giving me it would appear that you're inadmissible.

Fox:

Yes.

Judge:

And then the officer says I don't know if he's Canadian or not.

Fox:

Of course I didn't receive this -- these GCMS notes until much, much, much later.

Judge:

No, but the off -- what the officer -- what the officer says that she wrote in the GCMS --

Fox:

Right.

Judge:

-- is I don't know if this guy is Canadian or not, he says he's not.

Fox:

Right.

Judge:

The system says he is -- is -- is essentially what -- that's -- that's her testimony. The system says he's Canadian, he says he's not; I don't know what's going on here.

Fox:

Okay.

Judge:

It -- it is essentially what -- it can't be confirmed one way or the other.

Fox:

Right.

Judge:

So the note is put on -- on GCMS and -- and then you're saying that by saying that, based on what you've told me you are inadmissible, you understood that you should continue on to the United States from there?

Fox:

Yes. I understood that to mean that my only legal option at that point was to proceed to the United States.

Judge:

All right. And so if that understanding -- so you're -- you're saying -- I just want to understand the argument before me.

You were saying that your understanding is correct as a matter of law and that Judge St. Pierre got it wrong, when he said that -- when -- by not finding that the only -- that you were effectively being removed and ordered to leave Canada at that point is that Judge St. Pierre got it wrong or are you arguing that you misunderstood the law?

Fox:

My argument is that Judge St. Pierre got it wrong, but I do accept that I could be wrong. I mean I'm not so arrogant that I'm going to insist that I'm right and the judge is wrong.

Judge:

All right.

Fox:

Other than that, there were just a few other inconsistencies or statements that I found that were proven to be false by Officer Polisak, but I don't think that it would add anything to my arguments, so they're not critical at this point.

The one thing I did want to mention, though, is with respect to Issue 1, I believe that once Issues 3 and then 2 are accepted or determined to be correct then Issue 1 would become relevant. That's the Crown's agreement not to prosecute me if I were removed or asked to leave.

Judge:

But you say, sorry, the -- the agreement not to prosecute you would go to --

Fox:

My argument there was that my position is that what happened was that I was effectively removed. I presented myself at the border and then I was denied readmission and so --

Judge:

All right.

Fox:

-- I was essentially removed and since during the sentencing submissions on the index offence Mr. Myhre, the Crown, had stated on the record that in such a circumstance the Crown would not prosecute me for a breach, because he wouldn't consider that a voluntary -- or he would consider that an involuntary removal --

Judge:

Did you -- did you apply for a stay of proceedings based on abuse of process?

Fox:

A stay of proceedings in this matter?

Judge:

Yes.

Fox:

No.

Judge:

All right, because in -- in terms of the -- a decision to prosecute or not to prosecute is not -- it doesn't go to the ultimate guilt or non- guilt of an individual.

So, for example, if the Crown makes a promise to someone not to prosecute them the -- the remedy for the Crown reneging on that promise is an abuse of process application. It doesn't go to the ultimate question of guilt. In other words, when somebody makes a -- a -- the Crown makes a deal with somebody which we see in some -- in some cases and then renegs on that agreement, there may be an abuse of process, but it doesn't change the guilt or non-guilt of the person.

And so I just want to be clear on what it is that you're arguing with respect to representations that were made by Mr. Mhyre, but ultimately I'm not sure that much turns on this, because if -- if you were ordered to leave then -- and I -- I'll -- I'll hear from Ms. Horneland, but if -- if -- if you were ordered to leave and you did not have the required mens rea to commit the offence, in the sense that you had no choice, in other words you were -- you were ordered -- you were forced to commit the offence, if you were not ordered to leave then Mr. Myhre's representations are somewhere irrelevant. Did you see -- like this really comes down to whether you were ordered to leave Canada or not.

Fox:

Right, I -- I understand that and hearing you phrase it in that way makes me think I believe that was one of the issues that Ms. Brown had brought up in the amended notice of appeal --

Judge:

Yes.

Fox:

-- but the reason I chuckled a moment ago was what you're saying would be absolutely correct, but if the Crown gets a warrant for a person's arrest, based on something that they really shouldn't be prosecuting anyway, and then U.S. authorities send me back here to be prosecuted for that, I mean it's a little -- it's a very small reassurance to know that, well, they can't prosecute me for something and I should apply for an abuse of process after U.S. authorities have come and arrested me and brought me back to Canada to prosecute me for something that I shouldn't have been arrested for in the first -- that was the only reason I chuckled.

Judge:

All right. Well, anyway, that -- that's a separate -- that's a separate question as to --

Fox:

Yeah.

Judge:

-- as to whether -- what the remedies might be for that are -- but ultimately the -- the question before me is was Judge St. Pierre correct or -- or what should --

Fox:

Right.

Judge:

-- Judge St. Pierre's decision be upheld as far as your intention to violate this order.

Fox:

Right, okay.

Judge:

Is that --

Fox:

Yes.

Judge:

All right. So the -- that the --

Fox:

I -- I --

Judge:

-- the issue with Mr. Myhre is a bit of a side issue, in the sense that if you -- if you had the necessary intent --

Fox:

Right.

Judge:

-- then there was no agree -- the agreement with Mr. Myhre was not relevant --

Fox:

Right.

Judge:

-- and if you didn't have the necessary intent then you should have been acquitted and the agreement with Mr. Meyer is irrelevant, is that fair?

Fox:

Okay, yes. Yes, right, correct.

Judge:

All right. Okay. I just want to make sure we're on the same page that --

Fox:

Thank you.

Judge:

Okay. Thank you.

Fox:

And I'm -- I guess I'm done. I think that's all that I can say.

Judge:

All right. Thank you. Ms. Horneland?

Horneland:

Yes, thank you, Justice.

Judge:

I -- I don't know if I have -- do I have a book of authorities from you or should I have a book of authorities from you?

Horneland:

Yes. There should have been a book of authorit ies. It's a blue Cerlox book filed August 24, so -- and it's -- it's entitled Respondent Book of Authorities Updated and Corrected. It's the companion to the Book of Argument and Materials, also filed August 24th.

Clerk:

I have the original [indiscernible].

Judge:

All right. The original updated and corrected and then -- oh, I see, I've got -- oh, this is the Argument and Materials, so that -- that should stay on the file and --

Clerk:

Right.

Judge:

-- then this is the Authorities, Updated and Corrected.

Clerk:

So is that the one you were --

Judge:

This is the one I'm looking for.

Clerk:

Okay.

Judge:

Thank you. All right. Thank you.

Clerk:

Sorry, Justice, we've got -- we've got another set. This one is one is September 5th.

Judge:

I think it was originally scheduled for -- I think that the -- that the date -- it's the date at the top that will be the -- oh --

Clerk:

Yeah, I don't know why -- sorry, [indiscernible] I have two sets, one set is --

Horneland:

Yes, there -- there --

Judge:

Oh, it will be the August 27th one?

Horneland:

August 24th should be the stamp that it was -- the date it was --

Judge:

All right. I have the August 24th one.

Horneland:

-- that it was filed.

Judge:

All right. Thank you.

Horneland:

So that's the -- those -- those are the books the Crown will be referring to and I -- if there's confusion -- there were earlier arguments filed, but -- but the latest one is the one I'll be relying on and the reference to corrections, Justice, is simply that the transcript references were corrected to correspond with the new consolidated books, so that is why we filed the new argument.

So if you are -- if you have the materials before you now, Justice, I can commence my submissions.

Judge:

I -- I do and I -- I think that the -- the part that would be of the -- what -- the part that I think would be helpful for me, in terms of focusing your submissions is on the implications of Zora and the -- the mens rea, like the -- that -- that aspect of what the test is that's -- that ought to have been applied by Judge St. Pierre.

If -- you can just assist me, I'm just -- because I'm just trying to remember the timing of Zora, but is --

Horneland:

Yes.

Judge:

This was pre -- this was a pre-Zora -- this was a pre-Zora case, is that --

Horneland:

Yes, yes, Justice.

Judge:

And so if you could just assist me with what test Judge St. Pierre was applying and what -- what I am to make of that post-Zora would be helpful for me.

Horneland:

Okay.

SUBMISSIONS FOR THE CROWN/RESPONDENT BY CNSL J. HORNELAND:

Horneland:

Yes, I can do that, Justice, and so that -- Zora I -- I do refer to in my -- in my argument and it comes up under Issue 4, so let me just take you to that point.

My friend's Issue 4 is -- it begins on -- my written submissions begin on page 13 in my book of argument.

Judge:

Yes.

Horneland:

And I'll just -- I'll take you through it, Justice, but just as a brief overview in -- in response to your question about Zora, I do refer to Zora. It was a decision that was rendered by the Supreme Court in 2020, so it did follow this decision of Judge St. Pierre.

The Zora decision -- and I'll get to it in more detail once I make my way through my argument, but the Zora decision as, Justice, you're likely aware, was one that was rendered in respect of the custody applied for breach of bail -- for a breach of recognizance. This is of course a breach of probation, but nonetheless Zora -- the court does mention a breach of probation offence in obiter in Zora, and so I will -- I'll take you to those comments, Justice, so you can put that in context in -- in [indiscernible] case.

Judge:

Thank you.

Horneland:

So -- so the issue that I articulated at Issue 4, on page 13 of my argument, is whether the trial judge erred in respect of the analysis of reasonable excuse for failing to comply with the probation order.

So this is -- this is a ground that the appellant has raised in his notice of appeal filed November 17, and of course I appreciate Mr. Fox has said today he's not necessarily advancing them and he hasn't really advanced them in his oral submissions, but because this was filed for him and the Crown argument was prepared in response to all of those grounds I think it appropriate for the court to deal with it.

Your Honour, it -- it's more articulated -- further articulated as the trial judge erring by not considering whether the Crown had proven beyond a reasonable doubt that the accused had the subjective mens rea for the breach of probation offence, before proceeding on to consider whether the accused has a reasonable excuse for the breaches otherwise proven.

So in order to pre -- pre -- for this court to make a determination of whether the trial judge correctly applied the law, of course, we need to first turn to the -- the reasons for judgment and the record.

I start first with the record and the -- the reasons for judgment -- I'm at paragraph 51 of my argument. Really, Your -- Justice, at the outset of the reasons for judgment you will see at paragraph 4 that the trial judge acknowledges straight away that the key issue for him to determine in this case is -- is whether or not Mr. Fox, the appellant, had a reasonable excuse for walking across the border and thereby allegedly breaching his conditions.

He also cited in his reasons for judgment the Goleski case, so I -- I describe this case at paragraph 53 of my written case. Now, the case that I reference in paragraph 53 is indexed in my book of authorities at tab 2, Justice, and I'm referring to an index there of the Court of Appeal decision. It's a decision of Justice Frankel and I can advise that his decision was affirmed by the Supreme Court of Canada and that is also indexed in my book, but if I could just describe the Goleski case for you, Justice, it was a case where Mr. Goleski was charged with failing to provide a sample of his breath in an impaired driving investigation.

That offence, as it was then, entitled him to rely on a -- on a reasonable excuse defence, and he testified at trial that he refused to provide a sample because he believed that the officer would lie about the breath result.

Ultimately at trial, the trial judge wasn't satisfied that the accused had established that reasonable excuse and he found Mr. Goleski guilty. Mr. Goleski appealed, and on the summary conviction appeal his conviction was set aside and the -- the summary conviction appeal judge relied on a case called Lewko which is a Saskatchewan Court of Appeal case, and that case essentially held that the onus that the -- the defendant need only raise the reasonable excuse defence, that the burden remained on the Crown to prove a lack of reasonable excuse beyond a reasonable doubt. So essentially the summary conviction appeal judge found that the trial judge had the onus wrong by placing it on the accused, to prove on a balance of probabilities.

So following that summary conviction appeal, Justice, the Crown further appealed to our Court of Appeal and I have -- I begin my summary of that decision on page 14, paragraph 54 of my argument.

Mr. Justice Frankel for the court identified the issue as being where the onus lies when an accused asserts that he had a reasonable excuse for failing or refusing to comply in Goleski with a breathalyzer demand. So that's in the decision indexed at tab 2.

So Mr. Justice Frankel went on to more specifically ask whether the Crown must prove that the accused did not have a reasonable excuse beyond a reasonable doubt, or whether the accused must prove on a balance of probabilities of probabilities that the facts asserted give rise to a reasonable excuse.

Now, at the time Mr. Goleski committed his offence s. 794 was as I've excepted at paragraph 55 of my argument. I won't read it aloud, but I set it out there for you, Justice, because it -- it was in force for that period of time, but not in force for the time when Mr. Fox was convicted or sorry, when he committed the offences he was convicted of.

So -- and I'll get to that -- the implications of that in -- in a moment, but before I do let me just conclude my summary of the Goleski decision.

It's important in the Crown's submission that in the Goleski case Justice Frankel took the time to conduct a thorough review of the common law and the legislative history concerning the defence of reasonable excuse, and he ultimately found for the court that the onus was on the accused person to establish the reasonable excuse on a balance of probabilities.

He -- he affirmed the correct approach in [indiscernible] portion -- an excerpt there that I have at paragraph 56 of my argument. Justice Frankel was quoting from a decision called Sheehan, which was from the Newfoundland Provincial Court, and I won't read the entire except aloud, Justice, but the important part for the purposes of determining mens rea and how the -- the burden of proof around that element of the offence, this -- this is important in -- and relevant, in the Crown's submission, that Justice Frankel found that the correct approach is when an accused person raises this defence of reasonable excuse he or she is conceding that the Crown has proven beyond a reasonable doubt the existence of the mens rea and actus reus of the offence.

And so once they've raised that the onus shifts to the accused to prove on a balance of probabilities that they have established a reasonable excuse. So that was what was found by the -- our Court of Appeal.

As I said it was further appealed to the Supreme Court by Mr. Goleski. That appeal was dismissed and the Supreme Court affirmed that the law had been correctly stated by Justice Frankel of our Court of Appeal.

Now, an interesting twist for the purposes of this appeal, Justice, is that the reasonable excuse that was imported into s. 794 was repealed. Section 9 -- 794(2) was repealed in 2018, as I have set out at paragraph 58 of my argument. So that raises the question what does this mean, because of course Mr. Fox committed his offences on March 15th, 2019, after this provision was repealed.

And so I spent some time considering and -- and discussing in my written argument, Justice, you know, the implications of the repeal of that -- of that provision and I can tell Your -- you, Justice, that I was unable to find a case addressing that issue in this jurisdiction, and so I have had to refer to cases that are out of province, but which have directly addressed this very issue, that is the implications of the repeal of the provision and I -- I note the time.

I know, Justice, you have to break soon, but I will -- I can say that the line of authorities or the authorities that I have included in this portion of my argument essentially come to the conclusion that the implication of the repeal is that it did not disturb the common law, that Goleski is still the authority with respect to reasonable excuse, because the repeal of the provision did not specifically speak to doing away with that common law principle and that, in the absence of that, there is a statutory presumption that the common law will continue to apply.

And so there are quite a few decisions there that I refer to and describe. Of course, yes, they are from out of the province, but they, each and every one of them, conclude that Goleski appears to be the continuing authority in this area.

Of course what this means for this case is that we can go back to the issue as articulated in the notice of appeal and ask did the trial judge err in respect of his analysis of reasonable excuse for failing to comply with his probation order, and given that all of these authorities that I have pointed to that have found that Goleski appears to still be the correct authority, we can answer in the negative, that the trial judge did not err, and I can say that because as I said at the outset of these submissions, Justice, Mr. -- sorry, the Honourable Judge St. Pierre in his reasons for judgment specifically refers to the Goleski decision.

And so, in the Crown's submission, he very much correctly apprehended the correct law that applies to a case where the reasonable defence -- sorry, the reasonable excuse defence applies.

And if I can go to paragraph 66, Justice, if you're satisfied that Goleski was the proper authority to apply in this case as -- as I am submitting the court ought to, then -- then the submission of the Crown is that the -- the trial judge didn't err in law by not considering whether the Crown had -- had proved beyond a reasonable doubt that the accused had the subjective mens rea for the breach of probation, before going on to consider whether he had a reasonable excuse, because -- and I am coming back from my -- paragraph 66 of my argument midway --

Judge:

Yes.

Horneland:

-- through the paragraph, where Justice Frankel has stated in Goleski, when an accused person brings this issue he or she is conceding that the Crown has proved a reasonable doubt the existence of the mens rea and actus reus.

And so, in my submission, it would have been necessary, if we accept that that's the correct law, for the trial judge to specifically consider whether the mens rea had been proven beyond a reasonable doubt, because Mr. Fox raised this reasonable excuse defence and so was conceding that mens rea [indiscernible]. Now --

Edelmann gets into a discussion with Horneland about why the prosecution is considering this a "reasonable excuse" case rather than a "subjective mens rea" case.

Edelmann asks Horneland, if the CBSA officer had put me in handcuffs and walked me across the border, would this be a reasonable excuse case? She said, no. He asked her, if the CBSA officer put a gun at my head and ordered me across the border would it be a reasonable excuse case? She said, no. He asked her, so then how is it different if an armed border officer tells me I'm inadmissible and cannot enter the country, if I understood that to mean I must leave the country? Horneland had no response.

Subjective mens rea means that the person knew or believed that by engaging in the particular conduct he would be violating the probation condition. So, if he believed that, under the circumstances, his actions would not constitute a violation of the conditions, then he does not have the required subjective mens rea.

So you see, under the subjective mens rea requirement, if I believed Polisak telling me I'm inadmissible meant that I must leave the country then I would not be guilty of the violation because I was doing what I believed the duly authorized border officer was directing me to do. And, the burden is on the prosecutor to establish that the accused had the subjective mens rea before the burden shifts to the accused to establish that he had a reasonable excuse for committing the violation.

This discussion between Edelmann and Horneland clearly shows that if Edelmann believed my testimony (that Polisak told me I was inadmissible), over Polisak's testimony (that she did not tell me I was inadmissible), then I would have lacked the subjective mens rea. Which makes the issue of Polisak's credibility the single most important issue of the trial. And that is why it is so significant that the FOSS and GCMS records contradicted her testimony - she lied about extremely critical facts!

Throughout the entire trial, there was never one mention by the trial judge, of the subjective mens rea requirement. The trial judge repeatedly and consistently referred to the reasonable excuse defense but never once mentioned the prosecutor's requirement to establish subjective mens rea - not even in his Reasons for Judgment. That proves that the issue of subjective mens rea was never even considered by the trial judge.

And finally, notice how, in this discussion, when Horneland tries making her arguments she is nonsensical and rambling gibberish. She knows that this is an issue of subjective mens rea, not reasonable excuse. She's an evil, miserable, horrible, despicable, sleazy troll.

Judge:

Well, I guess that's my -- that's my question is -- is if someone is compelled to do something by law you -- you're saying they -- they have the mens rea and it goes to reasonable excuse? In -- in other words if -- if reasonable -- because in the -- in the case of probation -- a probation offence, reasonable excuse is built into the statute if I'm not mistaken. Is that correct? It's -- it's -- it's built into the offence itself?

Horneland:

Yes.

Judge:

But if -- if someone is compelled to do something by law that would be a violation of a statute that doesn't have a reasonable excuse provision in it?

Horneland:

Then that -- then they're -- there very well may constitute a reasonable excuse if they're --

Judge:

Well --

Horneland:

-- not complying.

Judge:

No, no, sorry, I'm -- I'm talking about a statute that does not have a reasonable excuse provision in it.

Horneland:

Oh, okay.

Judge:

So in other words if you -- if you're looking at -- if -- let's say for -- for argument's sake that this -- that this provision did not have a reasonable excuse provision and that Mr. -- Mr. Fox was, in fact, removed from Canada -- ordered removed from Canada what -- what would be the basis on which he would have a defence?

Horneland:

Well, yes, I think we'd be on -- in a different -- in a different place, so the court -- if there was no reasonable excuse imported into the provision, then the Crown would have to prove that the -- the accused intended and had the requisite mens rea to commit the offence. I think the --

Judge:

But the -- in the --

Horneland:

-- difference is --

Judge:

But I'm -- I'm trying to understand how -- why in this case we get to reasonable excuse and this isn't just a mens rea issue.

Horneland:

I'm -- I believe because the -- really the -- a lot of the focus of the trial proceedings were that Mr. Fox very clearly, with intention in a common sense, went to the border, presented himself -- voluntarily did so, but was asserting that he felt that he had to leave Canada and in -- and that was characterized by the court correctly in my view, as a reasonable excuse by Mr. Fox for leaving the country, such that he should not be found guilty of the offence.

Judge:

But -- but the --

Horneland:

So he --

Judge:

But the implication -- because in most reasonable excuse cases the person is conceding the mens rea for the underlying offence. In other words I -- I -- I refuse to -- to blow or I did drive over the speed limit, or whatever it is, but I had a reasonable excuse for doing so ; I left my -- I left my --

Horneland:

Yes.

Judge:

-- my -- my red zone or I went into my red zone rather because I -- and I had a compelling reason to do so, but I knew that I was going into the red zone.

Horneland:

Yes.

Judge:

In -- in this case --

Horneland:

And --

Judge:

-- if -- if he was ordered to do so -- and I understand the argument that -- that the -- the finding as to whether or not he -- he ought to -- whether or not he actually was ordered to do so and whether that finding was reasonable, but I'm -- I'm just -- I'm just trying to understand why we're not looking at this at the mens rea stage rather than at the reasonable excuse stage.

Horneland:

I suppose as you said it -- it seems very much to be on similar footing as the hypothetical that you just posed. It -- Mr. Fox went to the border and he -- he acknowledged that he was -- he went within a hundred metres of the border and he acknowledged that he walked across the border and --

Judge:

He did --

Horneland:

-- he knew that he was doing so --

Judge:

No, he -- he -- he --

Horneland:

-- but --

Judge:

Sorry, I -- I just want to be clear. He attended at the border with the intention of getting himself ordered across the border, but when he attended at the border he says he was not within a hundred metres, and there is not a finding that he was, he was 200 metres or something, the -- the -- the actual port of entry building is 200 metres from the border or something like that, so in -- when he's with the officer at that stage he hasn't breached his bail, correct?

Horneland:

Mm-hmm.

Judge:

Now, if she orders him into the United States -- I mean if she -- if she -- let's just say, for argument's sake, she put handcuffs on him and dragged him across the border, this wouldn't be a reasonable excuse case, correct?

Horneland:

No, it wouldn't --

Judge:

All right.

Horneland:

-- because -- yes.

Judge:

So if she -- if she held a gun --

Horneland:

And so --

Judge:

-- to his head and said walk across the border, this wouldn't be a reasonable excuse case.

Horneland:

No.

Judge:

So how is it different when she orders -- when the -- the -- an -- an armed border officer orders him -- if -- if that's what he understood, which he -- but if he understood that he was being ordered across the border why -- why does it become a reasonable excuse case at that point, rather than a mens rea case?

Horneland:

Well, I think that the trial judge didn't accept that -- that he had been ordered --

Judge:

Oh, I -- I understand he --

Horneland:

-- across the border --

Judge:

-- didn't accept that he -- I --

Horneland:

Yes.

Judge:

-- I understand that he didn't accept that, the -- but the difference is -- is that you -- if it's a reasonable excuse case, you say the law says that the onus is on him. If it's a mens rea case, then that's where -- that's where my question is, is if it's a subjective -- if the subjective mens rea is the issue do I have analysis from the -- from the trial judge with respect to subjective mens rea in the moment that he's deciding that he -- the -- because the judge seems to -- and says -- the point of dispute, he says he felt compelled to leave the country as he had in his mind no status to remain in the country.

That's -- those are the words of the judge, that -- that that's -- that's what the testimony was from Mr. -- that he felt compelled, so if -- if he was compelled to go across the border, how -- what -- what -- what -- at what point if -- and we're analyzing that at the mens rea stage, what -- what do I make of that?

Horneland:

I think that what I would point Your -- you to, Justice, would be the -- the finding of the trial judge that -- and I'm at paragraph 71 of my written argument. If the trial judge -- I -- I refer to the reasons for judgment --

Judge:

Yes.

Horneland:

-- and specifically so he refers to the -- the applicable mens rea in paragraph 4. He finds that he needs to consider the --

Judge:

In paragraph --

Horneland:

-- [indiscernible] intent --

Judge:

-- sorry, paragraph 4, yes.

Horneland:

Paragraph -- mm-hmm. Yes, and --

Judge:

Yes.

Horneland:

And then over the page I -- I excerpt some other paragraphs, 14, 19, 36, 39, 40. These are all paragraphs, Justice, where in my submission the trial judge is turning his mind to the issue of mens rea and the -- and whether or not he -- he was involuntarily removed or directed to leave.

I think what the trial judge characterized as -- as the mens rea is whether he intentionally and voluntarily walked across the border and I -- I draw that conclusion because -- and I'm -- I'll just -- let me get to the paragraph where the trial judge says in the reasons he voluntarily performed the action of walking himself across the border and then so I -- I -- in my view -- in my opinion on the reasons as a whole, and of course with those specific paragraphs in mind as well, my sense of it was that the trial judge characterized that as the mens rea, did this person intend to walk toward the border, come within a hundred metres.

I believe that there was really no disagreement as to that. That was his choice. This is how the trial judge characterized it, but he --

Judge:

But I guess the -- the question --

Horneland:

-- believes -- Mr. Fox believes he has an excuse.

Judge:

-- but the -- the question for me is that if -- if it's an objective standard -- if he -- if the -- the trial judge makes a finding that he was not objectively compelled to walk across the border --

Horneland:

Mm-hmm.

Judge:

-- but if he subjectively felt compelled to walk across the border is --

Horneland:

Yes.

Judge:

-- is -- is the -- is the test after -- following Zora that subjective compulsion? That's -- I guess that's my question is -- is what is the test, in terms of if he subjectively was -- felt that he was compelled, his understanding of the situation was that he was compelled to go across the border, I mean that's ultimately Mr. Fox's defence -- Mr. Fox's argument as I understand it, that he -- he understood that he was compelled to walk across the border.

Horneland:

Yes, and I -- I think that the trial -- the -- the reasons to me read as the trial judge not accepting that, that he found --

Judge:

Well, but the -- but the trial judge doesn't --

Horneland:

-- [indiscernible] --

Judge:

-- the trial judge doesn't -- and perhaps you can just assist me with where the trial -- the trial judge says he objectively was not compelled, in other words objectively he had no obligation to cross the border, but does the trial judge make a finding that he subjectively was not compelled?

Horneland:

I can take your -- you, Justice, to paragraph 38 and --

Judge:

Yes.

Horneland:

-- and -- of the reasons and this is an important paragraph, because in it midway the trial judge says, you know, even if I accept his evidence at the highest point, that somebody told him that he was inadmissible to Canada, he had a choice. He could leave or he could stay and fight that designation and be arrested.

I think he just -- his -- you know, His Honour doesn't say specifically that that constitutes a subjective mens rea, but that's how I read that paragraph. It very specifically refers to Mr. Fox and -- you know, what -- what the trial judge found was in his mind in respect of mens rea.

Judge:

All right.

Horneland:

I suppose also -- I mean I could into -- to that a little bit further, but I note the time. I can take you -- take you back there, Justice, if I have --

Judge:

All right. Perhaps we could come back after the --

Horneland:

[indiscernible] after the break --

Judge:

-- I -- I do -- I do note the time and I do need to go and -- and give another decision, so what I -- what I will suggest is that we'll take the afternoon break. I'm hopeful to be back to 20 -- well, let's -- to be on the safe side let's say at 3:30 we can resume and then I -- I expect that I -- I'll be able to be back by 3:30 and we can resume at that time. Thank you.

(VIDEOCONFERENCE PAUSED)

(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)

(PROCEEDINGS RECONVENED)

(VIDEOCONFERENCE RECOMMENCES)

Clerk:

We are back on the record, Justice.

Judge:

Yes. Please go ahead, Ms. Horneland.

Horneland:

Thank you, Justice.

SUBMISSIONS FOR THE CROWN/RESPONDENT BY CNSL J. HORNELAND, CONTINUING:

Horneland:

So I think it would be best if I just return to the topic that we left on, which was the mens rea of the offence and the trial judge's treatment of it.

I -- I think it would be helpful to turn to paragraph 67 of my written argument, which is on page 19.

Judge:

Yes.

Horneland:

And of course this -- this issue is framed as to whether the trial judge failed to provide sufficient -- or provided insufficient reasons for deciding that the mens rea of the breaches have been proven, so of course importing the question of whether the judge actually did consider properly the mens rea.

So I have dealt with that issue in -- in the paragraphs below and I have excerpted some portions of the trial transcript and referred to the reasons for judgment, which in my submission demonstrate that the trial judge did properly apprehend that he didn't need to consider whether Mr. Fox had the requisite mens rea, before going on to consider whether he had a reasonable excuse for crossing the border.

There is a -- an exchange between the court and Mr. Wolfe, who was the prosecutor at the trial that I have excerpted in paragraph 70 of my written argument, where the court articulates that he is satisfied that there is really -- it is not contentious that -- that on the evidence that he has heard that there -- the physical act or the actus reus has been established, and that Mr. Fox crossed the border and was within 100 metres of it, but he notes it -- he -- he needs to also consider whether the accused -- and I -- it's underlined there, knowingly or recklessly or voluntarily performed or failed to perform, and the prosecutor, Mr. Wolfe, agrees and says, yes, it comes down to intent, mens rea, whether Mr. Fox knowingly intended to breach the order.

And so following that -- immediately following that exchange the trial -- trial judge gives oral reasons for judgment and -- and as I have said in paragraph 71, which I took you to earlier, Justice, where he specifically refers to the mens rea and his -- his considerations in the preceding paragraphs with respect to that, and ultimately finding that Mr. Fox voluntarily performed the action of walking himself across the border.

And so that I think -- although it is -- is, you know, not explicitly excerpted per se or -- or with a -- a title in -- in the reasons is certainly a consideration that the trial judge engaged in, that is with respect to whether Mr. Fox had the requisite mens rea.

I just pause to -- to note that what we're dealing with here is -- is in -- in my reading of the reasons is the judge -- judge's consideration of whether Mr. Fox had the requisite mens rea, in the sense that he intended to walk across the border, not whether he had the subjective mens rea to breach the probation order, because in my respectful submission that would make completely moot the reasonable excuse defence.

So the mens rea we're talking about is whether he voluntarily and with intention performed the act that he did. Whether he breached the probation order is a matter of law for the trial judge to decide and that, in my respectful submission, is what the trial judge did. He found that the actus reus and mens rea had been proven.

He then appropriately, although not in a step-wise fashion, in the reasons for judgment considered whether Mr. Fox satisfied him that he did so, but had a reasonable excuse for doing so, which Mr. Fox said was that he had been ordered or he felt compelled to leave, and ultimately of course the -- the judge wasn't satisfied that Mr. Fox had met that burden.

So I just wanted to articulate that and -- and [indiscernible] Justice, to those excerpts and those points in my written argument.

I also wanted to take -- take you back, Justice, to -- to Zora. I know that you had mentioned it earlier and I hadn't -- I felt like I hadn't properly dealt with it, so paragraph 64, in my written argument, I -- that's page 18 -- I -- I mention that the Goleski decision was mentioned in Zora. So Zora I have excerpted at tab 10 of my book of authorities.

Now, as I mentioned earlier, the issue before the court in Zora was whether an administrative offence of breach of bail should be assessed on a subjective or objective standard, and during its analysis the court did refer to the offence of breach of probation, but when the court cited -- and the court cited Goleski with approval, and -- but -- but didn't engage of course in a consideration of -- you know, what the -- the correct mens rea was, with respect to the breach of probation offence, because that wasn't before the court.

So the court refers to Goleski, Justice, for your reference -- paragraph 37 is where Goleski is mentioned.

Judge:

Yes.

Horneland:

And the court mentions Goleski -- or cites Goleski when -- where the court is noting and really distinguishing that where there is available a defence of lawful excuse it doesn't play a role in the interpretation of the mens rea offence.

So, you know, it' s -- it's a -- in -- in my respectful submission it doesn't change and in fact I -- I would argue that the -- the citing of Goleski is -- is support for -- for the contention that it remains to be the law with respect to the offence of breach of probation.

So that leads me to -- and sorry, nothing more is said in the Zora decision that -- that in my respectful submission would be directly applicable to a case as here before Your -- Your Justice on a breach of probation, because of course they're quite different offences and there are different considerations, of course, when the leg -- the Parliament drafted the underlying provisions, importantly those being that on a breach of bail offence or allegation the accused still has the benefit of the presumption of innocence, and whereas the breach of probation the offender has obviously been convicted before --

Judge:

But in Zora --

Horneland:

-- [indiscernible] --

Judge:

-- sorry, just to be clear, Zora at paragraph -- I mean the -- the -- Zora, at paragraphs 50 and 51, specifically addresses the subjective mens rea for -- for probation -- for probation breaches.

Horneland:

Yes. I suppose what I'm trying to say, Justice, is that it wasn't -- the issue before the court wasn't the -- it wasn't calling into question or asking the court to reconsider the mens rea required for breach of probation offences, because it was a case about breach of recognizance and I -- all I'm trying to say is they are different -- they are different offences and that the court cited Goleski with respect to breach of probation offences, I would say with approval, and so I'm just simply trying to say that it is --

Judge:

Well, it -- it's -- it -- it cites Goleski for the -- for the proposition that there is a distinction that -- that the availability of a defence of reasonable excuse does not change the burden on the Crown to prove all elements of the offence, including mens rea. I mean that's what says -- paragraph 37 says.

Horneland:

Yes, and -- and I don't disagree. I just think that Zora -- Zora isn't the leading authority at this -- in my respectful submission on the reasonable excuse defence in the context of breach of probation. That's all I'm trying to say --

Judge:

Okay.

Horneland:

-- Justice, so --

Judge:

I -- in terms of -- of when the reasonable excuse -- like I'm -- I'm just trying to understand because what the -- what the Supreme Court -- what I understand the Supreme Court to be saying in Zora is that the Crown has to prove mens rea, regardless -- reasonable excuse is a separate issue.

First, the Crown proves mens rea and -- and actus reus and then reasonable ex -- excuse becomes an issue, and at paragraph 50, the court quite clearly says that the -- that it's a test of subjective mens rea.

Horneland:

Yes, and I'm not taking issue with that, Justice. I -- I'm simply saying that in this case before you --

Judge:

Yes.

Horneland:

-- that the judge did consider mens rea just in -- in my previous submissions just now, under Issue 5, I've excerpted some portions that I say demonstrate that there was a consideration of mens rea, and then properly went on to consider the reasonable excuse defence. So I don't concede that the ground in Issue 5 is made out, so far as insufficient reasons were given for mens rea.

My submission is that it was properly considered, but it was very clear from the outset that Mr. Fox wasn't disputing and it wasn't contentious in the evidence that he very much intended to attend at the office that day and that after he had his interactions with Officer Polisak he decided to go to the U.S. border and walk across it.

Now, I don't believe that that was ever contested by Mr. Fox. Of course his reasons for doing so were really the focus of the trial, and so I -- in my submission I -- I respectfully submit that that is why the -- very much the focus of the trial and the reasons were on the reasonable excuse defence.

It really -- the -- the subjective mens rea, as I've said earlier as -- and articulated as -- by the judge as being did he voluntarily and intentionally cross the border. I don't hear Mr. Fox and I don't read him in transcript to be saying that he didn't, but what he is saying is, yeah, I did so, but I'm -- I thought that there was an order or I understood the words that you are inadmissible to Canada to mean that I -- I -- I had -- I had to go to the U.S.

Horneland:

That -- that is how I understand this -- the evidence to be -- to have been in -- in very brief summary.

So that -- that is how I wish to leave it, I think, subject to any questions that you may have, Justice, with respect to the mens rea, because of course Mr. Fox has made a number of submissions about the other issues and I'm -- I'm trying to address your specific questions, Justice, but I'm -- I can continue on in other areas, or I can -- I can provide --

Judge:

Well, I -- I have reviewed and -- and will review your written submissions on -- on the other issues. I think that that's -- that was the main issue that I was hoping to get your submissions on.

Horneland:

Okay, thanks.

Before actually -- sorry, sorry, Justice, before I do leave that issue I -- there was one other point that I -- I did wish to make and that was I do urge Your Lordship or Your -- you, Justice, to -- if you haven't already to -- to review Mr. Justice Frankel's decision in Goleski and -- and the reason for that is I noticed that in the underlying summary conviction appeal on Goleski, the very same -- the argument was made as is being made here today, that the trial judge erred for not considering or -- you know, requiring Crown to prove subjective mens rea beyond a reasonable doubt.

And so that issue was thoroughly considered by the B.C. Court of Appeal and I just -- I don't think I can do better than just Justice Frankel in articulating the court's view where that is raised and ultimately, of course, in that case what Mr. Justice Frankel was -- was dealing with was where the onus lie, where reasonable excuses is laid, and I -- or raised and I think I've probably made my submissions on that.

Judge:

All right. Thank you.

Horneland:

So I -- as I said, I mean I'm mindful that Mr. Fox has -- has made the bulk of his submissions of course are with respect to Issues 2 and 3, Your Honour. I heard your comments with respect to Issue 1 and I -- I am certainly prepared to make submissions of -- on Issues 2 and 3, but my -- my plan was to take you, Justice, just through the summaries of Officer Polisak's and Mr. Fox's testimony that I have prepared and written in my book of argument, because I felt that they provide a good overview of what was quite a bit of testimony.

And I did wish to respond to a few of the points that Mr. Fox made, but I actually think that your -- you have already really touched upon, Justice, the points that I wanted to make in your exchanges with Mr. Fox, so I'm in the court's hands. I -- I can certainly take you through some brief submissions on Issues 1, 2 and 3, but if Your Lordship -- or if you're -- if you don't need me to make those submissions then I certainly won't.

Judge:

I -- I'm content to rely on your written submissions for those -- for those issues, unless there is any thing additional that you wanted to highlight, I'm -- I'm content to rely on the written submissions for those.

Horneland:

Thank you.

Judge:

All right. Thank you. Mr. Fox, did you have any reply?

Fox:

No, I didn't. Thank you.

Judge:

Thank you. All right, in which case thank you both, I will endeavour to get a decision to you as -- as expeditiously as possible.

All right. Thank you.

(VIDEOCONFERENCE CONCLUDES)

(PROCEEDINGS ADJOURNED AWAITING DECISION)

Transcriber: S. Curran