Reasons for Judgment on Appeal (2022-11-25)

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COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Fox,
2022 BCCA 404

Date: 20221125

Dockets: CA46979; CA47391

Docket: CA46979

Between:

Rex

Respondent

And

Patrick Henry Fox

Appellant

-and-

Docket: CA47391

Between:

Rex

Respondent

And

Patrick Henry Fox

Appellant

Before:

The Honourable Madam Justice Sunni Stromberg-Stein
The Honourable Mr. Justice John L. Hunter
The Honourable Madam Justice Karen Horsman

On appeal from: Orders of the Provincial Court of British Columbia, dated August 19, 2020 (conviction) (R. v. Fox, Vancouver Docket 244069-6-B), and November 26, 2020 (conviction) (R. v. Fox, Vancouver Docket 244069-7-B).

Oral Reasons for Judgment

The Appellant, appearing in person: Patrick Fox

Counsel for the Respondent: David Layton, K.C.

Place and Date of Hearing: Vancouver, British Columbia
November 25, 2022

Place and Date of Judgment: Vancouver, British Columbia
November 25, 2022

This was the first time I had an appeal hearing in BC. Since I had been in custody for almost the entire time leading up to this, I did not have access to any research or educational material to learn the process. At the hearing I had no idea what I was supposed to say or do. I informed the Court of this right at the outset.

Prior to the hearing, I had been informed that if I wanted to respond to any of the information in the Crown's factum, I could file a Reply Factum, but it could only be up to five pages in length. Considering the huge number of misrepresentations in the Crown's factum, it was impossible to respond to all of them in such a short amount of space. But I had no idea that the appeal hearing was the appropriate venue for me to present my arguments to rebut the Crown's false claims and bullshit arguments from their factum. And, of course, Crown Counsel didn't bother to let me know this. I was under the impression that that had to be done in my reply factum.

Had BC Corrections provided access to legal treatises on preparing and arguing an appeal, I could have educated myself on the purpose and process of the appeal hearing and actually had some idea what I was doing.

Summary:

Appeals CA46979 and CA47391 arising from convictions for breach of probation orders. The appellant was found guilty of criminally harassing his former wife by creating a website in her name that was designed to denigrate, humiliate and intimidate her with the goal of ruining her life and causing her to commit suicide. The first probation order prohibited the appellant from publishing, disseminating, or making publicly available any information about his ex-wife. The second probation order required the appellant within 48 hours of his release from custody to take steps to ensure any website relating to his former wife was no longer available on the internet or otherwise. Held: appeals dismissed. There is no merit to either appeal. The appellant admitted to creating and publishing the website containing information about his former wife and maintained he would never take it down. The appellant was convicted by his own words.

[1]

STROMBERG-STEIN J.A.: These are the reasons of the Court.

[2]

In 2017, a jury found Patrick Fox guilty of criminally harassing his former spouse and of being in possession of firearms in an unauthorized place. Underlying his conviction was Mr. Fox's creation of a website in the name of his former spouse, which was designed to denigrate, humiliate and intimidate her, and which contained private information about her family, friends, and associates. Mr. Fox's stated goal was to ruin her life and cause her to commit suicide.

[3]

On November 10, 2017, now Associate Chief Justice Holmes sentenced Mr. Fox to a period of incarceration followed by three years' probation (the "Holmes Order"). Condition 12 of the Holmes Order prohibited Mr. Fox from publishing, disseminating, or making publicly available any information about Mr. Fox's ex-wife. Mr. Fox was released on December 30, 2018, and the Holmes Order came into effect.

[4]

On March 12 or 13, 2019, someone notified the media and Crown counsel that there was a new website that replicated the content of the earlier website, and added allegations of corruption in relation to Mr. Fox's criminal harassment trial. Disclosure materials and transcripts from the jury trial were posted on the website. On March 18, 2019, Vancouver Police Department Detective Constable ("DC") Fontana confirmed that the website was publicly accessible.

[5]

In June 2019, DC Fontana received a letter dated June 6 from Mr. Fox indicating that he had created a new website hosted in the name of his ex-wife under a new domain. He asked to be charged with breach of probation and criminal harassment.

[6]

On June 24, 2019, DC Fontana interviewed Mr. Fox. During this interview, Mr. Fox advised DC Fontana that he had created and was running or maintaining the website.

[7]

On December 4, 2019, Mr. Fox was charged with breaching the Holmes Order between March 7 and March 21, 2019, by making publicly available the website domain.

[8]

At the trial of the breach of the Holmes Order before Judge Phillips, Mr. Fox admitted he created and published the website, and was bound by the Holmes Order during the period covered by the Information. DC Fontana was the sole witness at trial. Mr. Fox did not testify. His defence was the Crown could not prove whether he published the website before the probation order came into effect, and his failure to take down the website was not a breach of the order. The position of the Crown was that it did not matter when the website was published, because it was "publicly available" during the relevant time described in the information.

My response to this argument by the Crown was that a probation order can only prohibit a person from engaging in specified conduct (or require a person to engage in specified conduct). It cannot prohibit the result of the person's prior conduct. And the probation condition in question here prohibited me from engaging in the conduct of making the website publicly available. Once the act of making the website publicly available had been completed I was no longer engaging in that conduct. And since that conduct occurred before the probation order came into effect it could not be a breach of the condition. The condition I was charged with did not require me to take down anything which was published prior to the order coming into effect - that is what Condition 13 required. The fact that the website remained publicly available after I had completed the act of making it publicly available does not mean that I continued to engage in the act of making it publicly available.

Of course, the Court of Appeal didn't make any mention of these arguments I had raised. Interestingly though, you may notice much of what the Court of Appeal says in these Reasons was, literally, just copied verbatim from the Crown's arguments.

[9]

Judge Phillips concluded the Crown had proved the probation breach beyond a reasonable doubt,

However, Judge Phillips acknowledged that the Crown failed to prove that the conduct which was prohibited by the condition I was charged with breaching occurred while the probation order was in effect. One of the essential elements of the offense, which the Crown is required to prove, is that the conduct which constitutes the breach accurred while the probation order was actually in effect.

How, you wonder, can Phillips, on the one hand, admit the Crown failed to establish whether the conduct occurred while I was on probation; but then, on the other hand, find me guilty of breaching the probation order? Yes, good question. And since that was one of the major grounds I raised on appeal, how can it be that the Court of Appeal completely ignored all of that - not a single mention of the fact that I even raised this issue? Keep reading, you will see there is not a single mention of me raising this issue anywhere in the BCCA's ruling.

as the probation condition prohibiting the making of the information in issue publicly available "directly or indirectly … in any manner whatsoever".

It's interesting that the BCCA quoted the fragment "directly or indirectly … in any manner whatsoever" from Judge Phillips' Reasons for Judgment, because it has absolutely nothing to do with whether or not the conduct occurred while I was on probataion. It doesn't matter in the slightest if I was the one who put the website online or uploaded any of the content to it - as long as I didn't do it while I was on probation. It doesn't matter whether it was done "directly or indirectly" or "in any manner whatsoever", because I wasn't on probation when it occurred.

The Court of Appeal doesn't make a single mention of the fact that the conduct prohibited by the probation condition occurred outside of the period of probation because that one simple fact would completely destroy the Court's ruling and expose them for the corrupt, lying chumps they are.

Interestingly, the Crown did argue, in it's factum, that by putting the website online I was engaging in an "ongoing offense" such that as long as the website remained online I continued to engage in the act of "making it available". The Crown argued that in that way I continued to engage in the conduct prohibited by Condition 12 even after I had actually completed the act. And since the website remained online until after the probation order came into effect, that means I engaged in the act while the probation order was in effect. I argued that the "ongoing offense" doctrine wouldn't apply here because at the time I engaged in the conduct it was not prohibited - it was not an offense. For the "ongoing offense" doctrine to apply, the conduct would have had to have been prohibited at the time I engaged in. The Court of Appeal made no mention of these arguments, which tells me the realize I was right and the Crown's "ongoing offense" argument was bullshit. For that matter, you'll notice the BCCA doesn't make any mention of any of the legal arguments raised by the Crown in their factum. In other words, the Crown had not one legitimate legal argument to support it's opposition to my appeal. And the only way the BCCA could rule in favor of the Crown was to ignore my arguments, ignore the facts, and claim I made arguments I never made.

On August 19, 2020, Judge Phillips convicted Mr. Fox of breaching the Holmes Order, and her reasons give rise to Mr. Fox's conviction appeal No. CA46979.

[10]

We will now consider the merits of the appeal from Phillips P.C.J., as this impacts the appeal from Rideout P.C.J. Mr. Fox argues his conviction is unreasonable as the judge erred in law in interpreting the probation order, misapprehended evidence, and provided insufficient reasons. In our view, there is no merit to any of these grounds of appeal.

[11]

There was no dispute the probation order was effective on December 30, 2018. There is no dispute the Crown could not prove when anything was posted on the website, including if it was before the probation order came into effect. The dispute revolved around the interpretation of Condition 12 of the Holmes Order.

Okay so the Court says the issue in dispute is related to the interpretation of Condition 12 of the Jusitce Holmes probation order, but they don't say what the conflicting interpreations are. As far as I can tell there is no dispute regarding the interpretation of Condition 12. The Crown and I agree it is clear: It prohibits me from engaging in the acts of disseminating, distributing, publishing or make publicly available any information about Capuano while the probation order is in effect.

I say I engaged in the prohibited conduct but I did so before the probation order came into effect and therefore it could not constitute a breach of the probation condition. The Crown acknowledges that the conduct occurred before the order came into effect, but argues that because the result of having engaged in that conduct (i.e. the website remained publicly available) persisted until after the probation order came into efffect it's the same as if I had done it after the order came into effect. And my response to that is: Fuck off, that's what Condition 13 was intended to address but I wasn't charged with breaching Condition 13 so you're fucked.

Contrary to Mr. Fox's view, there was overwhelming evidence in support of Judge Phillips' conclusion Mr. Fox made information referring to his ex-wife publicly available "directly or indirectly … in any manner whatsoever" during the period of his probation, and specifically between March 7 and March 21, 2019, as indicated on the Information.

Really? Then why does the BCCA not mention a single piece of that "overwhelming evidence"? What evidence are they referring to? There was not a single piece of evidence that I made any information available after the probation order came into effect.

To make something available means to engage in particular conduct which causes something which was not available to become available. Once it is available, then for it to remain available does not mean that you are continuing to engage in the conduct of making it available. If that were the case then Condition 13 of the Holmes order would not be required because anything I published prior to the order coming into effect would be covered by the "ongoing offense" doctrine and Condition 12 would require me to remove it from public accessibility.

This is a perfect example of how completely delusional the BC court judges are. They think that if they merely state "there was overwhelming evidence" then that becomes a fact, it becomes reality. But the problem for them is that now I've published all of the transcripts, the trial exhibits, the disclosure material, the appeal factums, et cetera, et cetera, et cetera, showing how utterly full of shit they are! So, where's this "overwhelming evidence", huh? Fucking lying, sleazy bastards.

The website contained essentially the same content as the website that led to Mr. Fox's criminal harassment conviction. In his police interview with DC Fontana, Mr. Fox admitted he was running or maintaining the website; his letter to DC Fontana suggested he was involved in running or maintaining the website, he admitted publishing the website and creating some of the content, and he asked to be charged with criminal harassment.

Is this the "overwhelming evidence" the Court referred to above? There is no evidence of a breach of probation in here because there is no evidence that any of this occurred while the probation order was in effect! Notice how the Court says I admitted to these things, but they don't say when I did them. I admitted to doing perfectly legal stuff, while I wasn't on probation. There's no dispute that I created the website, or that I published the website, but none of that is illegal. It's only prohibited by the probation order, so as long as the probation order wasn't in effect, then I wasn't prohibited from doing it, and there was no breach. It's only a breach if I do it while I'm on probation! Is the Court of Appeal presided over by retards? Or are they just playing that game where they pretend to not understand, in order to justify an entirely unjustifiable ruling?

The evidence was overwehlming, from the mouth of Mr. Fox, that he breached Condition 12 of the Holmes Order.

What? Is it really necessary for me to keep saying it? The stuff I admitted to doing was not prohibited at the time I did it; it was not a breach of the probation condition because the probation condition was not in effect. Why are the Court of Appeal justices even making these kinds of claims? Do they not realize how, either: amazingly idiotic; or amazingly corrupt this is making them look? There is absolutely no way they can possibly believe the bullshit they're spewing. What they're doing here is reminiscent of being in kindergarten, covering your ears, and repeating "I know you are but what am I?"

When you get right down to it, the real reason these jackasses are fighting me so hard and ruling against me using such pathetic tactics is because I'm making them look like a bunch of moronic chumps, a bunch of useless, ineffectual, impotent, powerless, imbeciles. They are pissed off because they believe I have been able to legitimately get around the tyrannical and completely unjustified restrictions they've been trying to force on me for the past four years. And it burns their asses that they're not able to make me quiver before them and kiss their pasty, puckered anuses. Well, maybe if they weren't so fucking incompetent they'd be able to write a probation condition that could actually be enforced legally rather than having to use these stupid, bullshit tactics.

[12]

The judge, in her reasons for conviction, misquoted Mr. Fox's comment in his letter to DC Fontana: "Particularly, since my publishing the new website, I have engaged in exactly the same conduct". In fact, Mr. Fox wrote: "Particularly, since by publishing the new website, I have engaged in exactly the same conduct". It is a word without a difference in the context of the meaning of the sentence, and does not change the meaning of what he wrote. In our view, this error did not play an essential role in the judge's reasoning process in convicting Mr. Fox.

[13]

We would dimiss Mr. Fox's appeal from conviction on CA46979.

[14]

Judge Phillips sentenced Mr. Fox to 6 months' incarceration and 6 months' probation (the "Phillips Order"). The Phillips Order included a condition that required Mr. Fox to take down the website within 48 hours of his release from custody, as follows:

Within 48 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, picture which refer to or depict, by name or description, [your former spouse] or any of her friends, relatives[,] employers or co workers, including the websites published under the domain [website domain name deleted] and [website domain name deleted] are no longer available via the [I]nternet or by any other means.

This is actually Condition 13 of the Justice Holmes order simply re-imposed in the Phillips order. The fact that the Crown requested to re-impose that same condition and that Phillips agreed, proves that the Crown and Phillips interpreted Condition 13 of the Holmes order as only imposing a requirement on me for the 24 hours following my release from custody, NOT for the entire duration of the order. If they interpreted it as imposing a requirement on me for the entire duration of the order then they would not re-impose it in the Phillips order because it would still be in effect from the Holmes order. It would be completely unnecessary and pointless.

This further proves that the BCCA is full of shit at paragraph 28 of this RFJ. The fact that the Crown and Judge Phillips had to re-impose this condition in order for it to have any purpose means that the Crown's later interpretation of the wording of the condition (at the Judge Rideout and Judge Denhoff trials), which is completely contrary to their interpretation of it at the Judge Phillips trial, must be complete bullshit. And the BCCA adopted that contradictory, bullshit interpretation herein, at paragraph 28. Therefore, the Crown and the BCCA justices are bull of shit and they know it.

[15]

We would note Mr. Fox has filed a notice of abandonment in relation to his sentence appeal.

[16]

On August 20, 2020, Mr. Fox was released from custody and the Phillips Order came into effect.

[17]

On September 17, 2020, Mr. Fox was arrested and charged with breaching the Phillips Order for failing to take down the website between August 19, 2020, and September 16, 2020. Mr. Fox was interviewed by DC Dent on September 17, 2020. The interview was video and audio-recorded.

[18]

At the trial on November 26, 2020, DC Dent testified that on September 16, 2020, he accessed one of the website domain names referred to in the Phillips Order. Its home page contained an entry dated August 19, 2020, at 1:53 p.m., which was written as a first person letter to David Eby, then Attorney General of British Columbia. The entry referred to the proceedings before Phillips P.C.J., and referred to the probation condition that required he take down the website within 48 hours of his release: "I told the judge 'that's just not going to happen'." He emphasized "how ineffectual and impotent the Canadian justice system is. They can't even make a little pissant nobody like myself take down a website. They can lock me up for [the] rest of my life, but I will never take down the website." He noted 48 hours had passed and the website was still online. He referred to the R. v. Fox section as exposing corruption and collusion of Crown, defence counsel and the judge. He indicated by the time Mr. Eby read the letter "I will probably be back in custody, but in case you haven't figured it out, I just don't give a fuck." Mr. Fox contends this letter was written the day before the probation order came into effect. We would note the accuracy of the date on the letter was not established at trial.

To be fair, Layton pointed out in his response factum, that the date and time on the article was 2020-08-19 at 1:53pm, which was before the trial and sentencing had completed, and based on that the date and time could not have been accurate (paragraphs 100(a) and (b)). I do agree with him on that point. I hadn't previously noticed the time. I had only paid attention at the date. Once I became aware of this I abandoned any arguments which were based on the article being posted prior to the order coming into effect.

You may think, from this statement by the BCCA, that they must have reviewed my factum, otherwise how would they know I was making this claim. But in fact, they pulled this from paragraph 96 of the Crown's factum. And their comment about the accuracy of the date is also from paragraphs 100(a) and (b) of the Crown's factum.

[19]

With the agreement of Mr. Fox, rather than playing the video of his police interview, DC Dent was permitted to testify about statements recorded in a Task Action Report that Mr. Fox made during the 65-minute interview.

This absolutely is false. I never agreed to anything like this. I would certainly never agree to have a trial based solely on witness testimony, when there is concrete, physical evidence about the very things the witness will be testifying to. That's ludicrous! People lie, they forget, their memories are often unreliable and subject to their perceptions, values, and beliefs. I never have, and never will consider witness testimony "evidence".

This claim, by the BCCA, was taken from paragraphs 30 and 34 of the Crown's Factum. And the Crown seems to be relying on a statement made by Johnson at the trial, that I had said "we don't need to play the entire recording" of the interview (p3l24-25). But in that, I was not agreeing to proceed without playing any of the recording, I was agreeing that it wasn't necessary to play the entire recording - because there were significant chunks where I was alone in the interrogation room, and where there was nothing relevant or interesting being discussed.

If the Court of Appeal had actually reviewed the transcript as they claim they had, then I believe they understood my actual statements correctly, and they are intentionally misrepresenting the facts to fit the ruling they want to impose. But more likely, they did not review the transcript and their decision was based entirely on the Crown's factum.

During this interview, Mr. Fox makes various inculpatory statements. He now maintains DC Dent misstated what he said during the interview, and his inculpatory statements were said in a sarcastic and joking manner.

Yes, and I even provided the Court of Appeal, a detailed report and analysis of each of the instances I was referring to, attached as Exhibit 'C' and Exhibit 'D', to my Affidavit #1 on this appeal. Go ahead, have a look for yourself.

Moreover, the Court of Appeal is wrong in saying "he now maintains…". I have maintained all of this all along. The audio/video recording of the Dent interview was provided to me less than three days before the trial, then taken back from me the day after the trial. From the time of the trial until the time of the sentencing (from December 2020 through April 2021), I repeatedly requested the Crown provide me the disclosure material, and in particular the Dent interview video, so I could use it to prepare sentencing submissions (2021-02-02 p2l21-33, p3l20-28, p4l1-6, 2021-02-03 p1l43-p40l10, 2021-04-12 p3l31-p45l23, p46l15-23), and I even expressly stated that I needed the video in order to show that my statements in the interview were almost all joking and sarcastic, and not at all as Johnson and Dent had portrayed them at the trial.

However, the Division has viewed the video, which forms part of the new evidence Mr. Fox seeks to adduce on appeal, and Mr. Fox's assertions are not accurate.

Not surprisingly, the court is making an incredibly vague and broad statement and refusing to provide any specifics. They do not refer to a single specific instance I pointed out in the exhibits to my affidavit. Because, again, they are full of crap. They know that if they publicly try to claim that any of the specific instances I referred to in my affidavit "are not accurate" they will promply be exposed for being full of crap.

Do you notice, that the courts and judges in BC publish their "findings" about evidence and about the party's submissions, but they never make public that evidence or those submissions? That, my friends, is what this website is doing - by publishing the judges' findings and rulings and reasons, together with the actual evidence and the transcripts and recordings of what was actually said during the submissions, you are able to see for yourself how full of shit the BC justice system is. How the judges simply ignore whatever evidence and arguments don't fit with the ruling they want to impose.

There were additional statements made in the interview, which made it obvious that I was not being serious (see Exhibit 'D' of my Affidavit #1), which the Crown did not refer to in their factum. Not surprisingly, the Court of Appeal also made absolutely no mention of those statements in their Reasons for Judgment - because the BCCA never even bothered to review the material I had submitted, they only read the Crown's factum!

This paragraph lists what the Court of Appeal claims are the inculpatory statements I made during the Dent interview. You may notice that every single statement the Court refers to in this paragraph is actually just copied from the Crown's Factum (at paragraph 45). These statements were not retrieved by the BCCA, from the actual interview. That is why, as you may notice, the BCCA is making the same misinterpretations as the Crown made in their factum.

As you can see, every point the BCCA brings up in this paragraph is bullshit. And in each instance, the court completely ignored or disregarded my submissions on the respective matter. Of course, that would make sense because the Court didn't even review my factum, or any of my supporting materials. Any arguments I made which were not referenced in the Crown's factum were not even known to the Court.

[20]

At the commencement of the interview, Mr. Fox told DC Dent it was important to have a good quality audio and video recording of the interview so he could put it on the website later; he admitted the website had been updated by someone, and referred to a number of details on the website, but he did not admit to personally posting anything; he said a lot more content needed to be added to the website, but that it was very time consuming and "I haven't been the most productive";

Taken from paragraph 45(i) of the Crown's Factum.

That is false. On direct, Johnson asked Dent whether I "referenced additional content for the website", and Dent responded I had stated "there's a lot more content that needs to be added and it's going to go up" (p15l13-17). But in fact, in the interview all I said was:

"there is a lot more content still … that needs to be put on" (2020-09-17 Interview TR p41l29-30).
"I've not been the most productive, but … there's a lot more content … and it's going to go up" (2020-09-17 Interview TR p42l5-6).
"so, yes, … what you should be aware of is that there's a lot more content" (2020-09-17 Interview TR p45l5-6)

But at no time did I say that I was going to put any of that content on the desicapuano website. I only said there was a lot more content and that it was going to be "put on" and "go up". Since I have multiple websites, one of which is focused entirely on exposing the corruption and misconduct that has been going on in these prosecutions against me, and which is where I have been publishing all of the disclosure material, the transcripts, the audio/video recordings, and everything else related to my cases, it would be reasonable that that is the website I was referring to.

Given that the Court of Appeal claims they'd reviewed all of the material I was seeking to add as new evidence on appeal, that means they reviewed the Dent interview, which means they realize Dent's testimony on this matter was false or, at least, misleading. But regardless, the fact is, I never said what Johnson, Dent, and the Court of Appeal claim I said, and that's proven by the transcript and the recordings of the interview.

he said he had been ordered to take down the website but he believed it was not illegal and it exposes misconduct and corruption in the criminal justice system and of his "evil, horrible cunt of an ex-wife";

Taken from paragraph 45(c) of the Crown's Factum.

There are actually two unrelated points here which the Court of Appeal is combining to try to create a false impression. The Crown used the same tactic at the trial (p12l10-29). They're attempting to create the false association that even though I was ordered to take down the website, the reason I hadn't was because I believed it was not illegal and because it is being used to expose misconduct and corruption, and the bad conduct of Capuano. But that's gibberish. If you look at the actual interview (Interview TR p7l3-22), you see that Dent asked me if there is a reason I hadn't taken it down. Then I correct him and tell him I can't say there's a reason I haven't taken it down, I can only say there is a reason it hasn't been taken down (because since I have no involvement with, and no influence over it, I cannot take it down). I then say that the reason I believe it hasn't been taken down, by whoever would be running it, is that it's exposing corruption and misconduct, et cetera. This exact issue was addressed in Exhibit 'C' of my Affidavit #1, which the Court of Appeal claim they reviewed. Yet, then they make no mention of it in their Reasons and, instead, essentially just copied the Crown's submission verbatim. Interesting, huh?

It should be noted that the transcript of the interview doesn't capture emphasis, inflection, or gestures, so if you only look at the words which I stated in the transcript, namely "I can't say that there's a reason I haven't taken it down. I can say that there is a reason it hasn't been taken down." I would seem to be contradicting myself and making no sense. However if you watch the video and hear the way I'm emphasizing particular words then it makes a lot more sense clip from VPD interrogation video. But again, the BCCA claims they reviewed all of this before making their ruling so we can assume they were aware of the truth and the facts and they just chose to ignore them.

he had been waiting to be arrested and was suprised it took the police so long; he had viewed the access logs for the website and could see that various city, police and government agencies had visited it, but he believed a website's access logs could be seen by anyone clicking on the website,

Taken from paragraph 45(e) of the Crown's Factum.

Yes, the access logs for the desicapuano.com site were being published to the site, so everyone in the world had access to them. But I never said I believed every website's access logs were publicly accessible. In fact, a website's access logs are not, be default, publicly accessible. However, anyone with administrative access to a website can copy the access logs to a publicly accessible directory on the site, thereby making them publicly accessible.

I questioned Dent about this in my cross-examination (p19l41-p20l3). I asked him if the access logs for the desicapuano site, specifically, had been made publicly accessible. He admitted he had no knowledge of that.

This was also addressed in Section 6 of Exhibit 'C' of my Affidavit #1, which the BCCA claimed they had reviewed.

Mr. Fox said he wanted the government to admit that everything on his website is true,

Taken from paragraph 45(f) of the Crown's factum.

That is false. That is what Dent testified at the trial (p13l40-41), but what I actually said in the interview was that I wanted the BC government to admit that everything I claimed in my affidavit which is on the website, regarding the corruption and misconduct which occurred at my criminal harassment trial, is true (Interview TR p18l19-21). The Crown and the BCCA are misrepresenting my statement as though wanted the BC government to admit everything on the website is true.

And again, this was also covered in Section 7 of Exhibit 'C' of my Affidavit #1, which the Court of Appeal claimed they had reviewed. But again, in their Reasons the Court of Appeal only referred to the Crown's submissions on the matter. There is nothing mentioned about the fact that I also addressed it.

It is also extremely important that this entire discussion, in the interview, was, at Dent's suggestion, hypothetical (Interview TR p18l14). That was also pointed out in Exhibit 'C'. But again, no mention of that by the BCCA.

for the government to admit he did not commit criminal harassment and overturn all his convictions, and for his ex-wife to get throat cancer and to die a slow, miserable death. He said that never in his life would he take down the website, and locking him up in jail was not going to stop or change anything.

Taken from paragraph 45(g) of the Crown's Factum.

The BCCA is again relying on Dent's testimony (p14l39-40, p23l5-8), and ignoring what was actually stated in the interview, and the context. And again, this was addressed at length in Section 8 of Exhibit 'C' of my Affidavit #1. But again, the Court of Appeal is relying completely, 100% on the Crown's submissions, and completely ignoring my submissions.

Saying that locking me up in jail is not going to stop or change anything is simply a statement of fact. Since I'm not the one keeping the website online, then punishing me for not taking the website down is not going to cause whoever is keeping the website online to take it down - particularly, since they are keeping it online so that I will be locked up in jail perpetually.

He stated he was a software engineer and evidenced great detail about how to remove a website from the internet.

[21]

In cross-examination, DC Dent acknowledged he could not say whether Mr. Fox had transferred ownership or control of the website to someone else after the probation order was made on August 19, 2020.

That is false. It was about whether ownership was transferred before the probation order came into effect on 2020-08-20, not about whether it was transferred after the order was made on 2020-08-19.

However, in actuality, there was no such discussion during the trial. The closest thing in the transcript is where I asked Dent about whether I told him I had transferred ownership of the website to a third party at some point, and he responded he didn't recall (p18l32-p19l2). Other than that there is absolutely no other mention of transferring ownership. So, where the BCCA is getting this false claim from, I have no idea.

Interestingly, at paragraph 53 of the Crown's factum, the Crown claims I asked Dent, on cross, if I had said I still owned the website subsequent to August 20, 2020; and the Crown claims Dent did not recall if I had said I had transferred ownership or control of the website to another party at some point. It seems that perhaps the BCCA fused those two statements by the Crown into the false statement they then put into their Reasons. Yet again, more proof that the BCCA only reviewed the Crown's material, and made their ruling based solely on the Crown's material. I'm really having difficulty distinguishing between what Canadians call "justice" and what the rest of the universe calls "tyranny".

[22]

Mr. Fox did not testify. He argued at trial that he never admitted owning or controlling the website or publishing anything on it. He submitted that any statements he made about posting more information on the website reflected his future plans once the probation order expired.

I cannot find a source for this claim by the BCCA. There is no record of me making such a submission.

The closest thing I could find would be during closing submissions at the trial, when I pointed out that with respect to any comments I may have made to Dent about having more material to publish, when the probation orders expire and I return to my country of origin, I will no longer be prohibited from publishing anything and I will no longer be within the jurisdiction of the BC courts (p28l42-p29l4).

And, at paragraph 62 of it's factum, the Crown claimed I said, as for my comments to Dent about having more material to add to the website, I would be allowed to do so after the probation order expired, so that statement was not incriminating (p28l42-p29l14).

But this statement by the BCCA does not accurately reflect either my statements in the trial transcript, nor the Crown's submissions in their factum. So perhaps they are, once again, pulling this out of their asses.

His position was the Crown had not established that he did not, within 48 hours of his release from custody, remove the website, and it was possible the website was taken down within 48 hours of his release and subsequently put back online.

That is bullshit! The Court of Appeal is completely ignoring the most significant issue I raised at the trial, which was that the Crown failed to establish I had the physical capability and the legal authority to take down the website. That was the first and most important issue I raised both at trial (p28l6-14) and in the appeal in my factum (para 121).

In it's factum, the Crown referred to my argument that they had failed to establish I had the capability to take down the website (paragraphs 119-120), but they never actually provided a rebutal to it. All they said was "…a trier of fact properly instructed could reasonably conclude that the appellant did not take the website offline…". Yes, there is no dispute I did not take the website offline - because I have had no capability to do so, it is not my hosting account; I have no access to it.

The reason the Crown did not respond to the substance of the issue of me not having the capability of taking down the website is because they know that I'm right and they had absolutely no legitimate legal argument. It is well established that the Crown has the burden of proving the accused has the physical capability and the legal authority to engage in the conduct required by a probation condition. And Dent testified he had no knowledge of who has ownership or control over the website (p16l27-33). In fact, the neither the police nor the Crown made any attempt, at all, to determine whether or not I actually had any involvement with the website (probably because they knew I didn't).

And, the reasons the BCCA made no mention of the issue of me not having the physical capability nor the legal authority to take down the website is because:

The Crown didn't provide a rebutal to it in their factum. And since the BCCA only read the Crown's factum, they had nothing to copy and paste into their Reasons for Judgment; and
The Crown's burden of proving I had the capability and legal authority to engage in the conduct required by the probation condition is so clear that they could not publicly admit the Crown failed to prove that, and still dismiss the appeal. That would just be too obvious.

So, the BCCA did what the BC courts always do in these circumstances: They ignored the fact that I even made that argument, and they make no mention of it in their Reasons.

Mr. Fox said there was a gap in the evidence, and it had not been proven beyond a reasonable doubt that he failed to comply with the probation order.

[23]

Judge Rideout convicted Mr. Fox of breaching the Phillips Order by failing to take down the website. In doing so, he concluded:

[19]

There were statements made by Mr. Fox that clearly implicated him beyond a reasonable doubt in relation to access to the website, social media, or other publication which was prohibited by Judge Phillips. What happened within forty-eight hours remains uncertain and perhaps only speculation as to what took place, and I am not going to speculate what happened. The point is that the information contained in the website was available via the [I]internet between the dates as set out [on the Information]. It is more than clear that it was the accused who was involved in that website. Ownership aside, he was inputting the information and from his own mouth himself, essentially convicted himself.

[24]

Judge Rideout sentenced Mr. Fox to one year of incarceration and one year of probation, on the same terms as the Phillips Order. Mr. Fox has appealed both his conviction and sentence (CA47391). We are only addressing the conviction appeal at this time.

[25]

On the conviction appeal, he alleges that the Crown failed to make timely pre-trial disclosure of his interview with DC Dent, or provide a witness list;

This is false. I am not alleging the Crown failed to make timely pre-trial disclosure of just the Dent interview and their intention to call any particular witnesses. I am alleging the Crown failed to make timely disclosure of ALL of the disclosure material. This was thoroughly covered in my factum (at paras 65-76). I explained that the Crown had withheld the disclosure material, then dumped over 100 pages and over two hours of recorded police interactions on me less than 72 hours before the start of the trial. I do not believe for even a moment, that the BCCA misunderstood my submissions. They are only pretending to because there is no way they could plausibly claim I was no prejudiced by the Crown's withholding of all of the disclosure material until three days before the trial, then Rideout's refusal to consider an adjournment or an exclusion order.

I also extensively covered, in paragraphs 77-83 of my factum, the Crown's refusal to inform me of any of the witnesses they intended to call.

Interestingly, even though I stated, in my factum, that the Crown withheld almost all of the disclosure until three days before the trial, the Crown stated in their factum:

66. The appellant says his defence was prejudiced because he only received disclosure of his interview three days before trial…

But that is clearly false. As you can see, in my factum, I stated:

Crown Counsel failed to make timely disclosure by withholding almost all disclosure material … then providing it all to me less than three days before trial.
66. By withholding almost all of the disclosure material…

67. Given the amount of disclosure material I was provided on 2020-11-23 (107 pages, and over 2 hours of recordings of my interactions with the police)…

But, what's interesting about this is that when discussing what I was claiming on appeal, the BCCA used wording almost identical to what the Crown used in their factum, even though what the Crown said was obviously wrong. It's as though the BCCA didn't even read my factum. It's as though they just read the Crown's factum, what the Crown said about my arguments, then made their decision based solely on the what the Crown said.

there was Crown, police and judge misconduct amounting to an abuse of process; the judge erred in admitting the David Eby letter; the judge erred by finding DC Dent credible and reliable; the judge erred in intrepreting the probation order; and the verdict is unreasonable.

[26]

In our view, there is no merit to any of the grounds of appeal. The judge did not err in admitting the highly relevant David Eby letter,

Really? If the BCCA believes the article was "highly relevant" then why don't they provide a basis for that finding? Simply saying the article was "highly relevant" doesn't cause it to actually be highly relevant. Considering there was absolutely no evidence I wrote, or had anything to do with the article, I fail to see how it can possibly be relevant. This was thoroughly covered in my factum (at paras 101-107).

Without there being any evidence that I actually wrote or that I even had any involvement, at all, with the article, then the specific statements made in the article cannot possible have any relevance!

Before the Court can say the Dear David Eby article is relevant, let alone "highly relevant", the Crown would have to prove that I'm the one that wrote it. And not only did the police and the Crown not prove that, they didn't even attempt to prove it.

or in finding the police witness credible and reliable.

This was covered at length in my factum (at paras 110-114). In my factum, I pointed out that Dent had contradicted himself on a number of material matters, including testifying on direct, that he did ask me whether I had taken down the website (p11l42-44), then testifying on cross, that he did not ask me whether I had taken down the website (p21l16-18); and testifying on direct, that he reviewed the case file before interviewing me (p6l35-36), then testifying on cross, that he did not review the case file (p21l47).

In my factum (at paras 112-113), I also pointed out a number of other contradictions Dent made, and some of his attempts to be evasive when asked questions he did not have an acceptable answer for.

At my subsequent trial, in the matter of 244069-8-B, Dent begrudgingly admitted that he did lie on the witness stand at this trial (2022-02-23 p41l11-p46l28, esp. p46l3-7). But that was not mentioned in my factum.

Given Dent's contradictions on the witness stand, I am disgusted that first the trial judge and now the Court of Appeal justices, will so easily ignore the fact that a law enforcement officer committed perjury and they will still insist he was a credible and reliable witness.

There is no evidence of Crown, police or judge misconduct, and no abuse of process. With respect to disclosure, there is no evidence of prejudice from the late disclosure.

Okay, now I know the Court of Appeal justices are blasted on crack! The Crown's entire case was based on statements they claim I made to Detective Dent when he interviewed me. The interview was about an hour. The interview occurred more than two months before the trial, so I could not possibly remember, with accuracy, all that was said in the interview. Then, less than three days before the trial, the Crown gives me the recordings of the interview, and over 100 pages of material. On the other hand, for the two months leading up to the trial, the Crown had all of the material in their possession. They were able to review the interview, make notes, and prepare their direct-examination of Dent. Yet, the Court of Appeal has the gall to I was not prejudiced by the late disclosure? Are they fucking insane?

Have I mentioned that I would really not be suprised to learn that, in fact, the BCCA never even opened my factum. It really seems, at this point, that they really just read the Crown's factum. And, once again, I say: This is your justice system, Canada.

Disclosure was complicated by the fact that, in the past, Mr. Fox had abused the implied confidentiality of Crown disclosure by posting it on the website, and he failed to return to the Crown a laptop that contained electronic disclosure.

Implied confidentiality? Fuck right off! You cannot hold a person to an implied rule. Moreover, even if the rule was explicitly stated to me, I never agreed to comply with it. In fact, I have been completely candid, right from the beginning, since June 2016, that I want absolutely everyting about these prosecutions against me to be completely public and that I will do whatever I can toward that end.

There has never been any evidence that any of the material I have published was received from the Crown as part of the disclosure in my proceedings. In fact, some of the material I published was missing the redactions the Crown had applied to the version they disclosed to me, which means I must have received it by some other means. Also, some of the material I have published hadn't even been provided to me by the Crown at all (e.g. Capuano's victim impact statement, the results of my 2019 court ordered psych assessment).

As for the infamous "stolen laptop", there has never been any evidence of that, either. The laptop was provided to me by the BCPS, while I was in custody at NFPC. Upon my release I was supposed to leave it with the jail staff for it to be returned to the Crown. On 2020-08-20 I was released. I left the laptop in the cell with the rest of the jail's property, and that was it. If the jail lost it or if another inmate stole it, fuck 'em, that's not my problem. There are video cameras all throughout the jail. If I had taken the laptop with me it would have been on video. What do they think, I hooped it? Fuck, these people are despicable! They lose their own laptop and they accuse me of stealing it. It's probably sitting on a shelf in their IT storage room at 865 Hornby Street.

Mr. Fox clearly anticipated that the interview with DC Dent would be led in evidence at his trial. Mr. Fox's letter of October 31 anticipated that the Crown's case would include his "admissions". Mr. Fox received the full electronic disclosure package three days before the start of the trial, which included the Taks Action Report and DC Dent's will-say. Mr. Fox agreed at trial, in answer to questions from Judge Rideout, that he had received disclosure in relation to his interview with DC Dent.

Yes, asshole, I did receive the disclosure material a whole 3 days before the trial. And perhaps you're able to prepare an entire defense, including preparing a cross-examination for every possible witness the Crown might decide to call (because remember, they provided no notice of their intention to call Dent, so I had as much reason to think they would call him as that they would call Wesley Jordan, the Lead Investigator; or Nicole Roberts who participated in the arrest, or anyone else who was mentioned in the disclosure material), but mere mortals like myself would require more than three days to review the video of the interview and make notes from it, and review the 107 pages of additional material. Asshole!

I'd also point out, the Task Action Report which the Court of Appeal is referring to here, was included on pages 37-39 of the 107 pages which were provided to me less than three days before the trial. They were stuck right in the middle. And there was nothing to suggest there was any particular significance to them. There was nothing to make them stand out.

So yes, I did receive the disclosure material, but I did not receive it timely. Two and a half days before the trial is not timely! And we're not talking about three or four pages of insignificant material here, either. We're talking about, literally, ALL of the disclosure material. All 107 pages, and two hours of recorded police interactions.

Prior to receiving that disclosure material on 2020-11-23, I had not prepared any trial plan. I had not done any preparation at all. Because I couldn't, because I didn't have any of the disclosure material. You can't prepare a defense when you don't even know what evidence and information the prosecutor might have.

For the Court of Appeal to suggest that it is acceptable for the Crown to withhold all of the disclosure material until three days before the trial, is simply ludicrous and not a single person in the world would agree with them.

Mr. Fox agreed that the Crown did not need to play the video of the interview, and he was not raising any objection to the admission of evidence about the interview through the testimony of DC Dent.

This is completely false! I agreed to nothing of the sort. See my comments, above, at paragraph 19, where the BCCA made this same claim.

And as for not raising any objection to Dent testifying about what was said at the interview rather than playing the recording of the interview, I had already objected to the calling of Dent as a witness because Crown had not provided any notice of their intention to do so, and Rideout had responded saying I should have raised that objection prior to the trial. This was all covered in my factum (paras 77-83), which, of course, the BCCA apparently didn't bother to read.

Once Rideout dismissed my objection to the calling of Dent as a witness, and considering Rideout's assurance to me that Crown Counsel would ensure the trial proceeds in a fair and just manner (p1l37-41), it was obvious any further objections would be futile.

Moreover, I would not, necessarily, have had an objection to the Crown having Dent testify about my statements rather than playing the video of the interview, if I had had adequate time to review the video of the interview. And Rideout was already well aware of the fact that I had just received the video of the interview three days prior to the trial (p4l26-32). This was covered in my factum (para 29).

He did not ask for an adjournment to allow himself more time to review the electronic disclosure.

Because Rideout had already made it clear that he was not going to adjourn the trial based on the Crown's failure to provide timely disclosure. Rideout clearly stated I should have raised these issues prior to the trial (p4l33-46). This was explained in both my factum (paragraph 29), and in the Crown's Factum (paragraph 36). So it would have been pointless to request an adjournment after Rideout already made it clear he was not going to consider that.

In addition, requesting an adjournment is exactly what Johnson wanted me to do. That is exactly why he withheld the disclosure material and his intention to call Dent as a witness. So I wouldn't be prepared and would have to adjourn the trial. It's a common, sleazy tactic, which the BC prosecutors use regularly. In fact, Johnson has used it in all three of the cases he's prosecuted against me:

In 244069-6-B, the trial was scheduled to proceed on 2020-07-06. As the trial was about to begin, Johnson told the judge (Kathryn Denhoff) that he had just received additional evidence from the Vancouver Police, which he has not yet had the opportunity to disclose to me. The evidence in question was all irrelevant and he inadvertently admitted, on the record, that he had no intention of relying on any of it. Nevertheless, he used that as a basis to request an adjournment to the start of the trial - to protect my rights to disclosure. Record of Proceedings, page 2, 2020-07-06 entry
In 244069-7-B, Johnson withheld all of the disclosure until three days before the trial; and on the morning the trial was scheduled to proceed, Johnson disclosed to me for the first time, that he intended to call Dent as a witness. Given this last minute disclosure, I clearly had a right to an adjournment AND there is absolutely no way I could have been ready for trial. So officially, it would have been me requesting the adjournment, but the need for the adjournment would have been the prosecution's failure to provide timely disclosure.
In 244069-8-B, the trial was scheduled to proceed on 2021-10-14. That morning, at the start of the trial, Johnson claimed in court that one or more of his witnesses was not available because their children were sick. At that appearance, I made a number of disclosure requests to Johnson, for example for the video recording of the Dent interrogation, to use in my cross-examination of Dent. By the next scheduled trial date, 2021-11-23, Johnson still had not provided the requested disclosure. That resulted in me having to request an adjournment. At the next scheduled trial date, 2022-01-10, Johnson claimed Dent informed him that morning that he was ill and could not attend court. That resulted in another adjournment. Record of Proceedings, page 1, 2021-10-14, 2021-11-23, 2022-01-10 entries

This was covered in my factum (para 84) and my Affidavit #2 (para 7). So, requesting an adjournment in order to delay the trial, thereby extended my incarceration, would really just be rewarding the Crown for failing to cooperate in making timely disclosure. The BCCA is well aware of this - as I said, it's a common tactic.

At trial was the time to raise any prejudice arising from late disclosure, and not for the first time on appeal.

[27]

As Judge Rideout said, Mr. Fox "from his own mouth, essentially convicted himself."

In this paragraph, the BCCA argues against my interpretation of Condition 4 of the Judge Phillips probation order. The Court completely, blindly accepts the Crown's supposed interpretation, even though the Crown's interpretation here completely contradicts their interpretation at the time of sentencing before Judge Phillips. Also, everything the Court of Appeal says in this paragraph is, once again, taken straight from the Crown's Factum (paragraphs 113-114), and they make absolutely no mention of any of the arguments I made on this matter, in my factum (paras 115-120) or in my reply factum (paras 1-3).

Again, it is obvious the BCCA did not even read my factum, nor my reply factum. If they had they would have realized I clearly and irrefutably pointed out the serious flaws in the Crown's argument. Instead, by adopting the Crown's supposed interpretation of Condition 4 the BCCA is making themselves look like complete, fucking fools.

It is also extremely significant that in parapraph 3 of this same Reasons for Judgment, the Court of Appeal achknowledged that Condition 12 of the Justice Holmes probation order prohibited me from making any information about Capuano available. This is significant because in this paragraph they are saying that my interpretation of Condition 4 of the Judge Phillips probation order would result in an absurdity because it would mean I could take the website down, then immediately put it right back online. But obviously they know that's not true because they, themselves, acknowledged that Condition 12 of the Holmes order prohibited that. This shows how incredibly full of shit the Court of Appeal is - they contradict their own findings within the same Reasons for Judgment. And it doesn't even matter to them.

[28]

Finally, Mr. Fox's argument that Judge Rideout misinterpreted Condition 4 of the Phillips Order is also without merit. Mr. Fox suggests that Condition 4 only required him to temporarily make the website publicly inaccessible in the 48 hours following his release from custody, at which time he was then free to make the website available again.

That is false. The BCCA is misrepresenting my arguments. However, it is clear that the BCCA is not actually referring to my arguments - they are referring to what the Crown said about my arguments in their factum Crown's Factum ¶61, ¶107.

What I did argue was that Condition 4 of the Judge Phillips order required me to engage in particular conduct within 48 hours of my release from custody, which would result in the website, essentially, being taken offline. And that once the website had been taken offline then the condition had been fulfilled. Condition 4 did not require me to engage in any further conduct and it did not prohibit anything at all. Once the website had been taken offline, then Condition 12 of the Justice Holmes order prohibited me from putting it back online. That was my argument. And it was clearly articulated in my factum (paras 115-119), and my reply factum (paras 1-3).

I never suggested that once the website had been taken down I was free to make it available again. In fact, I was clear in my reply factum, that Condition 12 of the Holmes order explicitly prohibited that (para 3). What I had said was that Condition 4 did not prohibit me from putting the website back online - because Condition 12 already prohibited it.

I absolutely refuse to believe that the Crown and the BCCA justices are so fucking obtuse that they did not realize this. But if that's the case it means they are deliberately pretending to not realize it. Which makes them evil, horrible, assholes. So… assholes or imbiciles … it's got to be one or the other.

This interpretation would lead to an absurd result. On this interpretation, Mr. Fox could comply with the terms of his probation by temporarily taking down the website for a matter of seconds, provided that this occurred in the 48 hoursr after his release from custody, following which he was free to make the website publicly available on an indefinite basis.

This was taken straight from the Crown's Factum (paragraph 114).

The fact that the BCCA included this in their Reasons for Judgment proves beyond all possible doubt, that they never even looked at my factum and my reply factum because therein I explained about Condition 12 of the Holmes order, and that it prohibited me from publishing anything about Capuano. I explained that once the website had been taken down in accordance with Condition 4 of the Phillips order, then Condition 12 would prohibit me from putting it back online (factum paras 115-119, reply factum paras 1-3).

The fact that the BCCA would adopt the Crown's supposed interpretation, and say this in their published Reasons for Judgment, after I had already pointed out the errors in the Crown's interpretation of the condition, really makes them look like complete and utter fools, and unquestionably proves the outrageous corruption and injustice in the BC Court of Appeal.

This interpretation is contrary to the plain wording of the Phillips Order and its surounding context. It would defeat the very purpose of the probation order in protecting Mr. Fox's ex-wife from continued harm.

No, it isn't contrary to the plain wording at all. "No longer available" means that it was available in the past but is not available right now - at the present. It does not means it was available in the past but is not available at the present nor into the future.

And regarding the Crown's and the courts' incessant claims that the purpose of the probation condition is to protect Capuano from further harm caused by the website - it has been well established beyond all doubt that is a load of shit. If the police, the Crown, or any of the Canadian courts had any interest in protecting Capuano from any supposed harm caused by the website they would have taken steps years ago to try to get a US court order to compel the hosting provider to shut down the website. But they didn't! They never took a single step toward that end. They've spent hundreds of thousands of dollars, and thousands of man-hours investigating, arresting, detaining, prosecuting, and imprisoning me; but not one minute nor one dollar on trying to get the website shut down.

What that proves is that these prosecutions have absolutely nothing to do with protecting Capuano, nor with enforcing the probation conditions. These prosecutions have to do with two things: saving face; and retaliation.

This is also a good place to point out that since the website went online in 2014, Capuano has never actually done a single thing to try to get it shut down. She filed one complaint with the hosting provider in 2014 - but that was related to unsolicited emails being sent from the domain name, not about the website. Otherwise, everything she has done has been about getting me arrested, prosecuted, and imprisoned.

The correct interpretation of Condition 4 of the Phillips Order is that it required Mr. Fox to take all necessary steps to ensure that the website was not available during the entire currency of his probation order, and that he had to do so within 48 hours of his release. Judge Rideout did not err in interpreting Condition 4 in this manner.

[29]

We would dismiss Mr. Fox's appeal from conviction on CA47391.

[30]

The final matter we must deal with relates to Mr. Fox's applications to introduce new evidence on appeal in the form of affidavits and transcripts, as well as Crown disclosure. The Palmer criteria are applicable, and we have considered the most recent application by Supreme Court of Canada in Barendegt v. Grebliunas, 2022 SCC 22. Some of the material Mr. Fox seeks to admit relates directly to the proceedings, in the form of transcripts of pre-trial proceedings. However, some relates to other or subsequent proceedings. To the extent the materials relate directly to the two appeals before this Court, only the material which includes the paper disclosure package sent to Mr. Fox on the Rideout matter, and the flash drives of the video and audio police interview and the transcription of the police interview will be admitted. The balance of the new evidence, in the form of affidavits and transcripts, will not be admitted as this is material that is not relevant to a decisive or potentially decisive issue, or that could have affected the result of the trial.

[31]

We would dismiss Mr. Fox's appeals from conviction on CA 46979 and CA47391.

"The Honourable Madam Justice Stromberg-Stein"
"The Honourable Mr. Justice Hunter"
"The Honourable Madam Justice Horsman"