Appellant's (Patrick Fox) Reply Factum - Appeal of 244069-7-B

Regarding paragraphs 59, 63, 106, 108, 114 of the Crown's factum, the Crown argues that Condition 4 of the probation order required me, essentially, to take down the website for the entire duration of the probation order. However: Based on the foregoing, I believe the Crown's claim that it interprets Condition 4 as requiring me to take the website down for the entire duration of the probation order is false and must be rejected.

Regarding paragraphs 59, 63, 106, 108, 114 of the Crown's factum, a probation condition can only either prohibit the accused from engaging in specified conduct, or it can require the accused to engage in specified conduct. In the event of prohibited conduct it is reasonable to assume that, unless otherwise stated, the person is prohibited from engaging in that conduct 24 hours a day, 7 days a week, for the entire duration of the order. However, in the event of required conduct it is unreasonable and unrealistic to assume that the person must engage in the specified conduct continuously, 24 hours a day, 7 days a week, for the entire duration of the order. Therefore, if it is not stated when, for how long, how frequently, and/or how promptly the person is required to engage in the specified conduct then it is reasonable to assume he is only required to do it one time. If the only guidance stated in the condition is the achievement of a particular objective, then it is reasonable to assume the person is required to engage in the conduct until the objective is achieved. In the current matter, the only guidance provided was the stated objective of the website being "no longer available", and for that objective to be achieved within 48 hours of my release from custody. Based on that it was reasonable for me to conclude that I was required to engage in the specified conduct until the objective was achieved, and that the objective was required to be acheived within 48 hours of my release from custody. And both the Crown and the judge acknowledged that there was no evidence as to whether or not that occurred.

Regarding paragraph 114 of the Crown's factum, the Crown submits "the interpretation of Condition 4 advanced by the appellant at trial and before this Court, which would permit him to take the Website offline for as little as one second, and then immediately put it back up, would result in an absurdity" (emphasis added). But that is false! It would not result in an absurdity, because Condition 12 of the Justice Holmes order addresses exactly that scenario. Condition 12 of the Justice Holmes order expressly prohibited me from immediately putting the website back up - because doing so would constitute "disseminating, distributing, publishing or making publicly available".

Regarding paragraphs 24, 29, 73, 79, 85 of the Crown's factum, contrary to Mr. Johnson's sworn statement at paragraph 18 of his affidavit, no such discussions between he and I occurred. And the proof of that is irrefutable, as explained in my affidavit (Fox Affid3 ¶4, 5). And, given that those discussions never actually occurred, any subsequent reliance on them by Mr. Johnson and by the Crown in it's factum, must also fail.

Given Mr. Johnson's blatant and brazenly false statements in his affidavit, and his history of brazenly lying to the court in my proceedings, I submit that any and all statements from Mr. Johnson must be received with skepticism.

Regarding paragraphs 25, 26, 67, 73, 74, 84 of the Crown's factum, in my letter to Mr. Johnson, dated 2020-10-31: Given Mr. Johnson's familiarity with the case, and that he was the sole Crown Counsel on the case, I would think that he would have realized the foregoing.

The specific content of my 2020-10-31 to Mr. Johnson must be considered in the context of the events and circumstances leading up to that point. Namely, that Mr. Johnson was being very evasive about disclosure, ignoring my attempts to communicate, and misrepresenting facts to the court.

Regarding paragraph 26 of the Crown's factum, the Crown claims Mr. Johnson saw no need to respond to my 2020-10-31 letter to him because he believed I was saying I was ready for trial immediately and did not require or want any further disclosure material. I submit that is completely implausible. There is absolutely no circumstance in which a sane, unrepresented defendant would voluntarily proceed with trial having not received or reviewed any of the Crown's disclosure material. Particularly, material the Crown would be relying on at the trial.

Given that I was unrepresented, if Mr. Johnson really understood my letter to mean I did not want or require the disclosure material he should have explicitly confirmed that with me, preferably in court, on the record, but at least in writing. In part because it would be so outrageously out of the norm for the defense to agree to proceed with trial without reviewing ANY of the disclosure.

Regarding paragraph 28 of the Crown's factum, the Crown and Mr. Johnson's suggestion that the Crown was not obligated to provide me the disclosure, and to provide it timely, because they understood my 2020-10-31 letter to mean I said I did not want or require the disclosure, is contradicted by Mr. Johnson's email communication with Ms. Goodwillie (Ex. 'D' of Johnson Affidavit), where he stated on 2020-11-20 at 2:01pm "...and it can now be disclosed to Mr. Fox, hopefully as soon as possible" (emphasis added) and at 3:51pm "Yes I'm ok with that as long as we can have it sent on Monday." That email thread shows that Mr. Johnson withheld and neglected the disclosure material for over a month, then a few days before the trial he repeatedly expressed concern about the late release of it. If he really believed I had waived my right to it, then he would not be concerned about the late delivery of it.

Regardless of Mr. Johnson's "heavy schedule and personal obligations", the simple fact is he had the disclosure material in his possession for over a month; he repeatedly ignored both my and Ms. Goodwillie's attempts to communicate with him about it; and he made no attempt to inform me or the court that he may not be able to provide it to me in time to be prepared for the scheduled trial date. Even if that does not rise to the level of bad faith and misconduct, it at least shows gross negligence on the part of Mr. Johnson.

My affidavits #3 and #4, contain my factual responses to the assertions made by Mr. Johnson in his affidavit, and by the Crown in it's factum. Those responses are not duplicated herein, due to space limitations.

Although there are further points in the Crown's factum which I would like to respond to, the five page limit on this reply precludes me from doing so herein.