Transcript of Trial & Sentencing Proceedings (2020-08-19)

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Court of Appeal CA46979

COURT OF APPEAL

ON APPEAL FROM THE PROVINCIAL COURT OF BRITISH COLUMBIA, FROM THE JUDGMENT OF THE HONOURABLE JUDGE N. PHILLIPS, PRONOUNCED ON THE 19TH DAY OF AUGUST 2020, AND FROM THE SENTENCE PRONOUNCED ON THE 19TH DAY OF AUGUST 2020.

REGINA

RESPONDENT

v.

PATRICK HENRY FOX

APPELLANT

TRANSCRIPT

Ministry of Justice, Solicitors for the Crown (Respondent)
Criminal Justice Branch, Criminal Appeals
6th Floor, 865 Hornby Street
Vancouver, B.C. V6Z 2G3
Phone: (604) 660-1126

David Layton, Q.C.

Patrick Fox, Appellant
Appearing on his own behalf

J.C. WordAssist Ltd. (Head Office)

111 Skinner Street, Nanaimo, B.C. V9R 5E8

Phone 250-754-7822

244069-6-B

Vancouver Registry

In the Provincial Court of British Columbia

(BEFORE THE HONOURABLE ASSOCIATE CHIEF JUDGE N. PHILLIPS)

Vancouver, B.C.

August 19, 2020

REGINA

v.

PATRICK HENRY FOX

PROCEEDINGS AT TRIAL AND SENTENCE

Crown Counsel: Chris Johnson

Appearing on his own behalf: Patrick Fox

217027_TRANSCRIPT

J.C. WordAssist Ltd. (Head Office)

111 Skinner Street, Nanaimo, B.C. V9R 5E8

Phone 250-754-7822

INDEX

AUGUST 19, 2020

PROCEEDINGS AT TRIAL

JENNIFER FONTANA - for Crown
Submissions for Crown by Cnsl C. Johnson
Submissions by the Accused
Reply for Crown by Cnsl C. Johnson

PROCEEDINGS AT SENTENCE

Submissions on Sentence for Crown by Cnsl C. Johnson
Submissions on Sentence by the Accused
Reply on Sentence for Crown by Cnsl C. Johnson
Submissions on Sentence by the Accused, continuing
Reply on Sentence for Crown by Cnsl C. Johnson, continuing
Submissions on Sentence by the Accused, continuing

EXHIBITS

Vancouver, B.C.

August 19, 2020

Johnson:

Good morning, Your Honour. Chris Johnson. I'm appearing for the Provincial Crown. Calling the matter of Patrick Henry Fox.

Judge:

Thank you. Just one moment.

Sir, I take it you are Mr. Fox?

Fox:

Yes, that's correct.

Judge:

Thank you. And I understand, Mr. Fox, you do not have a lawyer; is that correct?

Fox:

That's correct.

Judge:

Thank you. And I'm going to go over some information with you in just a moment, but I'll hear briefly from the prosecutor first.

Fox:

Sure.

Judge:

Thank you.

Fox:

Before he begins --

Judge:

Yes.

Fox:

-- would either the court or Mr. Johnson have a pen I can borrow?

Judge:

That was one of the things I was going to cover off, Mr. Fox, so thank you.

Johnson:

I did have paper, if he would like that, and I could probably --

Judge:

Mr. Registrar, I think, has got a pen there. Thank you.

Johnson:

Mr. Registrar has a pen?

Fox:

I have paper. I just need a pen.

Judge:

You've got paper? We can get you a pen. Thank you.

Johnson:

Would you like --

Fox:

No. Thank you.

Judge:

Let me just confirm, Mr. Johnson, that the Crown is ready to proceed. This matter is scheduled for trial?

Johnson:

Yes, the Crown is ready to proceed. The Crown is calling one witness and Mr. Fox has been provided with disclosure.

Judge:

Good. Thank you.

Mr. Fox, I'm going to go over some information with you. You can remain seated. Some of this may be information that you've heard in advance, some of it may not, but just bear with me because I think it's important that you have a sense of what's going to happen, then, with the trial this morning.

First of all, let me just tell you I know nothing about this case. All that I've got is a one-page document called the information that just tells me what you're charged with. I have no background knowledge whatsoever about the case or about you. Just so you're clear on that. It's the evidence that I'm going to hear in the course of today's trial, that's the basis upon which I'll make my decision whether there's a finding of not guilty or guilty.

Fox:

Oh.

Judge:

Not any background knowledge or anything outside of the courtroom, just what we're going to hear today.

The prosecutor, as you've heard, is Mr. Johnson. He's sitting beside you. It is the responsibility of the prosecutor to prove the essential elements of the offences, the two offences with which you're charged, beyond a reasonable doubt. The clerk is here to assist me opening the court, swearing witnesses, dealing with the documents and marking exhibits. A sheriff is also present to ensure that everyone in the courtroom is safe.

There's added layers. Everybody's aware that we're dealing with COVID-19 protocols in the courtroom, so there may be things that we have to do a little bit more slowly, a little bit differently just to make sure that those things are attended to and if you need any assistance in that regard, you need hand wipes, gloves, a mask, anything like that, you shouldn't hesitate to let us know and particularly as we're dealing with documents. There may be some electronic. There may be paper documents. We'll just have to deal with it a little bit more mindfully than we would outside of the pandemic era.

When you're speaking to the court, you can call me Your Honour. You should stand when you're speaking while court is in session and if you forget, it's not a big deal, but that's generally the practice, Mr. Fox. You should address your comments generally to the court and not to the witness or to the other party.

And if you want to get my attention at any point in time if you want to say something, usually I'm looking fairly carefully, so if you just stand up or nod or put your hand up, that's probably all you'll need to do to catch my attention. If that doesn't work because I'm perhaps typing something important at that point in time, just perhaps make the indication again and I'll -- I'm sure I'll see you and try to respond right away.

In terms of the evidence, the prosecutor has just indicated that there will be one witness for the Crown. What I expect will happen shortly is that the prosecutor may tell me just a little bit by way of an opening about the case. That's not evidence. It's just the evidence from the witnesses on which I'll make my decision. And then Mr. Johnson, I'm assuming, will have some questions for their one witness.

At the end of that witness testifying when Mr. Johnson's asking them questions, you'll be given a chance then to ask questions in cross-examination and that's why it's important to have the paper and a pen for a number of reasons, but one is to assist you in thinking about questions for cross-examination.

When you're listening to the witness testify, you might want to make some notes. Lawyers often, if they're writing handwritten notes, will draw a line down the centre of the page, jot a few things down about what the witness is saying on one side and the things on the other side that you might want to follow up.

Just by way of a hypothetical example, if a witness says, you know, the day -- say this is a car accident case. The day of the car accident was February 28th and it was snowing heavily, but you remember that it wasn't snowing at all. In fact, it was a sunny, dry day. You'll want to make just a note, "Witness says it was snowing". Go back and ask some questions about this. Suggest it wasn't snowing and how could the person possibly remember over the passage of time.

So, little things just to prompt you so when I ask you if you have any questions for cross-examination, it makes it a little bit easier because you've got a bit of a note to yourself. If that doesn't work and you need some time just to think about it for a second or longer in terms of the questions that you want to ask the witness, I'll give you that opportunity, but it's sometimes a bit helpful also to have a bit of a note to that effect. So, keep that in mind.

Notes are also helpful because at the end of the case you'll be given a chance, as will the prosecutor, to make closing submissions and sometimes those notes are really helpful to refer to in terms of what the evidence that I've heard was, things that you want to highlight, and I'll come back to that before we get to that stage a bit more.

The microphones in the courtroom for the most part, Mr. Fox, do not amplify, they just record. We've got a digital recording system. So, from time to time I may be asking somebody to speak up a bit louder, and if you can't hear somebody, don't hesitate to say, "I'm not able to hear the person", because it's critical that everybody be able to hear.

Fox:

Okay.

Judge:

Similarly, if a person's speaking a little bit too fast because we're trying to take notes, then please don't hesitate -- if you're finding it too fast, probably everybody else is as well, so don't hesitate to say something. And I may just ask a person, including yourself perhaps, to slow down. It's not at all to be critical. It's so that I can make sure I'm making a note of what's going on.

My notes are really just to assist me. They're not the recording device. There's that separate recording device and I may need to consult it, I may not, but I do try to take some computer notes of what's going on in terms of the witness testimony.

Just in terms of court sitting hours, Mr. Fox, we -- the morning sessions goes to 12:30 roughly. Then we'll take a lunch break and start up again at 2 o'clock and then carry on for the afternoon. We finish up for the day usually about 4:30.

Let me just say, Mr. Fox, you do not need to decide now whether you will testify or whether you will call other witnesses on your behalf to testify or whether you want to do both, and you probably shouldn't tell me at this point in time. It's not necessary for you to do that and there may be a strategic reason not to.

If you did intend to call other witnesses, you would need to have them available today unless something had gone awry, despite your efforts they weren't here, and then you can tell me what's happened and we can try to sort it out. Let me just ask you, Mr. Fox, without you having to say right now whether you intend to call evidence on your own behalf, did you expect to have other witnesses come and testify about the event on your behalf today or not?

Fox:

I do not.

Judge:

Okay, thank you. So, I won't say anything more about that because that doesn't sound like that's going to be an issue. Mr. Fox, I'm assuming at an earlier stage in the process you were probably advised that you did have the right to have a lawyer represent you?

Fox:

Yes.

Judge:

You're content, are you, today to proceed without a lawyer assisting you; is that correct?

Fox:

Yes.

Judge:

Okay, thank you. If over the course of today's trial something comes up that you perhaps were not anticipating that you would like to speak to a lawyer, it may be possible to speak to an out-of-custody or in-custody duty counsel lawyer in the building today who's usually available. Not always, but you can keep that in the back of your mind.

Mr. Johnson mentioned a few moments ago that he has provided, or the Crown has provided its disclosure of the case against you. I take it you got that. You've had a chance to look that over, have you?

Fox:

I have, yes.

Judge:

Do you have it with you today should you need to refer to it?

Fox:

It was provided to me in electronic format on a laptop --

Judge:

Oh, okay.

Fox:

-- and I'm not able to bring the laptop from the jail to the court. Now, in the other matter that I was representing myself on, the Crown would usually bring another laptop to the court that had --

Judge:

Okay.

Fox:

-- the same disclosure material on it. I was going to ask --

Judge:

Okay.

Fox:

-- Mr. Johnson about that, because I may need to refer to it while --

Judge:

Okay.

Fox:

-- I cross-examine the witness.

Judge:

Thank you. And I don't know, Mr. Johnson, whether you have paper that might be of assistance or --

Johnson:

I -- I'm sure I could arrange for that.

Judge:

Okay.

Johnson:

I hadn't -- it hadn't occurred to me about the laptop issue, but why don't -- if we proceed and then if Mr. Fox wants anything, I will do my best to provide it.

Judge:

Good. Okay, thank you. We can probably find a workaround, I think then, Mr. Fox, and I'll just invite you right now, as that comes up, let me know --

Fox:

Okay.

Judge:

-- and we'll take the steps necessary to sort that out. Mr. Fox, just let me tell you a little bit more about my role. In terms of the process, as I said, I know nothing about this case except the two counts that you're charged with and only in the barest form. So, my job is really that of a referee. I'm here to make sure the process is fair, that there's a fair trial, that the rules are followed.

Part of that responsibility on my part is to make sure that you have a fair trial so that the process is fair. I can't enter the fray and become your lawyer, obviously. That's not appropriate, but I want to apply the legal principles in a fair manner.

I don't have any issue -- from to time if you have questions about the process, I'd rather you just ask them and we'll do our best to sort them out. If the question is one that I can't answer because it's asking me as a judge to give you legal advice, I'll let you know, but I'd rather you ask the question.

There's no inappropriate question. I may simply be able to say I can't answer it, but I'm going to do my best. So, if things come up, don't wait. Get my attention and we'll try to sort it out. It's always better to deal with it as soon as it arises than to let things kind of boil over until it becomes a problem.

I do have an obligation to control the flow of the case and if at some point I think, well, a question is inappropriate, I'll let you know, but that's unlikely in my experience.

I made mention already that sometimes it's hard to hear witnesses, sometimes people speak too fast. Sometimes it's simply a question of the way something was worded being difficult to understand. If that's the case, it's appropriate for me as the judge to say, "Can you rephrase the question?" or either you or Mr. Johnson just are not clear about the question or didn't think it was worded to the point where the witness could really understand it, not perhaps intentionally, although that's possible, but just because the wording is a bit awkward. If you let me know, we'll try to sort that out.

Nobody's trying to use trickery here. It's important for me to get the evidence and make sure that the witness understands the question as it gets -- as it gets asked. When you're cross-examining the witness, Mr. Fox, there may be things that I think I'll want to ask the witness about and I'll keep a mental note of that. You may ask them in cross-examination. If you finish your cross-examination and there is an area that I think should be explored, in fairness to you and to the process I may ask that. It's not a criticism of you. As a judge I need to perhaps do that. It may or may not occur.

Fox:

Mm-hmm.

Judge:

Mr. Registrar, can I just confirm that not guilty pleas have been recorded on both Counts 1 and 2 on the information?

Clerk:

Your Honour, I don't have an indication on the record --

Judge:

Okay, thank you.

Clerk:

-- [indiscernible/overlapping speakers].

Judge:

Mr. Fox, with that in mind I'm just going to in a formal sense read you both counts on the information and just confirm after I've done that that you understand them and just ask you how you plead. So, Count 1 on this information is an allegation that between March 7th and March 21st, 2019, at Vancouver, B.C., while bound by a probation order made by the Honourable Madam Justice Holmes in the Supreme Court of British Columbia on November 10th, 2017, did without reasonable excuse fail to comply with such order by making publicly available the website, www.desicapuano.com, contrary to s. 733.1 of the Crimin/al Code. Do you understand that charge, Mr. Fox?

Fox:

I do.

Judge:

And with respect to that charge, how do you plead, guilty or not guilty?

Fox:

Not guilty.

Judge:

Thank you. And with respect to Count 2, same process to follow, Mr. Fox. A very similar allegation. Between the same days, March 7th and 21st, 2019, in Vancouver, B.C. the same order of Madam Justice Holmes,of the Supreme Court from November 10th, 2017, another allegation of breach of probation by failing to -- excuse me, without reasonable excuse failing to comply with such an order by accessing the internet or any computer or cellular network. Again, Mr. Fox, do you understand that charge?

Fox:

I do.

Judge:

And with respect to that count, how do you plead, guilty or not guilty?

Fox:

Not guilty.

Judge:

Thank you. So, not guilty pleas formally recorded. Mr. Johnson, I see the Crown's proceeding by indictment on this matter as well. Is that your --

Johnson:

Yes.

Judge:

-- understanding? Thank you.

Johnson:

But it is an absolute jurisdiction --

Judge:

Right. Thank you.

So, Mr. Fox, just going back to the two charges in front of the court, then, you can only be convicted of a charge if the Crown proves each essential element of the charge against you beyond a reasonable doubt. You're entitled to the presumption of innocence. The essential elements of the offences are set out in that information. For example: your identity; the jurisdiction, Vancouver, British Columbia; the existence of that probation order; proof that you were bound by it; that there was a breach of it and no reasonable excuse for the breach.

We'll go over that in a bit more detail later on, but the two counts are very similar in terms of those aspects that the Crown has to prove in the case against you.

The phrase "reasonable doubt" has sparked a tremendous amount of legal analysis, but let me just say right now it does not require proof to an absolute certainty or beyond any doubt, nor is it an imaginary or frivolous doubt, but it does involve a significant level of proof far beyond the balance of probabilities which is often sometimes -- or often referred to as more likely than not which we apply in civil cases.

And that burden on the Crown is not to be based upon sympathy or prejudice. Rather, it's to be based on reason and common sense. It's logically derived from the evidence I'm going to hear in this trial or the absence of evidence. And as I said earlier, I'll make my decision on the basis of the evidence I hear in this case and that is primarily the witnesses as they testify and any documents or exhibits that are introduced and admitted in court.

If you do call evidence later on and you wish to submit a document or something in addition to your testimony, you can bring that up at the time and we'll deal with it and go through the process. You'll see, perhaps, the prosecutor doing that earlier.

Mr. Fox, a couple more things about cross-examination. You've already heard the prosecutor say he's going to call one witness and you'll be given a chance to ask that witness things in cross-examination. It's important to bear in mind that the cross-examination has to be relevant. It shouldn't be argumentative, but it can certainly be probing in terms of the issues that are necessary for me to decide.

If you are contemplating testifying in your defence later on in the trial and you're intending to say something about your defence that the witness may not have spoken about when the prosecutor asked the witness questions or when you cross-examine the witness questions, you'll want to think about whether you need to give that witness a chance to comment.

For example, and I'll try to be a bit more specific here, if -- and to go back to this car accident example, so it's not related to this dispute at all. If you're absolutely certain that it was sunny that day and the witness said it was snowing and it's important to the case -- say, for example, the issue might be whether the roads were slippery at the time or there was good visibility.

And you're going to call, perhaps, just to give you a real hypothetical, somebody from Environment Canada who will have records to say it wasn't snowing that day, it was in fact a warm day on February 28th and sunny. You should give the witness in cross-examination a chance to comment on that if it's critical to your case.

For example, you can say to the witness, "You told the court in your direct evidence that it was snowing that day. I suggest to you that it was in fact a sunny day". And the witness may say, "I disagree". You might want to go at it a bit more and say, "And I'm going to produce evidence to show that it was in fact a remarkable early spring day in Vancouver".

Give the person one more time a chance to respond, because when you testify and say something different, that will allow me to consider your evidence in a much more kind of whole way if the person was given a chance to respond. There isn't a need necessarily to do that on minor matters, but if it's something that really is critical to your evidence if you later call evidence, you should keep that in mind otherwise the prosecutor may say, "The witness wasn't given a chance to comment on that. You should take what Mr. Fox said perhaps with -- give it less weight". So, keep that in mind.

Fox:

Okay.

Judge:

Just bear with me again for a moment.

In terms of cross-examination, that example I just gave you really goes to the substance of the witness's testimony, but there may be things, Mr. Fox, that are not so much about the substance of the person's testimony. Say, for example, a witness is a little bit kind of casual or flippant about their evidence. You could perhaps not touch that in your cross-examination and simply ask me in your closing argument to -- just to say to me, "Well, Your Honour shouldn't perhaps give that witness much weight because they were not prepared, they were pretty casual, didn't take the process seriously".

So, there may be other things that don't necessarily go to the substance of the testimony that you will want to keep in mind in your closing arguments and as you're cross-examining a witness. It may be that the witness testifies about something and you think, well, how can he possibly remember that? It happened, you know, 18 months ago or 24 months ago. You might want to ask the witness in cross-examination about that. "Did you make any notes? Have you refreshed your memory from notes? How can you possibly recall that?"

Keep in mind you might get an answer you don't like, so you may not want to ask the question. You know whether you've got a witness statement from somebody, so there may be some basis upon which you want to go down that path, but it's not just the substance necessarily of a witness's testimony.

It may be about their ability to recall, how accurate they are, and how truthful they are, and those can be very different things. A witness can be trying very hard to be truthful with the court, but actually have a very poor memory of something. So, not necessarily trying to mislead the court, but their basis for being able to say what they're saying today may be based upon, you know, passage of time, failing memory, or they simply didn't record anything at the time in terms of helping them prepare for court and being confident in their testimony.

Fox:

Okay.

Judge:

And a witness may also have a bias. It might be that a person is involved, say for example, in a corporate dispute or, say for example, that car accident case might be a better one to stay with. Perhaps it's an ICBC adjuster. They might have an interest in the outcome of the case financially. Now, they may still be telling the truth, but you might want to explore whether that is causing them to slant their evidence a bit. And you can make that argument in your closing as well, too.

And just to go back to the closing, then. At the end of the Crown's case after their single witness has testified and you've been given a chance to cross-examine that person, Mr. Fox, I'm then going to ask you whether you want to call evidence and it's only at that point in time that you have to then make a decision.

Think about when you're coming to that decision whether the Crown has met the burden on them of proving the case beyond a reasonable doubt. If you think that they have not done something to prove each element of the offence against you -- say, for example, nobody told the court where this incident occurred and that sometimes happens. People forget to say it happened in Kamloops or it happened in Kelowna or whatever.

You may ask the court to come to a verdict -- a directed verdict without having to choose to call evidence. That's probably unlikely, but it is something to keep in mind. There are some technical things that flow from that depending on the type of verdict that you're asking me to draw and I can come back to that later if it arises as to whether or not you can still testify once you've made that decision. Sometimes it precludes you from deciding to testify later on, but as I said, we can come back to that.

And just one last thing there, Mr. Fox, before we start hearing evidence. As I've said, both sides will be given an opportunity to make closing arguments at the end. You can't tell me anything new in your closing argument, nor can Mr. Johnson. It has to be based upon the evidence that I've heard in the course of the hearing.

So, if somebody starts to add something, then I'll simply say, "You can't tell me that. There's no evidence. You have to stick to the evidence in terms" -- and that can be from you, it can be from other witnesses, it can be just based upon the Crown's case.

Fox:

Right.

Judge:

And I have to make a separate verdict, just so it's really clear here, on each of the counts.

There may be other things, some other legal issues that come up, Mr. Fox, over the course of the trial in which case I'll do my best just to pause, explain the legal issue behind them, perhaps I'll need to make a ruling on the admissibility of evidence and the like, and then we'll carry on.

One -- sorry, one point on that is oftentimes there will be evidence in front of the court that is hearsay. What that means is that a witness is telling me something that either they've been told by another person or something that's happened out of the courtroom. So, they're relying on something that's kind of second-hand or third party. Generally speaking, that's not admissible. It has to be the witness's own personal knowledge about the event.

There are some exceptions to that. There may be a case here where a witness will testify about something that is second-hand knowledge or happened out of the courtroom, but they're just doing it to help me understand the flow of the story, not to prove the truthfulness of that particular part of their testimony.

So, it's admissible for that purpose, just to follow the story, the narrative as we call it, but I'm not going to rely on it as to whether it's truthful or not in terms of assessing and coming up with my verdict on each of the counts. I will do my best to catch that if somebody's saying something they shouldn't that's inadmissible hearsay and either you or Mr. Johnson may say, "Well, I don't want you to rely on it for its truthfulness. I'm leading it so it can help understand the story", in which case it's probably admissible for that limited purpose, and there are some exceptions to that in terms of paperwork. We can get into that if it -- if and when it arises.

Mr. Fox, that's a lot to absorb I appreciate at the outset. Do you have any questions about what I've covered with you in the last 15 minutes or so?

Fox:

No, I don't. Thank you. I'm quite clear on it.

Judge:

Okay. Do you have any questions separate from that?

Fox:

That I do.

Judge:

Okay.

Fox:

Usually there's a jug of water out here. I see there isn't now.

Judge:

And that's because of the pandemic and we can probably get a bottle of water provided.

Fox:

That would be great if we could do that. It's just my mouth is a little dry.

Judge:

Yes. It is dry in here because we turned up the circulation, I think. I don't know, Mr. Registrar, if that is something we could get addressed?

Clerk:

I'll message my supervisor --

Judge:

Thank you.

Clerk:

-- [indiscernible/overlapping speakers].

Fox:

Thank you.

Judge:

Anything else, Mr. Fox?

Fox:

No.

Judge:

Mr. Johnson, anything else from your perspective, then, before we start the evidence for the Crown?

Johnson:

Perhaps two bottles of water.

Judge:

Two bottles of water? Thank you.

And let me just ask, Mr. Johnson, in terms of the document disclosure, did you want to try to sort that out now before we get started if we stood down for a moment, or would it be better --

Johnson:

I think it would be better if -- Mr. Fox, who I've dealt with on a number of occasions, is a very bright fellow and I think there's no dispute about that. I think he likely knows the evidence quite well. But again, having said that, if there is anything that he decides that he wants a paper copy of, I think then I could make that inquiry.

Judge:

Good. So -- and, Mr. Fox, we will take a morning break at some point as well and we can stand down also for that sharing of paperwork to occur. So, let me know or let Mr. Johnson know if things are coming up and you need to access that paperwork, and particularly at the morning break perhaps the sheriff can just -- when I stand down, he'll just give you a moment just to convey to Mr. Johnson if there are items that you'd like to see and he can perhaps make arrangements over the break to make sure you got those.

Fox:

Sure.

Judge:

And if you need a bit of time to review them, we'll make sure that happens as well. Thank you.

Fox:

Thank you.

Judge:

Case for the Crown, then. Thank you.

Johnson:

Thank you, Your Honour. So, the first order of business is that there was a -- Mr. Fox appeared in Supreme Court on other matters, was convicted of some of those matters by Associate Chief Justice Holmes, and was sentenced on November 10th of 2017 to some jail and three years of probation.

So, the first thing I'm required to do is obviously prove that Mr. Fox is on probation. I believe that he admits that, but I'm not a hundred percent certain on that. And so, what I've done is I've filed with Mr. Clerk the record of proceedings from Supreme Court that would indicate that, and particularly page 6 of that document. And I do also have a copy of the reasons for sentencing of Madam Justice Holmes should that be necessary, and I do have a copy for Mr. Fox if he wants. I suspect he probably has that.

Fox:

I have that here.

Judge:

Okay, thank you.

Fox:

Will I need to refer to it in these proceedings, though? Will you be referring to it?

Johnson:

I won't be referring to it except -- perhaps you could assist here. What I'm -- in the process of establishing that you were, in fact on probation --

Fox:

Mm-hmm.

Johnson:

-- at the time and I think about three or four appearances ago you indicated that you agree with that, that you were on probation. I'm required to prove that. So, if you admit it, then I don't need these reasons.

Fox:

I can admit that I was on probation at the time specified in the charges in March of 2019.

Judge:

Thank you.

Johnson:

Thank you. Given that, then, Your Honour, I will not file the reasons, but you do have before you the record of proceedings.

Judge:

Yes. Thank you.

Johnson:

And that having taken place, then, I'm prepared to call the only witness that the Crown is calling, which is Detective Constable Jennifer Fontana.

Judge:

Thank you.

Johnson:

I could just step out and --

Clerk:

Sure.

Judge:

Certainly.

Clerk:

Thank you.

Judge:

Thank you.

Johnson:

I gather the paging system isn't working.

Judge:

Okay, thank you.

JENNIFER FONTANA

a witness called for the Crown, affirmed.

Clerk:

Please state your name for the record and spell your last name and your badge number.

Fontana:

Yes. It's Jennifer Fontana, F-o-n-t-a-n-a, and my badge number is 2671.

Judge:

Thank you.

EXAMINATION IN CHIEF BY CNSL C. JOHNSON:

Johnson:

You are detective constable; is that correct?

Fontana:

Yes, Your Honour.

Johnson:

And you've been with the Vancouver Police Department for the past 12 years?

Fontana:

Yes.

Johnson:

And I gather that you're currently in the Domestic Violence and Criminal Harassment Unit of the Vancouver Police Department?

Fontana:

Yes, Your Honour.

Johnson:

And how long have you been in that unit?

Fontana:

I've been in that unit for the past two and a half years, Your Honour.

Johnson:

Now, Detective Constable Fontana, do you know a person named Patrick Henry Fox?

Fontana:

I do.

Johnson:

And could you tell the court, please, how it is that you came to know Patrick Henry Fox?

Fontana:

I became aware of Mr. Fox when I was assigned a criminal harassment investigation in March of 2019.

Johnson:

And so, that's when you first heard of Mr. Fox. Did you ever meet him personally?

Fontana:

I did, yes. I interviewed him June 24th, 2019.

Johnson:

And so, would it be fair to say that you've known Mr. Fox, then, for -- since June of 2019?

Fontana:

Yes, Your Honour.

Johnson:

And you would be able to identify Mr. Fox, would you?

Fontana:

I would, Your Honour.

Johnson:

Okay. Could you look around the courtroom and indicate to Her Honour whether Mr. Fox is present?

Fontana:

He is, Your Honour.

Johnson:

Thank you. Could you please point him out?

Fontana:

Yeah, he's sitting in the red shirt there, Your Honour.

Judge:

The indication noted for the record.

Johnson:

Now, you indicated that you were assigned a criminal harassment investigation in this matter; is that correct?

Fontana:

Correct.

Johnson:

And was that in relation to a specific website?

Fontana:

It was. It was the www.desicapuano.com, Your Honour.

Johnson:

And is that d-e-s-i-c-a-p-u-a-n-o?

Fontana:

Correct.

Johnson:

And are you aware if there is a person by the name of Desiree Capuano?

Fontana:

Yes, Your Honour, that is the ex-spouse of Mr. Fox.

Johnson:

And have you met or spoken to Ms. Capuano?

Fontana:

I've never met her in person, but I have spoken with her on the phone.

Johnson:

Now, you are, I gather, aware that Mr. Fox was sentenced in 2017 and as a result of that is on probation out of a Supreme Court order?

Fontana:

Yes, Your Honour.

Johnson:

And you're aware that there are conditions of that order that bring you here to court today?

Fontana:

Yes.

Johnson:

And are you able to tell Her Honour what those conditions are?

Fontana:

Yes. They are making public the website www.desicapuano.com and also accessing the internet.

Johnson:

Now, you indicated that you were assigned to an investigation in March of 2019. Were you the person responsible for investigating whether Mr. Fox committed breaches of this probation order?

Fontana:

I was, Your Honour.

Johnson:

And could you tell the court what you did first in that regard with respect to your investigation?

Fontana:

Yes. The first step I took was to see if there actually was a website by the name of www.desicapuano.com that was made public, and I went onto our internet at the police station and I was able to, through a Google search, find it quite easily.

Johnson:

All right. And you were able to access that website?

Fontana:

I was, Your Honour.

Johnson:

And are you able to tell us the date on which you did that?

Fontana:

March 18th, 2019, Your Honour.

Johnson:

And have you subsequently followed up on that to see whether that website is still in existence?

Fontana:

I have, Your Honour. I did it quite frequently throughout the investigation and I also went on there this morning before I came here to see if it was still active, and it was.

Johnson:

And when you say active, it would be in your experience active and available for the public to view?

Fontana:

Correct, Your Honour.

Johnson:

Now, with respect to Mr. Fox's sentence in 2017, you're aware that some of it involved jail and some of it involved probation?

Fontana:

Correct, Your Honour.

Johnson:

And you're aware that at some point in time he was released from jail and then was on probation?

Fontana:

Correct.

Johnson:

By the time you dealt with Mr. Fox in June of 2019, where was he located?

Fontana:

He was at the North Fraser Pretrial Centre, Your Honour.

Johnson:

And that was with respect to other matters that are not before the court; is that correct?

Fontana:

Correct.

Johnson:

Now, with respect to the website www.desicapuano.com, you've viewed it, have you?

Fontana:

I have, Your Honour.

Johnson:

And are you able to just very briefly tell us the gist of that website?

Fontana:

Yes. There's quite a bit of information on there. Most of it is very -- is about Ms. Capuano. It states her address, her phone number, her email, and depicts her in --

Judge:

Sorry, just one moment.

Fontana:

Yes. My apologies.

Judge:

Thank you. Go ahead.

Fontana:

It depicts her in a very negative light. There's just very negative postings about her and her personal life, including the men that she dates, arrest reports of those men, her own arrest reports. There's pictures of her home, the inside, the outside, and there's also -- all of the information or documents from the trial in 2017 have all been added on there, including audio recordings of interviews, audio recordings of the trial itself, certain testimonies, as well as all the police reports, notes of police officers. It's quite an overwhelming amount of information that's on there, Your Honour.

Johnson:

To your knowledge has that website ever been shut down during the period of time that you've been involved with this matter?

Fontana:

It was, Your Honour. I was able to go through the hosting provider GoDaddy and I was able to have the website shut down for 90 days. Unfortunately, that's the longest period of time they will shut it down without a judicial authorization and they will not accept a Canadian judicial authorization. They require an American one. So, I have not been able to obtain one of those yet.

Johnson:

Now, Detective Constable Fontana, did you ever receive mail from Mr. Fox?

Fontana:

I did, Your Honour.

Johnson:

And in particular, did you receive a letter from Mr. Fox that was dated June the 6th of --

Fontana:

Yes, I did.

Johnson:

-- 2019?

Fontana:

Yes, I did.

Johnson:

And that is a four-page handwritten letter?

Fontana:

Correct.

Johnson:

And I can provide Mr. Fox with a copy of it.

Fox:

Thank you.

Johnson:

That letter you've brought to court, have you?

Fontana:

I did, Your Honour.

Johnson:

And it's dated June the 6th of 2019 and it's addressed to you; is that correct?

Fontana:

It is, Your Honour.

Johnson:

And it has a subject heading which says, "Investigation into Patrick Fox, Desicapuano.com website"; is that correct?

Fontana:

Yes, Your Honour.

Fox:

Thank you.

Johnson:

And your belief is that Mr. Fox authored that letter --

Fox:

Oh, thank you.

Johnson:

Authored that letter and had it mailed to you from the jail in Port Coquitlam; is that correct?

Fontana:

Yes, Your Honour.

Johnson:

With respect to that letter, I'm going to ask you another question which is did you ever go to see Mr. Fox to speak to him?

Fontana:

I did, yes, June -- I believe it was June 24th, 2019.

Johnson:

And again, that was at the jail in Port Coquitlam; is that right?

Fontana:

Correct.

Johnson:

But one other question before I move on to that. When you accessed the website, www.desicapuano.com, you indicated that you did that from the police station; is that correct?

Fontana:

Correct.

Johnson:

And that was the police station -- the Vancouver police station?

Fontana:

Correct, yes. The station located at 3585 Graveley Street in Vancouver.

Johnson:

That's in the city of Vancouver, province of British Columbia?

Fontana:

It is.

Johnson:

Now, sorry, going back to meeting with Mr. Fox, you indicated that you did so on June the 24th of 2019?

Fontana:

Yes.

Johnson:

And on that occasion did you take a letter, the letter that you have with you, dated June the 6th?

Fontana:

I did, Your Honour.

Johnson:

And you did speak to Mr. Fox?

Fontana:

Yes, I did.

Johnson:

And did you advise him --

Johnson:

And, Your Honour, I don't know whether Mr. Fox takes issue. I'm not leading a statement from him, but I am leading some conversation, and so I can go through the formalities of that.

Judge:

Thank you. I think perhaps we should and let me just take a moment just to explain this a bit further to Mr. Fox. Give me one moment.

Johnson:

I should say, Your Honour, if it helps, what I would seek to adduce from the witness is that she met with Mr. Fox, he admitted that he authored the letter and, furthermore, admitted that he authored the website www.desicapuano.com.

Judge:

Okay. Thank you.

Mr. Fox, when the prosecution seeks to lead statements in any form that are made by the person who is charged and in front of the court, you in this instance, typically speaking a judge will declare a trial within a trial, you may have heard the phrase voir dire, so that the court can assess the admissibility of the statement.

And there are a number of things that the court looks at, but primarily to determine whether the statement was voluntary and whether it complies with certain Charter rights that a person is entitled to.

If the Crown wants to use some of the statements that you made to Constable Fontana when she met with you back on June 24th, 2019, I have to assess their admissibility on that basis. The Crown has to prove those things beyond a reasonable doubt. And just to be clear here, voluntary in the sense means that the police did not make any threats, suggesting things would go worse if you did not make a statement, or promise that things would go better if you did make a statement.

In addition, the Crown must prove that you knew what you were saying when you made the statements, so your mind was aware of what was going on, essentially, and as I said, without any of your Charter rights being breached.

Now, you may not take issue with this. It may be best that we declare a voir dire. Mr. Johnson can ask the officer those questions. If you have some questions that you would like to ask in that mini trial of the officer, you can about the issues of voluntariness and any Charter issues that might arise.

For example, you might want to ask whether you were told that you could speak with a lawyer or have the availability to speak with somebody from Legal Aid. You could be asking questions or you could ask questions about whether there was some hope that things would go better that was held out to you if you spoke with the officer, or some threat made to you if you didn't speak to the officer.

If, however, you don't take issue with any of those things, if you agree there were no threats, promises or inducements made and that there was no disregard or violation of your Charter rights, it may not be necessary to hold a voir dire. Lawyers often say on behalf of their client, "It's not necessary to hold a voir dire, I don't take any issue with the fact that it was my client who spoke with the officer, that there was no issue with respect to the voluntariness of their conversation in the statement taken, and no issue with respect to any Charter rights being breached".

But because you don't have a lawyer, it might be prudent, Mr. Fox, for me to declare that mini trial and we can briefly hear the officer's testimony. I don't know if you have any thoughts on what you would like to see happen at this point in time, but go ahead if you do.

Fox:

Well, based on what Mr. Johnson had said, that he's seeking from this -- I would have no issue with those --

Judge:

Okay.

Fox:

-- with those issues. Sorry, I don't want to use the word "issue" twice in that sentence. I would have no issue with the information that he's seeking.

Judge:

Okay. With that in mind, then, I'd be satisfied we don't need to enter into a voir dire having explained that process to Mr. Fox --

Fox:

Thank you.

Judge:

-- and his comment to the court just now. So, go ahead now, Mr. Johnson. You can carry on.

Johnson:

Thank you, Your Honour.

Detective Constable Fontana, when you met with Mr. Fox on June the 24th of 2019, did you advise him that he had a right to speak to counsel before he talked to you?

Fontana:

I did, Your Honour.

Johnson:

And did he have a response to that?

Fontana:

He declined, Your Honour.

Johnson:

And did he indicate whether he wished to talk to you?

Fontana:

He did. He stated that he would be willing to speak with me.

Johnson:

And did you advise him that he wasn't required to speak to you?

Fontana:

I did, Your Honour.

Johnson:

And did you have a discussion with him about the conversation being recorded?

Fontana:

I did, Your Honour. He actually asked me if our conversation would be recorded, and I advised him that it would, and he was pleased by that.

Johnson:

And just very briefly, did you promise him anything in return for talking to you?

Fontana:

I did not, Your Honour.

Johnson:

Did you offer him any favours?

Fontana:

No, I did not.

Johnson:

Did you threaten him in any way?

Fontana:

Not at all, Your Honour.

Johnson:

How long did you talk to Mr. Fox for on this occasion?

Fontana:

I believe it was about 20 or 25 minutes, Your Honour.

Johnson:

And did you produce the letter that I've asked you about to Mr. Fox?

Fontana:

I did.

Johnson:

And you've brought a copy of that letter with you?

Fontana:

Yes, Your Honour.

Johnson:

Your Honour, I'm seeking to file that letter as Exhibit 1 on this trial and I've provided Mr. Fox with a copy of it.

Judge:

Mr. Fox, again just because there are legal steps here to be followed, the court has to be satisfied that anytime an exhibit, paperwork or otherwise is asked to be marked as an exhibit number, because then it becomes something I can consider in reaching my verdict on each one of the counts, I've got to be satisfied that the document in this case is legally admissible.

So, the Crown has to prove here -- there are a number of things, that this witness has some personal knowledge of it because she didn't author it, that's clear, who authored it, how she knows that, that it's relevant to the case at hand. You're entitled to object to its admissibility now and tell me why you think it's not admissible and then I'll rule on that.

If I rule against you, then I'll mark it as an exhibit. If you agree it should be an exhibit, that's fine, we don't need to go through this process, but you're entitled to tell me that you don't agree and why and I'll sort out the legal issue. If I do, even after the legal issue is argued, mark it as an exhibit, that doesn't end the matter because in the closing argument it is still open to both sides to ask the court to use that letter for certain purposes.

And Mr. Johnson may say it's important in terms of proving the Crown's case against you and here's why, and perhaps draw to my attention certain parts of that letter. You may say, "Well, that interpretation isn't clear on the letter". Even though it perhaps has been marked as an exhibit and it's been ruled to be admissible, you may say it doesn't really help the Crown and here's why because it's -- you know, maybe it's ambivalent or equivocal, all those things.

So, what we talk about is threshold admissibility and ultimate reliability at the end of the case. So, those are -- those are different things. One doesn't stop you at the end of the day from arguing what I should make of the letter is essentially what I'm saying. With that in mind, Mr. Fox, again the next question is do you have any issue with the court marking that letter as Exhibit 1 in this trial, as an admissible piece of evidence?

Fox:

I do not.

Judge:

Okay, thank you. Exhibit 1.

Johnson:

Thank you.

Fontana:

Do you want it out of the plastic or in the plastic?

Clerk:

You can keep it in the plastic.

Fontana:

Okay. Would Your Honour like to see it?

Judge:

After you've marked it is fine. Thank you.

EXHIBIT 1: Handwritten letter from Patrick Fox to Detective Constable Fontana dated June 6, 2019, 4 pages

Johnson:

With respect to the letter that's now been marked as Exhibit 1, you've read that letter?

Fontana:

I have, Your Honour.

Johnson:

And did that letter contain any subject matter when you read it that related to the charges that are here before the court today?

Fontana:

It did, Your Honour.

Johnson:

And when you reviewed that letter, did it -- what could you tell us about what it said regarding the website www.desicapuano.com?

Fontana:

Your Honour, in the letter Mr. Fox states that he is the creator of the website and that he demands to be charged with criminal harassment because if he was charged with running the website in 2017 and it was deemed criminal harassment, that it should also be deemed criminal harassment in 2020.

Johnson:

And you, I gather -- I think you've already indicated this, but you showed that letter to Mr. Fox when you visited him on June the 24th?

Fontana:

Yes, Your Honour.

Johnson:

And did he indicate anything to you about whether he was the author of that letter?

Fontana:

He actually asked me when I got there if I had received his letter and I told him I had and I gave him the letter that I had received and allowed him to review it before speaking with me, and he reviewed it and said -- while he was reading it commented, "Oh, yes", and then handed the letter back to me.

Johnson:

And with respect to your discussion with Mr. Fox generally on June the 24th, 2019, did he indicate to you whether he was, in fact, operating the website www.desicapuano.com?

Fontana:

Yes, Your Honour. I asked him if he was running it and had created it, and he stated that he had.

Johnson:

And did he provide you with any explanation as to why he had not shut the website down?

Fontana:

Sorry, I don't understand.

Johnson:

Mr. Fox, you indicated, was in jail when you spoke to him.

Fontana:

Correct.

Johnson:

And you indicated that previous to being in jail he'd been out of jail?

Fontana:

Correct.

Johnson:

And did you ask him or engage in any discussion with him as to why, when he was out of jail, he did not shut the website down as required?

Fontana:

I didn't speak with him about that, Your Honour.

Johnson:

I gather that -- from what you indicated that when you did speak to Mr. Fox on June the 24th of 2019, he indicated that he -- or perhaps I'll ask this in a more open question. Did he indicate to you whether he intended to shut that website down?

Fontana:

Your Honour, it is my belief that he -- Mr. Fox has no intention of shutting the website down and I was told that if he were to be released again, he will make sure it continues to operate.

Johnson:

Thank you. Those are all the questions I have of this witness, Your Honour. Actually, perhaps I could just ask one last question just to cover something off.

Johnson:

In your experience, in order to access the website or to operate the website one has to go onto the internet in order to do that; is that correct?

Fontana:

I'm no technology expert, but I do believe that that would be a requirement. To have it up and running on the internet would be to access the internet and the maintenance of the website I believe is also done on the internet.

Johnson:

And so, to add materials, for example, to a website such as some of the court documents that you've referred to, one would have to access the internet?

Fontana:

I believe so, Your Honour.

Johnson:

Thank you.

Judge:

Thank you. Just give me one moment, please.

Johnson:

Sorry, Your Honour, I'm just inquiring with Mr. Fox if there's anything else that he needs --

Judge:

Yes.

Johnson:

-- [indiscernible/overlapping speakers].

Judge:

And I actually intended to do the same thing, so go ahead, Mr. Johnson. Thank you.

Fox:

I was actually going to ask if it's getting close to the time for the morning break, perhaps we should do that --

Judge:

It is.

Fox:

-- before I begin and maybe I can have a couple of minutes to speak with Mr. Johnson.

Judge:

I think that makes sense.

Johnson:

Yes.

Judge:

So, let's just take a slightly longer break, then. So, if there's any paperwork that needs to be printed off and passed along, you can have a few minutes to review it. Let's reconvene, then, at quarter after 11. Thank you.

Clerk:

Order in court. All rise.

(WITNESS STOOD DOWN)

(PROCEEDINGS ADJOURNED FOR MORNING RECESS)

(PROCEEDINGS RECONVENED)

Fox:

They took the pen from me downstairs.

Johnson:

Oh, did they? Okay.

Fox:

They would not give it back to me.

Johnson:

Okay. Wonderful. That's fine.

Judge:

We'll get you another pen if we can.

Fox:

Thank you.

Clerk:

And I forewarned them that you'd be coming down with it.

Judge:

Mr. Registrar, thank you.

Clerk:

But I did ask them to make sure that --

Fox:

Wonderful. Thanks very much.

Judge:

Thank you.

I ask Johnson to admit that on 2020-06-22, while I was in custody, there was a post to my Facebook timeline linking to the website. He agrees to the admission. Neither he nor Phillips inquires or expresses any interest in the purpose of the admission.

It shows that even though I was in custody and, therefore, didn't have access to the internet, I was somehow able to post content to my Facebook page. This was so that if Johnson later tried to argue that the website couldn't have been put online prior to my release (such that I should have been charged with breaching Condition 13, not Condition 12) I could point out that if I was able to update my Facebook timeline from within custody then I could also update the website from within custody. But it never came to that because he never challenged my claim that the website was put online prior to my release from custody.

It's very curious, though, that Phillips didn't even question the purpose or relevance of the admission. I suppose if she had already decided she was going to convict me no matter what, then the purpose of the admission was irrelevant to her.

Johnson:

Your Honour, I can say that over the break I spoke to Mr. Fox. He had a concern which he raised to me a couple of months ago about some evidence that he wants to adduce. I'm not sure the relevance of it and I make no comment on that at this point, but he indicated that he would like it to be before the court that on -- Mr. Fox, was it June 22nd?

Fox:

Yes.

Johnson:

Yes.

Fox:

June 2020.

Johnson:

That on June 22nd of 2020 he posted a post on his Facebook timeline -- just one second.

Judge:

Yes. Thank you.

Johnson:

What I did was I -- he told me his Facebook name. I went onto his Facebook timeline. He can confirm that that is his. But on June the 22nd he posted on his Facebook timeline the comment which is, "Still here, mother fuckers!" And there's an attachment which is www.desicapuano.com which I didn't review the attachment, but I believe Mr. Fox would like me to admit that it's the website and I'm willing to do that. Is that correct, Mr. Fox?

Fox:

Essentially, yes, but the critical part of that that I would like the Crown to admit is that that was done while I was in custody.

Johnson:

Yes, Mr. Fox was in custody on June the 22nd of 2020.

Judge:

That addresses the admission that you're seeking, Mr. Fox; is that correct?

Fox:

Yes.

Judge:

Okay, thank you.

Fox:

And it may become relevant during the cross-examination, but it might not.

Judge:

Okay, thank you. Mr. Johnson, just again for the record, you're now concluded your evidence in chief of Officer Fontana?

Johnson:

Yes, I have. Thank you.

Judge:

So, cross-examination, then, Mr. Fox, of the officer. Go ahead when you're ready.

Fox:

Okay. I apologize, I don't have a copy of the probation order with me.

Judge:

I think we can probably make that available to you. I don't know, Mr. Johnson, if you have an extra copy or if we would have it in the court file if it's been filed --

Fontana:

I may have one.

Judge:

-- or perhaps the officer can assist.

Fox:

The important part would be for the witness to have access to that --

Judge:

Oh, okay. So --

Fox:

-- because I may want to ask her --

Judge:

-- if you've got that, Constable Fontana?

Fontana:

I don't believe I have it, Your Honour.

Judge:

We'll let's just take a moment. I'm sure we can find a copy somewhere.

Fontana:

I apologize, Your Honour. I do not have one.

Judge:

That's fine. Thank you.

Johnson:

I do have a copy.

Judge:

You've got a copy? So, I think --

Johnson:

I only have the one copy, but I'm happy to -- if Mr. Fox requires it, I'm happy to lend it to him.

Judge:

Thank you. And I think, Mr. Fox, what you're asking is that that be made available to the officer because you've got some questions about it?

Fox:

I may have some questions.

Judge:

Okay. So, Mr. Johnson's got it there should you need to use it, either you or for the officer or both of you. We should be able to accommodate that. Thank you.

Fox:

Okay. Thank you.

JENNIFER FONTANA

a witness called for the Crown, recalled.

CROSS-EXAMINATION BY THE ACCUSED:

Fox:

Good morning, Detective Fontana.

Fontana:

Good morning, Mr. Fox.

Fox:

You had testified that you became aware of the website through a Google search on March 18th, 2019; is that correct?

Fontana:

Yes, Your Honour. I became -- I was told of the website when the police investigation started, and on the 18th I confirmed that the website was still up and running.

Fox:

Okay. In this letter that went as Exhibit 1, did I state in there when I created or published the website?

Fontana:

I don't recall the very specifics of the letter, Your Honour. I haven't read it recently.

Judge:

And you can direct her specifically to that point if there's something in there you'd like her to have in front of her.

Fox:

What I'm looking for here is an acknowledgment that in fact it's not stated anywhere in here when the website was created or published. So, what I was looking for was if the answer would've been no, that it's not. But if you'd like, you could --

Fontana:

I did hand over my only copy that I brought today, Your Honour.

Judge:

Yes. So, let's hand the Exhibit 1 back to the officer. And then, Mr. Fox, let's just give the detective a chance to read that over and she can then specifically address the question.

Fontana:

Your Honour, there is no specific date listed in the letter. However, Mr. Fox does reference the trial from 2017 which would put it more presently than the previous trial and the previous website which he was convicted of had a different name than this current website and he references the new website name in this letter, which leads me to believe he's referencing the new website.

Fox:

Okay. When you came to North Fraser and spoke with me, I believe it was June 24th, 2019?

Fontana:

Correct, Your Honour.

Fox:

Did I at that time state to you when I published or created the current version of the website?

Fontana:

Not to my recollection, Your Honour.

Fox:

Okay. Do you have any first-hand knowledge at all of when the website became publicly accessible, when it was published?

Fontana:

I believe there were -- it was early March. I want to say March 12th or 13th, but I can't -- in March of 2019, Your Honour.

Fox:

So, would that be a yes? Sorry, the question was do you have any first-hand knowledge of when the website -- I wasn't asking when you believed the website became available or became public, but rather whether you have any first-hand knowledge of exactly when it did.

Fontana:

And when you say first-hand knowledge, do you mean from you specifically?

Fox:

From me or from the hosting provider. I believe it's GoDaddy is the hosting provider?

Fontana:

Correct, GoDaddy is the hosting provider. I'm not -- I don't have anything with me and I don't want to -- the investigation has gone on for such a long period of time, Your Honour, I'm not -- I don't want to say that I don't have it because I just have so much information, but I can't say with certainty that I do have that.

Fox:

Do you know whether the website was made public before or after December 30th, 2018?

Judge:

Sir, can you repeat your question? I just missed it.

Fox:

Sure. Sure.

Fox:

Do you know whether the website was made public -- in other words, that it was published as opposed to when it was created because that's a whole other issue. Whether it was made public before or after December 30th, 2018?

Fontana:

I believe it was made public in March.

Fox:

And what are you basing that belief on?

Fontana:

The information was sent out to multiple news outlets, Your Honour, as well as the previous Crown counsel.

Fox:

So, is it reasonable to say that you became aware of it in March?

Fontana:

Correct, Your Honour.

Fox:

Okay. But as for when it actually became publicly accessible -- because that's what I'm on trial for, is when it became publicly accessible, not when you became aware of it.

Fontana:

Well, Your Honour, I am not a computer expert and I do not -- I'm not able to tell you when a website was made publicly available. I'm not sure how to look that information up.

Fox:

So, is it reasonable to say, then, that you really have no idea whether the website was published before or after December 30th, 2018?

Fontana:

I didn't specifically look for that information, Your Honour.

Fox:

Let me ask it another way. Do you have any firsthand -- no. Do you know whether the website was made publicly accessible before or after December 30th, 2018?

Fontana:

I don't know how to provide that information -- I don't know how to locate that information, Your Honour.

Fox:

Can I accept that as a no, you don't know whether or not it was publicly accessible on or before that date?

Fontana:

I could look it up. At this time I can't say yes or no, Your Honour.

Fox:

Well, I mean, either you know or you don't know. Either you know that the website was accessible on a given day or you don't know whether it was accessible.

Fontana:

I don't know. I can't say it was and I can't say it wasn't.

Fox:

Right, right. Thank you. That's what I was looking for, is whether you know or you don't know. Do you know when the probation order took effect? When did it start?

Fontana:

May I look at the --

Fox:

Sure.

Fontana:

-- probation order, please?

Judge:

Yes.

Johnson:

I've provided the witness with a copy of the order that I have.

Judge:

Thank you.

Fontana:

I believe if I'm reading this correctly, the probation order would have been November 10th, 2017.

Fox:

Well, that's when I was sentenced.

Fontana:

There's a new variation date of February 6th, 2019. I'm not sure, Your Honour…

Judge:

Sorry, what was that last date?

Fontana:

It says varied on February 6th, 2019, Your Honour.

Judge:

Thank you.

Fox:

Perhaps I can turn to the court and Mr. Johnson for some guidance. In the Criminal Code it states that a probation -- a period of probation will commence once the person is released from the current incarceration. Can we agree that that would be the case here?

Johnson:

Yes --

Judge:

Okay.

Johnson:

-- and I believe it says -- oh, no, I have that in a different document --

Judge:

Okay.

Johnson:

-- but I agree with Mr. Fox that on November the 10th of 2017 he was sentenced to a period of incarceration. There was a substantial amount of time served which was deducted --

Judge:

Okay.

Johnson:

-- but there was still time to be served followed by this three-year probation order. So, this probation order would not have taken effect until that incarceration was completed.

Judge:

Good. And I think the law is clear on that as well.

Johnson:

Right. But I would say that there's an inference from the front of the order, which I will file with the court now, that Mr. Fox was not in jail on February the 6th of 2019, because the probation order was varied on that date.

Fox:

That's correct.

Judge:

Okay, good. Thank you.

Johnson:

And so, now that the witness has looked at this document, we'll file it as Exhibit 2?

Fox:

Sure.

Judge:

Thank you. So, no issue with that document now being marked? The witness looked at it.

Fox:

Correct.

Judge:

Thank you.

Johnson:

Did you want me to -- sorry, I'm just addressing Mr. Fox for a moment --

Judge:

Yes.

Johnson:

-- but I could look at the reasons for judgment and I'd be able to say when the probation order started if that helps.

Fox:

Oh, no, no, I know exactly when it started. It would've started once I was released from Fraser at the end of the sentence, and that's where I was going with this line of questioning.

Judge:

Okay, thank you. So, let's mark the probation order Exhibit Number 2.

EXHIBIT 2: Copy of probation order re Patrick Fox dated November 10, 2017

Fox:

And I am going to be referring shortly to the probation order again --

Judge:

Good.

Fox:

-- because there's --

Judge:

So, we'll have it back in front of the detective.

Fontana:

Thank you.

Fox:

But before we go down that road, so -- sorry, I'm just trying to think of how I can phrase this as a question to the witness.

Fox:

Do you know when it was that my period of incarceration on that charge ended? In other words, when that probation order would have commenced? Are you aware of that or --

Fontana:

I believe, if I remember correctly, it was December 30th --

Fox:

Right.

Fontana:

-- 2019.

Fox:

Okay. And so, was I -- would I have been bound by the conditions in that probation order prior to December 30th, 2018, since it had not actually started yet?

Fontana:

That I can't say for sure, Your Honour.

Fox:

Okay. On direct you had stated -- you had made reference just vaguely to the amount of information that you had seen that's on the website. And you had testified, I believe, that most of it pertains to my ex-wife, Desiree Capuano; is that correct?

Fontana:

Correct, Your Honour.

Fox:

And did you find any information on the website that is untrue?

Fontana:

Well, Your Honour, I haven't gone through every bit of it and I don't know Ms. Capuano personally, so I can't attest to her character.

Fox:

So, that sounds to me like you're saying no, you didn't find any information that you knew to be untrue?

Fontana:

I never said any of the information on the website was untrue.

Fox:

Right.

Fontana:

I said it was --

Fox:

That's why I worded --

Fontana:

-- unkind and did not show her in a very positive light.

Fox:

Sure.

Fontana:

I never said it was -- there was anything that was untrue. I can't -- I cannot say whether it is or is not, Your Honour.

Fox:

Sure, sure. So, I'd like to turn your attention to the probation order again to the two conditions in particular that would be relevant to these charges. I'm not sure which conditions those are off the top of my head.

Fontana:

I believe one of them would be Condition 12, Your Honour. Would you like me to read it out loud?

Fox:

Sure.

Fontana:

Okay. And please correct me, Mr. Fox, or Crown if I'm interpreting the condition incorrectly and it should be a different number. Condition Number 12 [as read in]:

You must not disseminate, distribute, publish or make publicly available in any manner whatsoever, directly or indirectly, information, statements, comments, videos or photographs which refer to or depict by name or description Desiree Capuano, James Pendleton, [name omitted], or any of their friends, relatives, employers or co-workers.

Johnson:

I should just rise for a moment to say, Your Honour, that I don't disagree with how the witness read that, but the name [name omitted] is subject to a publication ban --

Judge:

Okay.

Johnson:

-- in the Supreme Court. And so, in the order or in other documents she's known as S.

Judge:

Okay, thank you.

Fontana:

My apologies.

Judge:

No, that's fine.

Fontana:

And I believe the other condition would be Condition Number 14:

You must not use the internet or any computer or cellular network except as required to fulfill Condition 13 for the purpose of employment or sending personal emails.

Your Honour.

Judge:

And sorry, what was the number of that last one?

Fontana:

That was Condition 14, Your Honour.

Johnson:

I'm just -- I'm asking to look at that --

Judge:

Yes. Thank you.

Johnson:

-- exhibit if I might, Your Honour. And it's Mr. Fox's cross-examination. There is one portion that also applies.

Judge:

Okay.

Johnson:

I don't know if I should draw that to his attention now or not.

Judge:

Perhaps you can just mention it to Mr. Fox and then he can deal with it as he sees fit.

Johnson:

Sure. Condition 13 is the condition that indicates you are to, within 24 hours of your release, etc.

Fox:

Yes, I'm familiar with that.

Judge:

Okay, thank you.

Fox:

So, in those two conditions that you just read, do you agree that the restrictions on conduct that are stated therein apply specifically to me?

Fontana:

Yes.

Fox:

Okay. Do you agree that those restrictions on conduct do not apply to any other person in the world alive right now or ever, just me? Does it state in there directly or indirectly or does it make any reference to any other person not being permitted to do that?

Fontana:

It says you must not make publicly available, Your Honour.

Fox:

Right. I must not make publicly available.

Fontana:

I would interpret that as -- that that information should not be made publicly available by -- and it says in any manner whatsoever. So, therefore, personally, Your Honour, I would interpret that to mean that this information is not to be made publicly available by any means.

Fox:

I'm not certain, but I do believe a probation order cannot be imposed upon people who have absolutely nothing to do with the charges, but neither here nor there. Where I'm going with this is, is there anything that you see in the wording of those conditions that prohibits somebody else from engaging in conduct on my behalf?

For example, at the jail sometimes I'll need to look up something on the internet, say an address for a government agency, for CBSA for example, and so I will ask the officer at the jail if he could look up CBSA's address in Ottawa. That would be accessing the internet indirectly. Is there anything in the wording there that you see that would prohibit me from doing something like that?

Fontana:

Well, I think accessing an address and posting personal information about someone are two very different --

Fox:

Sure, but that's not my question. My question --

Fontana:

-- uses of the condition.

Fox:

You see, the court could have phrased it as you cannot do these things directly or indirectly. However, the court didn't phrase it in that way. The court only imposed these conditions upon me. I'm asking you, do you agree, the way I'm interpreting that, is that literally how it is phrased?

Fontana:

Sorry, can you repeat the question again?

Fox:

Yeah, sorry, I didn't really phrase that well. Are those conditions literally phrased such that they apply only to me, not to other parties who may be acting on my behalf?

Fontana:

Well, I'll go back to the -- the make publicly available in any manner whatsoever --

Fox:

Sure.

Fontana:

-- because if there's been information that's been given to you and only you and it's been shared with someone --

Fox:

Mm-hmm.

Fontana:

-- then I think that you are responsible for that information --

Fox:

Sure.

Fontana:

-- and what that person does with it.

Fox:

What if the information in question was public before I came in contact with it? What if it was information that was obtained from the other person's Facebook page? What if she was the one that made the information public?

Fontana:

I can't --

Fox:

I certainly can't be responsible for what other people do with information that was made public by the complainant. Do you - sorry -- to make that a question, do you agree with that, that I can't be responsible for what third parties do with information that the complainant herself made public?

Fontana:

I don't know what information you're speaking to, Your Honour.

Fox:

Well, a lot of the information on the website was information obtained from public sources and from Ms. Capuano's own Facebook page. Much of the information on there was not information that was given exclusively to me. Anyway, we'll move on. Now, earlier there was some brief discussion of something that was posted on my Facebook timeline. You were present when that was discussed a little while ago?

Fontana:

Just now, Your Honour, yes.

Fox:

Right. Is it your understanding that on June 22nd, 2020, when that was posted on my Facebook page or Facebook timeline, that I was in custody?

Fontana:

To the best of my knowledge, yes, Your Honour.

Fox:

Okay. So, is it reasonable to say, then, that it is entirely possible that even though I was in custody prior to December 30th, 2018, stuff still could've been put onto the internet maybe on my behalf or by other people?

Fontana:

Well, it's possible. Yeah.

I ask Fontana, whether it is possible that even though I was in custody prior to 2018-12-30, some third party may have put the website online or made updates to it? She admits that is possible.

This is one of the reasons I brought up the update on my Facebook timeline earlier. It would have been difficult for Fontana to claim it was not possible for someone else to put the website online after the Crown already admitted that someone had made updates to my Facebook profile while I was in custody.

This is also relevant to my testimony in 244069-8-B, because it is consistent with my later claim that someone else put the website online while I was in custody. Showing that my testimony in that matter was not something I just made up at that time because I thought it would be less incriminating (as the Denhoff and Johnson claimed).

Anything's possible, Your Honour.

Fox:

All right. Sorry, I'm just double-checking my notes -

Judge:

Certainly.

Fox:

-- to make sure I didn't miss anything.

Perhaps one last thing I want to ask you about. You testified on direct that you had some communication with GoDaddy and that that resulted in the website being shut down or suspended for 90 days?

Fontana:

Correct, Your Honour.

Fox:

And why is it that you didn't take any further action after that? I believe that they -- you had said that they had told you that they would need a U.S. court order in order to suspend it permanently?

Fontana:

Correct, Your Honour, and I still haven't ruled that out. These investigations take a lot of time --

Fox:

Really?

Fontana:

-- and you're not my only file; and I have multiple other files on the go as well. So, it's merely an issue of resources at this time, Your Honour.

Fox:

Oh. Yet the Crown, not specifically Mr. Johnson, but the B.C. Prosecution Service in general and certain members of the justice system here seem to believe that I am subjecting Ms. Capuano to just outrageous trauma with this website, yet neither Ms. Capuano nor yourself or even the victim services people that keep hounding her to push this matter have done anything at all to get the website suspended or taken down.

Fontana:

Well, I did get it suspended, Your Honour. I did that --

Fox:

Oh, sorry.

Fontana:

-- in the interim.

Fox:

Yes.

Fontana:

And like I said, yes, we deal -- the way that I deal with my files is those victims that are in imminent danger physically, those are my number one concerns. And as I go down through my files, Ms. Capuano's personal safety is not in danger at this point, therefore I have worked on other files as well, but I've definitely not ruled out going that route, Your Honour.

Fox:

Okay. And finally, so to confirm so that we're all completely clearly on this, it is my understanding that you're saying that you have absolutely no idea whether the website was made publicly accessible before or after the probation order took effect.

Fontana:

I do not have that date on hand, Your Honour.

Fox:

Okay. Can I also assume that you have no firsthand knowledge about whether I made the website publicly accessible or somebody else did it either on my behalf or completely independent of me?

Fontana:

Well, I believe when we met in person, Your Honour, that you stated to me that you had created the website and were maintaining the website.

Fox:

Created, yes, but bear in mind the website that's online right now is the same website that was created back in 2014. It's just a newer version of the website, but to say that it was created, the website was created back in 2014. That's why I keep saying --

Judge:

You have to put that in the form of a question, Mr. Fox, otherwise --

Fox:

Sorry.

Judge:

-- I can't consider it.

Fox:

Sorry, sorry.

Judge:

You can go down that route --

Fox:

Yeah.

Judge:

-- and the officer may or may not have knowledge about it.

Fox:

Right, right.

Judge:

But without that, then the question can be given no consideration.

Fox:

My apologies.

Judge:

No, that's fine.

Fox:

Is it your understanding that I wanted to be prosecuted for criminal harassment based on this current version of the website that's online?

Fontana:

Yes, Your Honour.

Fox:

Okay. And is it your understanding that I have said or done some things to try to antagonize or convince or maybe even coerce the B.C. Prosecution Service and possibly even the VPD to pursue that prosecution for criminal harassment?

Fontana:

I believe you brought the new website to light knowing that an investigation would follow, Your Honour.

Fox:

Did I state in this letter, "So, anyway, in closing -- respectfully request you charge me with criminal harassment and…" Etc., etc.?

Fontana:

Correct, Your Honour. It's there in writing, yes.

Fox:

Okay. Is it reasonable or do you agree that it is reasonable that perhaps I'd been saying some things to the police and maybe even to the B.C. Prosecution Service and maybe even openly in court to try to provoke the justice system here to prosecute me for criminal harassment which -- things which may or may not be true? For example, admitting to things that maybe I didn't do just because I'm trying to provoke you to do that.

Fontana:

I can't answer to what your intentions may be, Your Honour.

I point out I unequivocally requested, in the letter, to be charged with criminal harassment. I then ask Fontana if she'd agree that it seems reasonable that I may be making saying things and making admissions which may not be true, for the purpose of antagonizing them into prosecuting me for criminal harassment.

Again, this supports and is consistent with the testimony I later made in 244069-8-B. This proves that Denhoff's and Johnson's claims in that trial, that I had changed my statements at the time of testifying because I realized they were less incriminating is nonsense. Since this trial occurred a year and a half before the Denhoff trial, and I'm making references here which are consistent with my testimony in the Denhoff trial, then I obvioulsy didn't just change my story at the last minute as Denhoff said.

Fox:

That's fine. The important thing, though, is -- well, the important thing is whether -- whether the website was made publicly accessible before or after December 30th and we've established that you have no knowledge of when that happened. That being the case, I don't believe I have any further questions.

Judge:

Thank you. Just give me --

Fox:

Thank you.

Judge:

-- one moment, please.

Fox:

Sure.

Judge:

Just bear with me for a moment, please.

I don't have any questions for the witness, so let me just ask Mr. Johnson, on behalf of the Crown, if there's any redirect.

Johnson:

Yes.

Judge:

Thank you.

RE-EXAMINATION BY CNSL C. JOHNSON:

Johnson:

The first thing I would like to ask the witness is in the interest of fulness. If the witness could also read out Condition 13 of the probation order because I do believe it has some relevance.

Fontana:

Yes. [As read in]:

Within 24 hours of your release from custody you will take all necessary steps to ensure that any website, social media page or other publication which you have authored, created, maintained or contributed to which contains any information, statements, comments, videos, pictures which refer to or depict by name or description Desiree Capuano, James Pendleton, S. Capuano, or any of their friends, relatives, employers or co-workers, including the website published under the domain www.desireecapuano.com is no longer accessible via the internet or by any other means.

Judge:

Thank you.

Johnson:

I see Mr. Fox is on his feet.

Judge:

Yes.

Johnson:

I'll let him speak first. I do have some more questions.

Judge:

Oh, okay. Thank you.

Fox:

I just wanted to point out I'm in no way charged with violating that condition, so I object to this. I don't think it's relevant.

Judge:

Okay. Anything -- Mr. Fox, that really is a matter for argument at the end.

Fox:

Sure.

Judge:

But I have your point.

Johnson:

Thank you.

Judge:

Thank you. I think there's further questions in redirect.

Johnson:

Detective Constable, you indicated in response to Mr. Fox's cross-examination that when you went to interview him in June of 2019, that he stated to you that he had created and updated the website of which you were speaking?

Fontana:

Yes, Your Honour.

But in fact, this is false. Fontana did NOT say during cross that I had stated I had "updated" the website. She only said I had stated I "created and was maintaining" the website (p38l41-43). Updating and maintaining are completely different. Maintaining means keeping it running, or online; updating means adding content to it. Maintaining doesn't necessarily require any action on the maintainer's part; updating absolutely, unquestionably requires action on the updater's part.

This is the kind of sleazy shit that BC prosecutors do. They slip one word change into a larger statement, hoping you won't notice it, then suddenly that new, false statement becomes fact. Just fucking sleazy, greasy, slimy bastards. Later, in his closing arguments, Johnson's going refer to Fontana testifying that I told her I was updating the website (p47l33-37), even though she never testified to that at all. Greasy prick!

Interestingly, the first occurrence of the word "update" (or any variation thereof) does not appear in the transcript until this line. Nobody said anything about updating the website until Johnson falsely claimed, here, that Fontana had said it earlier on cross.

Johnson:

And you've indicated in response to Mr. Fox's questions that you are unable to say exactly when the website was created?

Fontana:

Correct, Your Honour. I don't know internet website creation at all.

Johnson:

But I gather that when he said updated, you took that to be current as opposed to something else?

Fontana:

Yes, Your Honour.

Johnson:

And are you able to elaborate on that as to the timing of that?

Fontana:

My understanding is that the initial website that Mr. Fox was convicted of was www.desireecapuano.com and I have reviewed that website as well and when I look at www.desicapuano.com, I can see that they are -- everything on www.desicapuano.com is on the desireecapuano.com website, plus new information, including information from the trial, emails, recordings, police reports, things that would've been, I believe, given to Mr. Fox through disclosure which leads me to believe that this information would have been updated to the website after he was released from custody because he was in custody until December 30th and these -- the website -- I got notified of the website in early March and these were items that were given to him through disclosure and he was put in custody after he was convicted. I don't think -- I don't think I explained that very well.

Judge:

Just give me one moment, please. Thank you. Anything else?

Johnson:

No, thank you, Your Honour.

Judge:

Thank you. Mr. Fox, generally speaking, you don't get a chance to ask further questions in response to the Crown's redirect. It's a chance for the Crown to go -- excuse me, to ask the witness questions that arose from the crossexamination. So, they don't get to go back either --

Fox:

Right.

Judge:

-- but you're a self-represented individual. Let me just pause for a second.

Without asking the question, do you have anything that you wanted to follow up on from those last few questions raised by the Crown? I appreciate you've made some comments and I do think they go to closing remarks.

Fox:

No.

Judge:

Okay, thank you. So, can the officer be excused, then?

Johnson:

Yes.

Judge:

Detective Constable Fontana, thank you for attending. You're excused.

Fontana:

Thank you, Your Honour.

Johnson:

And, Your Honour, that is the evidence I'm calling on behalf of the Crown.

Judge:

Thank you. And I just want to make sure, then, that we've got from the officer the probation order --

Johnson:

Oh, the probation order.

Judge:

-- and the letter back.

Fontana:

Oh.

Judge:

Thank you.

Johnson:

And the letter.

Fontana:

Sorry about that.

Johnson:

That's okay.

Judge:

Thank you. That's fine.

Johnson:

Thank you.

(WITNESS EXCUSED)

Judge:

Mr. Johnson --

Johnson:

So, I'll just say again, Your Honour, I'm formally closing the Crown's case.

Judge:

Thank you. Just bear with me for a moment, then, please.

So, Mr. Fox, just to go through the formalities. Now that the Crown has closed its case and finished calling all of their evidence, you have the following options. You may move for a directed verdict of acquittal. This means that you'll be asking the court to dismiss some or all of the charges at this stage because you believe there is no evidence in relation to at least one of the essential elements of the offence that the Crown must prove.

Bear in mind as I indicated earlier, if you move for such a directed verdict and I rule against you, you will then be allowed to decide whether or not to call a defence. If the judge rules for you, you'll be acquitted on, you know, one or both counts depending on how that pans out.

This is the other piece of evidence -- or the other important thing -- distinction to bear in mind. You may decide not to present evidence and then argue that the Crown evidence is insufficient for a finding of guilt. If you choose not to testify and not to call any witnesses, I will decide the case based only on the evidence presented during the Crown's case. At this point you'll be convicted only if I find that every essential element of the offence has been proven beyond a reasonable doubt.

The disadvantage to this second approach is that if -- is that it means you cannot ask to reopen your case and call evidence and tell your side of the story if I'm satisfied the Crown has met the burden on them. So, the first one you can, the second one you can't just so it's clear. If you choose not to testify or call evidence, I cannot draw an adverse inference against you from doing that because of the presumption of innocence just so it's really clear. You have the right to remain silent, of course.

You may decide to call evidence in your defence. You've indicated that won't be additional witnesses, but it can include that or include you testifying on your own behalf. As I've pointed out, you're not obligated to call evidence. The Crown bears the burden. It remains on them at all times. Nor are you obligated in any way to testify.

If you do testify, you must go into the witness box and affirm to tell the truth. You can then tell me what happened, what you'd like to tell the court about this matter, but bear in mind after that the Crown then gets a chance to cross- examine you. They can question you about your criminal record if you have one. The Crown cannot bring up your criminal record if you testify.

Now, that's a bit artificial in this instance. I've got to disabuse my mind of the fact that probation order relates to a conviction. I'm going to. I'm just going to look at the nature of the charges in front of the court and whether there was a breach of that order without looking at that background piece. It just provides that narrative.

If the Crown -- if you do testify and the Crown cross-examines you about your criminal record, Mr. Fox, you should bear in mind that the record is relevant to your credibility, not to whether you had the tendency or have the tendency to commit the type of offence that you're charged with today, the breaches of probation.

Bear in mind if you do not call evidence, you're left to argue that the Crown has not proven some or all of the elements against you beyond a reasonable doubt and you can ask in that regard that there's certain inferences to be drawn. So, you can kind of talk about it at kind of a face level, that they missed something, or that there's an inference to be drawn that should cause the court to find that there's a reasonable doubt. So, there's a subtlety to it as well.

Regardless of whether you choose to testify or not, Mr. Fox, you will be given an opportunity to make your closing submissions. So, you'll always have that opportunity. It's not foreclosed whether you testify or not. Mr. Fox, with all of that in mind, before I ask you, then, whether you wish to call evidence, do you have any questions about understanding the options available to you?

Fox:

No, no. I think I'm clear on them.

Judge:

Okay.

Fox:

Thank you.

Judge:

With that in mind, then, Mr. Fox, do you intend to call evidence?

Fox:

I'm leaning towards saying no at this point. Sorry, it's just I'm running everything through in my mind and --

Judge:

Yes. Take your time.

Fox:

-- thinking if there's anything that the officer testified about that I should respond to and --

Judge:

Let me ask you this, Mr. Fox. If I gave you five minutes just to mull that over, would that be of assistance to you?

Fox:

I think that that would be very beneficial, yes.

Judge:

Okay. So, let's do that, then. Let's take a five-minute break --

Fox:

Thank you.

Judge:

-- and then we'll carry on. Thank you.

Clerk:

Order in court. All rise.

(PROCEEDINGS ADJOURNED)

(PROCEEDINGS RECONVENED)

Judge:

Mr. Fox, having had that chance, then, to think about whether you are going to call evidence, what is your intention, then?

Fox:

I have decided not to.

Judge:

Okay, thank you. So, with that in mind, I'm now going to make my decision based upon the evidence that is in front of me. The next question I have, then, is just a procedural or a logistical one, I guess, more properly. We've got 10 minutes left in the morning session. We can break now so you can think about your concluding remarks to the court if you like.

Often lawyers ask for a bit of time to put their thoughts together. If you'd like that time, sir, I'm satisfied we're in good shape in terms of finishing up with the hearing today, so we can do that. If you would prefer, we can get started now. I think Mr. Johnson's going to go first. So, if you would like, if Mr. Johnson's willing and prepared, he could start now and then you can hear a little bit of what he said and that will give you more time. I'm confident we will not have your closing submissions before we break for lunch if that makes sense, Mr. Johnson, as well from your perspective.

Johnson:

I'm happy to do that, Your Honour.

Judge:

Okay.

Johnson:

I can -- I think I can be very quick.

Judge:

Thank you. Mr. Fox, let's -- I think probably that makes the most sense --

Fox:

Sure.

Judge:

-- and then we'll see where we're at when Mr. Johnson is done and you can decide whether you want to start your submissions and finish them or go until 2 o'clock and then we'll finish up. So, just give me one moment, please. Go ahead, then, Mr. Johnson. Thank you.

SUBMISSIONS FOR CROWN BY CNSL C. JOHNSON:

Johnson:

Your Honour, Mr. Fox faces two counts that are before you. I will say that with respect to Count 1, the Crown has called evidence which I say is direct and relevant towards the proof of that count. With respect to Count 2, I would say that the evidence is more inferential in that regard. And so, most of what I say will address Count 1 as opposed to Count 2. It doesn't mean that I'm not addressing Count 2, but there is a difference in the evidence, and so those two counts overlap.

With respect to Count 1, then, the evidence is that, firstly, Mr. Fox -- Crown says that they've proved the essential elements, his identification, the jurisdiction issue, that there is a probation order which bound him at the relevant time, and that the order forbid certain types of conduct and which the Crown says that Mr. Fox has engaged in. And he's chosen not to call evidence and so he hasn't provided the court with a reasonable excuse should the court find that he did engage in that conduct.

Specifically, the Crown agrees with Mr. Fox that the Crown hasn't proven when the website www.desicapuano.com was created and that is something that's likely known only to Mr. Fox, but I do say the Crown isn't required to prove that. What the Crown is required to do is that -- is to prove that Mr. Fox was involved in that website or contributed to that website or operated that website in some way while he was on probation. And I do say that the evidence that you've heard leads overwhelmingly to the inference that is, in fact, the case.

Specifically, I'll point to a couple of areas. The letter that Mr. Fox authored which is -- has been marked as Exhibit 1 in these proceedings is dated June the 6th and Mr. Fox has admitted that he did author that letter, a copy of which is before the court, and subsequently Detective Constable Fontana spoke to Mr. Fox about the letter when he again indicated that he was the author of that letter.

The letter does not say, as Mr. Fox has pointed out quite fairly, when the website was created, but the letter does say, and I'm looking at page 3 now, the bottom paragraph, as follows [as read in]:

On the other hand, how do you and the Crown explain not pursuing another criminal harassment charge to the many angry feminists and Canadian news media who adamantly refuse to accept that Capuano is simply an evil person? Particularly, since by publishing the new website I have engaged in exactly the same conduct which Justice Heather Holmes declared formed much of the basis of the guilty verdict in 2017 (at the first criminal harassment trial). I mean, if the website constituted criminal harassment at that point, then it must certainly still constitute criminal harassment now! Right?

And so, the Crown relies on that portion of the letter which clearly, I say, establishes that after being sentenced to jail and while on probation Mr. Fox published the website of which we've heard in this matter and as a result of that, I say that he's clearly guilty with respect to Count 1.

On top of that, I would add the evidence of Detective Constable Fontana in her conversation with Mr. Fox, and I just want to get the words right, where he indicated to her that he had created and updated the website. And certainly, you heard that the material on the website had been up -- or the website had been updated or materials published from the trial at which Mr. Fox was convicted, and the clear inference of that is that those materials were obtained by Mr. Fox and subsequently published on that website.

So, given his admissions both orally to the police officer and in writing in the letter, the fact that the website remains in existence and has periodically been checked, that, in my submission, is a clear contravention of the probation order and as a result of that I say that Mr. Fox should be found guilty.

Now, that's with respect to Count 1. Count 2, as I've indicated, is more inferential and so from the conduct that I say the Crown has established in Count 1, it would be clear that Mr. Fox would have to access the internet in order to update the website or post materials on the website. And so, the Crown says that looking at Count 2 in that way, the Crown has proven its case.

And, Your Honour, those are my submissions.

Judge:

Thank you. Mr. Fox, noting the time, we've got about two minutes left before the lunch break, it's not rigid, but if you think you're going to be more than a few minutes, then I suggest we adjourn and hear from you at 2 o'clock. What is your wish?

Fox:

I agree with adjourning until two.

Judge:

Okay. Thank you. Let's do that. We will reconvene and hear Mr. Fox's closing submissions at 2 o'clock. Thank you.

Clerk:

Order in court. All rise.

(PROCEEDINGS ADJOURNED FOR NOON RECESS)

(PROCEEDINGS RECONVENED)

Clerk:

I inquired about the pen -

Johnson:

Okay.

Clerk:

-- and they said they are [indiscernible/ not near microphone] going to bring the pen.

Johnson:

Wonderful. Thanks for that. Recalling the Fox matter, Your Honour.

Judge:

Thank you. We'll give Mr. Fox a moment just to get organized. Take your time, sir.

Fox:

Okay.

Judge:

So, closing arguments by Mr. Fox, then, on his own behalf.

SUBMISSIONS BY THE ACCUSED:

Fox:

Thank you. It is my position that the Crown does not only have to prove that I was on probation, but specifically that I was on probation at the time or at the moment that I engaged in the prohibited conduct, and it is my submission that the Crown has failed to do that. I mean, there's no dispute that I published the website. I've been very open about that. However, there's been absolutely no evidence of when the website was published.

And I believe it is commonly accepted, and I believe that everybody here would agree, that any -- if I engaged in the conduct before the probation condition took effect, then it cannot be considered a violation of that probation order. And the fact that the results of engaging in that conduct, in other words the fact that the website continued to be publicly accessible, does not actually violate the conditions that I'm accused of -- or, yeah, does not violate those conditions because the conditions only prohibited me from engaging in specific conduct.

And the Crown even admits in his closing arguments that they haven't proven when the website was, as he said it, created, though I believe he also meant when it was published because that's really the important issue here.

Now, the court had heard testimony and from the Crown that there's content on the website which came into existence after the 2017 trial and that proves that the website must've been published after that point, and there's no dispute about that. However, all of the content that's on the website which the witness and the Crown referred to all came into existence and came into my possession before my release from Fraser on December 30th.

So, the fact that I had it and the fact that it ended up on the website still does not give any indication of whether the website was published before or after the probation order came into effect.

It's also my position that the Crown has failed to prove whether I personally uploaded or made any specific content that's on the website publicly available, as opposed to somebody else doing it on my behalf. Now, I've been very open and very frank with everybody that I created the website, and that I published the website, but I've never stated that I published any or uploaded any specific conduct -- or content on the website.

So, even if there is specific content on the website which had come into existence after my release from Fraser, I have never admitted that I put that specific content on there. So, again, I believe that the Crown has failed to prove that.

And I guess that's -- I guess that's all I would have on it. Thank you.

Judge:

Thank you. Just bear with me for a moment, please.

Anything further from the Crown?

Johnson:

I think Mr. Fox might want to say one more --

Judge:

Oh, sorry, I didn't see you standing again, Mr. Fox --

Fox:

I'm short.

Judge:

-- in my peripheral vision. My apologies.

Fox:

I'm sorry, there was one other point --

Judge:

Yeah. Go ahead.

Fox:

-- that I wanted to make, but it wasn't written in my notes here because they won't let me have a pen downstairs. The Crown did bring up Condition 13 which required me to remove from the internet the website or any other content that was up at that time. My position on that is that I'm not charged with violating that condition, and so even if I did do that, the Crown is more than welcome to charge me with that and we can start this whole process over again. Thank you.

Judge:

Thank you. So, I take it nothing further from the Crown?

REPLY FOR CROWN BY CNSL C. JOHNSON:

Johnson:

No, I simply just in response to Mr. Fox, what appears to be his main point, I agree with him, I think I've already said this in any event, that the Crown isn't in a position to establish when --

Judge:

Right.

Johnson:

-- the website was created and/or published, but the Crown does say the part of the letter that I referred to establishes that Mr. Fox participated in publishing things on the website while on probation after being in jail.

Judge:

Thank you.

Johnson:

Thank you.

Judge:

Please bear with me, then, for a few moments, please.

[REASONS FOR JUDGMENT]

Johnson:

Thank you, Your Honour. I wish to pass up to you a copy of Mr. Fox's criminal record and I've shown that to him and he's admitted that those are his convictions.

Judge:

Thank you. And that's correct, is it, Mr. Fox?

Fox:

Yes. Yes, it is.

Judge:

Thank you. That will be Exhibit 1 at sentencing.

EXHIBIT 1 (on Sentence): JUSTIN conviction list re Patrick Henry Fox

SUBMISSIONS ON SENTENCE FOR CROWN BY CNSL C. JOHNSON:

Johnson:

And I'll say at the outset, Your Honour, that the Crown seeks a sentence of six months imprisonment, but I will also say that Mr. Fox has done more than that in time credited and I'll get to that in a moment, but you'll see from the record and from various calculations the probation order that was -- that he's just been found guilty of breaching, by my calculation is in effect until December of 2021, so for another year and four months or so.

And then more recently in June of this year Mr. Fox was convicted of two breaches, which I was not the Crown on those matters. I understand that that involved allegations of him trying to get into the United States, and on that occasion he received a jail sentence and used up some of the time served, but he also received 18 months probation and that probation order also expires in December of 2021.

With respect to this matter, then, I'm seeking a sentence of six months in jail and I will say that on the last trial date, I believe it was July the 6th that we were here, the sheriffs were unable to produce Mr. Fox who wanted to do his trial in person and -- because somebody at the correction centre had, I believe, tested positive for COVID.

Judge:

Okay. Thank you.

Johnson:

So, on that day they were unable to transport him. He then appeared by video is my recollection and we were able to get quite an early trial date which is today's date. But the reason I'm raising that is because on that date on July the 6th I did all the calculations and Mr. Fox had -- putting aside the time served that was used for his June matters, he had at that point in time served just over four months with respect to this file to which, if one gives him time and a half, that would've been six months. So, he's now well over that.

Judge:

Okay.

Johnson:

So, I'm still maintaining the same sentencing position, but I'm also going to ask Your Honour to consider a short term of probation for six months and aside from the statutory condition, the only condition I would ask is -- and I'm in Your Honour's hands on this, but it seems that Mr. Fox did not get the message that he needs to remove this website, and so I'm going to ask Your Honour to consider a condition very similar to the one that was imposed on his previous order which I believe is --

Judge:

Thirteen?

Johnson:

-- number 13.

This request shows that both the Crown and Phillips understood Condition 13 of the Justice Holmes order to impose a requirement on me only for the 24 hours immediately following my release from custody. Which means the condition Judge Phillips ordered would, likewise, only impose an obligation on me for the first 48 hours following my release from custody.

This is extremely significant with respect to my subsequent trials before Judge Rideout and Judge Denhoff, because in those trial Johnson argues that the wording of that condition required me to take down the website and to keep it down for the entire duration of the period of probation. However, if that were the case then there would be no need for Crown to request this probation condition because it would just be duplicating what Condition 13 of the Holmes order was still, supposedly, imposing.

Unfortunately, I don't -- I now don't have a copy, but --

Judge:

Okay.

Johnson:

-- of course I can't ask that it apply to the person by the name of James Pendleton or S. because neither of those --

Judge:

Okay, yes.

Johnson:

And so, the other thing that occurs to me is that I'd be happy or content if it said 48 hours rather than 24 hours.

Judge:

Okay, thank you.

Johnson:

And those are my submissions.

Judge:

Thank you. Just bear with me a moment, then, please.

Johnson:

But I wouldn't -- I'll say I'm not asking for reporting or anything of that nature.

Judge:

Good. Okay, thank you. Mr. Fox, if you'd stand, then, again, sir? With respect, then, I'm now to sentence you on Count 1 on the information. You've heard the prosecutor reference your criminal record which has been put before me at this sentencing hearing. Let me just ask you some questions. If you like, you can say anything you want about the criminal record. You don't have to. It's kind of a document that probably speaks for itself. You can if you want.

But if there's anything else you'd like to say to the court before I sentence you of a personal nature or about the circumstances, what you say would be an appropriate sentence, this is your opportunity to do that.

SUBMISSIONS ON SENTENCE BY THE ACCUSED:

Fox:

Okay. First, I oppose the Crown seeking six months.

Judge:

Okay.

Fox:

It baffles me that I would be sentenced to 12 months for the first probation violation and then for a subsequent probation violation I would get half as much time.

Judge:

Okay.

Fox:

I find that very troubling. Since I've already been convicted of violating probation once before and sentenced to 12 months, it seems to me that I should be sentenced to at least 12 months this time, shouldn't I? I mean, clearly I'm not learning my lesson.

I'm not saying this to be sarcastic or to make light of the situation. I'm just trying to keep things consistent. I guess we could argue that on the first probation violation there was two counts and now there's only one count and maybe that's why it's six months, but regardless.

And with respect to the probation condition about taking down the website, with all due respect to everybody who is here there is absolutely no way the website is going to come down on my release from custody,

It is important to notice that I'm not saying I'm not going to do anything to try to take down the website. I say it's not going to come down. Because, of course, I have absolutely no control over it. I'm actually not the one that put it back online in October 2019, and the person who is keeping it online is doing so for the express purpose of causing my perpetual incarceration. Therefore, any punishment the Crown and the court impose on me is not going to cause the website to shut down - in fact, that will only ensure it remains online.

Notice that in all of these prosecutions against me related to either putting the website back online or failing to take the website down, the police and the Crown claim they have done absolutely nothing to determine who is actually keeping the website online.

and I don't expect to be released from custody before the end of December 2021, end of the probation.

But on my release from custody, I intend to return to the United States, and so I don't see how any probation conditions imposed here at this time are going to make any difference at that point. So, regardless of what the decision is on that, the website's not going to come down. It's not going to go away. If I need to transfer ownership of the website to another party so that I technically don't own it at the time, so be it, but that's all.

Judge:

Okay.

Fox:

And I know I just shot myself in the foot and said all the wrong stuff and made everybody upset, but…

Judge:

Thank you. Just bear with me a moment, then, please.

Fox:

Sure.

Johnson:

Your Honour, would it be of any assistance for you to have the reasons for sentence from Madam Justice Holmes?

Judge:

It may be that I should read those before I pronounce my sentence.

Johnson:

They're not too lengthy, but --

Judge:

Thank you. Just give me one moment, please.

REPLY ON SENTENCE FOR CROWN BY CNSL C. JOHNSON:

Johnson:

And just in response to Mr. Fox's comments, every offence and every offender are, of course, unique and I was assigned this file and I made the determination as to what sentence I would seek and the other file was conducted by other individuals and the facts were different. So --

Judge:

Thank you. Was there something else you wanted to add, Mr. Fox? Go ahead if you do.

SUBMISSIONS ON SENTENCE BY THE ACCUSED, CONTINUING:

Fox:

Yes, I just wanted to point out that with the previous probation conditions that I was accused of violating, there was nobody that was supposedly being harmed by that violation whereas in this case it could be argued that Count 1 [indiscernible] --

Judge:

Okay.

Fox:

-- being harmed by the website being online, so I think that this is a much more serious one than the previous one.

There was another thing that Mr. Johnson just -- I can't remember now, that I wanted to respond to.

REPLY ON SENTENCE FOR CROWN BY CNSL C. JOHNSON, CONTINUING:

Johnson:

Sorry, Your Honour, just -- I hate to keep doing this. I'll endeavour that this will be the last occasion, but Mr. Fox did say that he anticipates being in custody until December. I'm not quite sure why that is because he -- if Your Honour accepts my sentencing submission, he would be released today.

Judge:

Oh, okay. Thank you for clarifying that.

Johnson:

Because there's no other outstanding --

Fox:

No, no. I'm being held on another --

Johnson:

There was an allegation in Port Coquitlam.

Fox:

There still is.

Johnson:

The Crown has indicated to me some weeks ago that they were staying that.

Fox:

Yeah, but that hasn't happened yet.

Johnson:

Oh, that may not --

Judge:

Oh, okay. Thank you for that information, both Mr. Johnson and Mr. Fox. Just give me one moment, then, please.

Fox:

Yes, I go back on -- oh, last week we had a status conference. They kept trying to talk me into applying for bail and I said no, I'm just going to stay here until December and that's how we left it there. As far as I know it's going to continue in December, but --

Johnson:

Sorry, Your Honour, there is just a -- there is a charge in Port Coquitlam. I've been advised by the Crown that they will not be proceeding on that. That I gather from Mr. Fox hasn't happened yet, so he may still be in custody for some period of time.

Fox:

Yeah. The reason that I think I'm still going to be in custody from --

Judge:

What I'm going to do, then, is just take five minutes --

Fox:

Sure.

Judge:

-- to read Justice Holmes' decision. I'm just going to stand down. Mr. Registrar, I'll just be outside here. Just come and get me in five minutes. Thank you. Sorry, Mr. Fox?

SUBMISSIONS ON SENTENCE BY THE ACCUSED, CONTINUING:

Fox:

I do remember what I wanted to mention. With respect to Justice Holmes' reasons for sentencing there --

Judge:

Yes.

Fox:

-- bear in mind the transcripts and the recordings of all of those sentencing proceedings have also been published and they clearly prove that what she's saying in there does not correspond to what was said in the court and the evidence that was presented.

Judge:

Okay. And I think the difficulty, Mr. Fox, with that is this is not an appeal to my understanding, so that's the decision I rely upon, yes. If you dispute the evidence, the route is an appeal at that point. Thank you.

(PROCEEDINGS ADJOURNED)

(PROCEEDINGS RECONVENED)

Judge:

Thank you.

[REASONS FOR SENTENCE]

Johnson:

Thank you, Your Honour.

Judge:

Mr. Registrar can assist if there's any further work we can do. Thank you.

(PROCEEDINGS CONCLUDED)

Transcriber: S. Houde

Transcript of Trial & Sentencing Proceedings (2020-08-19)

INDEX

PROCEEDINGS AT TRIAL

PROCEEDINGS AT SENTENCE

EXHIBITS

EXHIBITS AT TRIAL

EXHIBITS AT SENTENCE

RULINGS