Affidavit #1 of Chris Johnson - Appeal of 244069-7-B

I have personal knowledge of the matters deposed to in this affidavit, except where they are said to be based on information and belief, in which case I believe them to be true.

I am a lawyer with the Vancouver law firm of Johnson Doyle. My practice is largely devoted to criminal defence work, but on occasion I conduct special prosecutions or act as ad hoc Crown counsel.

I have acted as ad hoc Crown in the following three matters involving Patrick Henry Fox, each involving one or more counts of breach of probation:

In all three matters, Mr. Fox chose not to retain counsel and was thus self-represented throughout the proceeding. In each matter, Mr. Fox was not released on bail pending trial and he was convicted after a contested trial.

In prosecuting the above-mentioned matters, I have both appeared with Mr. Fox in court, and spoken to him off the court record,1 on many occasions. I have seen him make submissions on issues of evidence and procedure, cross-examine Crown witnesses, and provide trial judges with closing arguments.

Based on this experience, in my opinion Mr. Fox is an intelligent person who is focussed and well-organized in court. He always comes to court with his materials organized, and appears to have prepared notes regarding submissions and cross-examination questions. Compared with other self-represented persons with whom I have dealt, Mr. Fox has a good understanding of the legal issues involved in his cases.

Information 244069-7-8 was sworn on September 17, 2020. Later that same day, Mr. Fox appeared for a bail hearing before Judicial Justice Rogers. The matter was adjourned for one week at Mr. Fox's request, to September 24, 2020.2

Mr. Fox appeared again for a bail hearing on September 24 and October 5, 2020, but both times the matter was put over, at his request, to permit him to obtain documents that he wished to use at the bail hearing.3 At the October 5 appearance, the matter was put over to October 20.4

Also at the October 5 court appearance, Mr. Fox asked for disclosure, and I agreed to provide it to him.5 Later that day, at 1:53 p.m., I emailed Crown legal assistant Vivienne Deng to ask that the disclosure be prepared so that it could be sent to Mr. Fox prior to his next court appearance. At 2:12 p.m., Ms. Deng emailed me to say that she was no longer working at the Crown office at 222 Main Street, and that Crown legal assistant Kelsea Goodwillie would assist me in preparing the disclosure to be sent to Mr. Fox. At 2:16 p.m., I emailed Ms. Goodwillie to ask that she start the process of providing Mr. Fox with disclosure. Attached as Exhibit A is a printout of an email thread containing these communications, redacted to remove some email addresses and phone numbers.

At 10:47 a.m. on October 9, 2020, I emailed Ms. Goodwillie to follow up on my email to her from October 5. She responded by email at 10:52 a.m., confirming that she was working on getting the disclosure ready, and indicating that she was working with Shannon Simpson to address how to do so given a concern that Mr. Fox had previously stolen a laptop.6 Ms. Simpson is a Crown paralegal.

The emails mentioned in the previous two paragraphs reflect an ongoing concern, on both my part and the part of the Crown office more generally, that Mr. Fox might misuse any disclosure provided to him. The reasons for this concern include: (a) the website that was the subject of the breach of probation charges contained disclosure materials that Mr. Fox had received from the Crown, including in the criminal harassment prosecution; (b) he appeared to be very adept regarding computer technology; and (c) the Crown suspected Mr. Fox of stealing a laptop on which disclosure had been provided to him in the proceedings associated with Information 244069-6-8.

On October 14, 2020, Ms. Goodwillie emailed me to say that she had some initial disclosure that could be sent at that time in paper form, but that she was still in the process of preparing the electronic disclosure, which she expected would be completed the following week. Ms. Goodwillie also noted that this electronic disclosure still had to be vetted by me. Attached as Exhibit B is a printout of an email thread containing this communication, redacted to remove some email addresses and phone numbers.

On October 15, 2020, paper copies of some initial disclosure materials were sent to Mr. Fox at North Fraser Pretrial Centre (NFPTC), as reflected in the copy of the continuous disclosure letter attached to this affidavit as Exhibit C. Exhibit C sets out the items that were included in this disclosure package.

Also on October 15, 2020, at 4:31 p.m., Ms. Goodwillie emailed me to say that she was sending me some electronic disclosure to be vetted prior to it being sent to Mr. Fox. Attached as Exhibit D is a printout of an email thread containing this communication, redacted to remove privileged information (p. 3), passwords (p. 5), and some email addresses and phone numbers.

Based on Ms. Goodwillie's email, I believe that my assistant likely accessed the electronic disclosure materials on or about October 15 or 16, 2020. The usual process would be for her to then print the materials out for my review.

As noted, Mr. Fox's bail hearing had been set for October 20, 2020. However, prior to this appearance he had called my office to say that he wanted to be arraigned before having a bail hearing.7 Accordingly, at the court appearance on October 20, Mr. Fox was arraigned and pleaded not guilty, and a trial date was set for one-and-a-half days on November 26 and 27, 2020. Mr. Fox did not ask the court to set a further date for a bail hearing, and the matter was adjourned to November 26.8

At this same court appearance, I asked Mr. Fox whether he had received the disclosure that was sent to him on October 15. Mr. Fox confirmed that he had received the disclosure, but noted that it contained only a very brief narrative and a couple of statements related to his arrest. I indicated that this was an initial disclosure package, and that I was in the process of arranging for a package of electronic disclosure to be provided to him on a laptop.9

Prior to the trial dates being set on October 20, Mr. Fox and I had engaged in courtroom discussions in the absence of the presiding judge, on at least two occasions, regarding which witnesses might be called at the trial. Mr. Fox told me that he wanted DC Dent to be called as a witness. I readily agreed to do so, as DC Dent was a witness who I would have called in any event, given that he had interviewed Mr. Fox and during this interview Mr. Fox had made statements that supported the Crown case against him.

During these same off-the-record discussions, Mr. Fox agreed to make certain admissions regarding noncontroversial matters. While I hoped that he would not retract these admissions, I nonetheless planned to have the witnesses in question ready to testify, if possible, just in case.

By letter to me dated October 31, 2020, a copy of which is attached to this affidavit as Exhibit E, Mr. Fox addressed the issues of disclosure and a witness list as follows:

Also, as you know, we're less than four weeks away from the scheduled trial date and I've still not received your witness list or the disclosure. Obviously, I would like to investigate your witnesses before I cross-examine them, and I may need time to obtain evidence to rebut any evidence you intend to offer, so if it gets too close to trial before the disclosure is provided then I may need to request a continuance.

However, I believe your case is going to be based solely on my "admissions" and the testimony of one or two VPD officers – in which case, I'm ready to proceed with the trial right now.

On reading this letter, I viewed the second of the two paragraphs set out above as reflecting my earlier discussions with Mr. Fox as to the witnesses who would be called at trial, as well as the fact that the Crown would be relying on statements that he had made during his interview with DC Dent. For this reason, and because in the letter Mr. Fox said that he was ready to go to trial right now if the Crown was simply relying on his "admissions" and the evidence of one or two VPD officers, I saw no need to respond. (I viewed the first of the two paragraphs set out above either as a strategy by Mr. Fox to guard against the Crown calling a "surprise witness", or as reflecting his hope that, despite our previous conversations, the Crown might decide to call Ms. Capuano as a witness.)

Apart from this October 31 letter, neither my firm nor, to my knowledge, the Crown office at 222 Main Street, received any letters from Mr. Fox regarding this matter between the time of his arrest on September 17 and his conviction on November 26, 2020.

In his Affidavit #1, at paragraph 28, Mr. Fox says that in late October or early November he left a voice message with my office asking that I schedule both a bail hearing and a pretrial conference to address outstanding disclosure issues. I have no memory of Mr. Fox leaving such a voice message. But in any event, at the time I read Mr. Fox's October 31 letter, which would have been in early November, I was aware that the trial was weeks away, and I was also aware, from previous discussions with Mr. Fox, that he knew that he could request either a bail hearing date or a pretrial conference himself by contacting the court registry

On November 3, 2020, Ms. Goodwillie emailed me asking whether I had vetted the electronic disclosure. She indicated that she was still waiting to hear back from Ms. Simpson regarding the method of disclosing the materials to Mr. Fox, but that this could be sorted out once the materials were ready to be disclosed.10

On November 18, 2020, at 8:36 a.m., Ms. Goodwillie emailed me to ask if I had any updates further to her November 3 email. I responded by email at 9:11 a.m., stating that I would finish reviewing the disclosure by the next day.11

On November 20, 2020, at 9:57 a.m., Ms. Goodwillie emailed me to inquire whether I had completed my review of the disclosure. I responded by email at 2:01 p.m., indicating that I had reviewed the disclosure and that it could now be provided to Mr. Fox, hopefully as soon as possible. Ms. Goodwillie replied at 2:10 p.m., asking whether I thought the material could be disclosed as a paper copy. I answered her in the affirmative at 3:18 p.m.12

However, at 3:50 p.m. that same day, Ms. Goodwillie emailed to say that she had been speaking to Ms. Simpson, and realized that the disclosure included audio/video materials for which there was no transcript, and so the disclosure would need to be made electronically. I agreed with this suggestion, provided the disclosure could be made on Monday, which was November 23.13

In a case that is not complex, like this one, it is not unusual for a police interview to be available only in audio or video form. Had Mr. Fox asked me to request that the police transcribe the interview prior to the trial, I would have done so, but he made no such request. For example, I did exactly that when he asked me for a transcript of this interview prior to his trial before Judge Denhoff on Information 244069-8-B.

On November 23, 2020, Ms. Goodwillie emailed me at 12:51 p.m. to say that: an encrypted hard drive had been sent to NFPTC that morning; she had been in touch with the Deputy Warden; and she had received confirmation that the hard drive had been received "with no issues".14

A copy of the letter sent to the Deputy Warden along with the above-mentioned hard drive is attached to this affidavit as Exhibit F. A copy of the continuous disclosure letter sent to Mr. Fox as part of the materials on the hard drive is attached to this affidavit as Exhibit G.

The disclosure materials couriered to Mr. Fox on November 23, 2020, contained "witness lists" for both civilian and police witnesses (RTCC, Supp. A.B., pp. 11-12). DC Dent was the first officer named on the police witness list, and his involvement was described as "Interview accused". DC Dent's "will say" indicated that he was a police witness and that he had interviewed the accused (Supp. A.B., p. 23). In addition to video and audio recordings of the interview itself (Supp. A.B., Tabs B and C), the disclosure materials also contained DC Dent's interview outline, a handwritten note regarding the interview, a Task Action Report setting out various statements Mr. Fox made during the interview, and another Task Action Report indicating that DC Dent had obtained a copy of Mr. Fox's probation conditions (Supp. A.B., pp. 31 -37).15

The delay in getting the electronic disclosure to Mr. Fox was the result of my heavy schedule and personal obligations during this period. As I explain below at paragraph 50, it was not the result of any improper purpose pursued in bad faith.

On the morning of November 26, 2020, I spoke to Mr. Fox before the trial started about admissions, as I later indicated to Judge Rideout.16 During this off-the-record discussion, I confirmed with him that the Crown was calling DC Dent as a witness. (As explained above, Mr. Fox had already known that DC Dent would be a Crown witness, and I disagree with his suggestion to the contrary at paragraph 12 of his Affidavit #1). Mr. Fox expressed no surprise at this information. He also agreed that, since DC Dent would be testifying, the Crown did not need to play the video of the interview as part of its case.17 Further, during this pretrial discussion, Mr. Fox did not express any concern that: (i) he had not received the electronic disclosure until November 23; or (ii) he did not have a transcript of his interview with DC Dent.

I asked Mr. Fox to permit the Crown to lead the evidence of his statements at the interview through DC Dent, instead of by calling DC Dent and also playing the entire interview in court, because the interview was over an hour long and, for the purposes of the Crown case, I was content to rely on the statements that DC Dent had mentioned in his Task Action Report. However, if Mr. Fox had asked that the Crown play the video of the entire interview at his trial, I would have acceded to his request.

When Mr. Fox objected to DC Dent being called as a witness on the ground that he had not received a Crown witness list, despite making "multiple requests", I was not concerned that the trial process might be unfair, because Mr. Fox had known that DC Dent would be a Crown witness, and had actually wanted DC Dent to be called by the Crown. I therefore briefly responded by indicating that Mr. Fox had received full disclosure indicating DC Dent's evidence.18 But I do not agree with Mr. Fox's claim to have made multiple requested for a witness list. Rather, he had made this request once only, in his October 31 letter, and in that letter he requested a witness list only if the Crown was not confining its case to his statements at the interview and the evidence of one or two VPD officers.

After DC Dent had finished testifying, I met with Mr. Fox to ask whether he wanted the Crown to call any other evidence. As I indicated to Judge Rideout, he did not ask me to do so.19 During this discussion, Mr. Fox did not raise any concerns about the timing of the disclosure, the absence of a transcript of the interview, or my decision to lead the evidence of his statements solely through DC Dent, instead of playing the interview in court. Had he raised these or any other concerns with me, I would have conveyed them to Judge Rideout or encouraged him to do so himself.

On November 27, 2020, Mr. Fox wrote to the Crown office at 222 Main Street indicating that the disclosure material had been taken back from him on that day, and asking to have it returned so that he could prepare for his sentencing and an appeal. Mr. Fox added that, if the Crown was unwilling to provide him with the disclosure, he sought to "schedule a hearing at the earliest opportunity so that I may present the matter to the court". A copy of this letter is attached to this affidavit as Exhibit H.

Ms. Goodwillie sent me a copy of Exhibit H by email on December 10, 2020. In her email, she confirmed that she had taken steps to retrieve the hard drive "shortly after the trial was adjourned", by which I took her to mean shortly after Mr. Fox was convicted. Later the same day, I emailed Ms. Goodwillie to ask whether we were permitted to provide this disclosure to Mr. Fox in paper copy form. Attached as Exhibit I is a printout of an email thread containing these communications, redacted to remove some email addresses and phone numbers.

On December 29, 2020, Mr. Fox wrote to me indicating that: in his November 27 letter he had asked for the disclosure so that he could prepare for sentencing; and his understanding was that this letter had been forwarded to me. He repeated his request for the disclosure. A copy of this letter is attached to this affidavit as Exhibit J.

On January 12, 2021, Ms. Goodwillie emailed me to say that Ms. Simpson had been communicating with Deputy Regional Crown Counsel Patti Tomasson and the Deputy Warden at NFPTC regarding the best method to get disclosure to Mr. Fox.20 My understanding from this email is that the suggestion being proposed was that Mr. Fox would receive the disclosure on a "read-only" BC Prosecution Service laptop, and that his box of legal materials would be searched on his release from custody to ensure that he did not take the laptop with him.

On January 21, 2021, Mr. Fox's matter was to be spoken to in court for the purpose of setting a date for sentencing, but Mr. Fox did not appear, and the matter was put over to February 2, 2021.21

At the court appearance on February 2, the matter was put over for one day to allow me to obtain a date for the sentencing.22 At this same appearance, Mr. Fox asked for the disclosure, particularly the interview with DC Dent, for use in preparing for sentencing, although when asked by Judge Rideout he was unable to say how it would be useful to him in this regard. Mr. Fox said that if the Crown had any concerns about him publishing the material, he already had a copy of it, albeit not with him in the jail, and it was going to be published, so not providing him with another copy now would not "affect that at all". At Judge Rideout's request, I agreed to provide him with this disclosure.23 However, it was not apparent to me how the disclosure would assist Mr. Fox in preparing for or making submissions at his sentencing.

On February 3, 2021, the matter was set for sentencing for April 12. Mr. Fox stated that at the sentencing he would be relying extensively on the video of the interview with DC Dent, and I confirmed that I would provide him with this video.24

On February 18, 2021, Mr. Fox wrote to me asking again for the disclosure so that he could prepare for sentencing. He also stated that, "If you're concerned about the material being published, you're too late to do anything about that." A copy of this letter is attached to this affidavit as Exhibit K.

On April 9, 2021, I responded to Ms. Goodwillie's email from January 12, 2021, indicating that I was agreeable to Mr. Fox receiving the disclosure in the manner that she had suggested.25

In his submissions at the sentencing hearing on April 12, 2021, Mr. Fox stated that he was "very unprepared" to proceed because he had not received the disclosure material, namely, the interview with DC Dent. Mr. Fox said that he wished to rely on the video as mitigating evidence, to show that his statements to DC Dent were made sarcastically or jokingly. Judge Rideout said that he had made his finding, and that Mr. Fox could appeal the conviction. He did not grant Mr. Fox's request for disclosure, and instead continued with the sentencing hearing.26

In his Affidavit #1, at paragraphs 9 to 18, Mr. Fox alleges that the Crown's failure to provide a witnesses list or disclosure, or to respond to "any of my correspondence", led him to believe: first, that the Crown was not going to call any witnesses at trial, and in particular was not going to call DC Dent as a witness; and second, that the Crown was going to withdraw or stay the charges prior to or at the start of the trial.

However, Mr. Fox never expressed these professed beliefs to me. Moreover, I never suggested to him that the Crown might not be calling any witnesses, and in particular might not be calling DC Dent. Rather, I made clear to Mr. Fox well in advance of the trial that DC Dent would be a Crown witness. Also, I did not suggest to Mr. Fox that the charges might be stayed or withdrawn. Rather, I indicated that the Crown was going to take the matter to trial, as reflected in my setting a trial date at the court appearance on October 20, 2020.

During our off-the-record discussion prior to the start of the trial on the morning of November 26, 2020, Mr. Fox never expressed any surprise that I was going to call DC Dent as a witness, or that I was not withdrawing or staying the charges against him.

Contrary to Mr. Fox's assertion, for example at paragraphs 57, 84-89, 92 and 97 of his factum, I did not knowingly and deliberately withhold disclosure from him until three days before the trial, or withhold the identities of the witnesses I intended to call until the morning of the trial, for the purpose of coercing him into either adjourning the trial, proceeding with the trial unprepared, or pleading guilty. Nor did I act in bad faith in any other way regarding the disclosure or the identities of the prosecution witnesses.

Contrary to Mr. Fox's assertion, for example at paragraphs 58, 71, 76 and 90-99 of his factum, I did not knowingly and deliberately mislead the court regarding Mr. Fox's statements to DC Dent.

Contrary to Mr. Fox's assertion, for example at paragraphs 60 and 108- 109 of his factum, I did not use the criminal prosecution against him as retaliation for repeatedly publicly exposing corruption and misconduct within the BC Prosecution Service and the justice system, nor did I use the prosecution as a means of attempting to coerce Mr. Fox into discontinuing the exposing of that corruption and misconduct.

Contrary to Mr. Fox's assertion or implication in paragraph 7 of his Affidavit #2, I did not seek or cause adjournments for improper purposes in his trials before Judge Phillips on Information 244069-6-B, and before Judge Denhoff on Information 244069-8-B.