Appellant's (Patrick Fox) Factum - Appeal of 244069-8-B

On 2021-08-13 I had sent an email to editor@desicapuano.com but due to not having access to my email at that time or from within jail, I would be able to forward her a copy of that email once I am released from custody.

I did not own, control, have any involvement with, or influence over, the website at the time of or subsequent to my release from custody - that is, since the Judge Rideout probation order has been in effect.

I had informed her I had sent an email to the email address stated on the website, requesting they shut down the website (TR p14l7-14).

I had informed her I do not have access to email from within jail so I would not be able to forward her a copy of the email until after I am released (TR p28l45-p29l1)

I had informed her my ultimate objective was to bring the justice system into disrepute by exposing the corruption and misconduct that has been going on in my cases over the past six years (TR p16l45-p18l10).

I had informed her I had transferred ownership and contol of the website to a third party before any of the probation orders came into effect (TR p14l45-p15l38), and I no longer had any control or influence over it (TR p18l22-23).

I had informed her I have no knowledge of who is currently running or maintaining the website, or if anyone even is (TR p19l2-12).

That during the interrogation, she and Det. Roberts did not ask me to provide them the email I had sent to editor@desicapuano.com, nor did they ask me to provide them access to the email, they only asked me when I would be able to provide them the email and they asked me to provide them the passwords to my phone and my laptop (TR p27l45-p30l3).

He had no knowledge or evidence of whether the website had actually remained online and accessible, continuously, for any duration, following my release from custody (TR p36l7-33, p92l33-p94l1) - even though he consistently insisted it had.

He had no knowledge or evidence of who owns, controls, or has administrative access to the website, or whether I own, control, or have administrative access to the website (TR p62l47-p63l8). He has not been in contact with the web hosting provider and has made no attempt to determine whether I have any involvement with the website (TR p63l14-18). And, no attempt was made to verify who owns or controls, or whether I own or control, the website (TR p92l27-32).

It is relevant and critical to the current charge to establish I have the capability of fulfilling the probation condition (TR p63l44-p64l1) - even though he admitted he had no knowledge of, and he made no attempt to determine, whether I had any involvement with the website.

Much of his belief that I am involved with the website is based on his own assumptions and inferences from vague, indirect, allusions I had made in an unrelated police interview, more than nine months prior - not from any actual evidence or any direct statements I had made (TR p64l35-45).

He has no knowledge of anyone within the VPD making any attempt to pursue a US court order for the hosting provider to shut down the website (TR p69l34-38).

The VPD made no attempt to obtain a search warrant or production order for Google, to gain access to my email account to verify the email I sent to editor@desicapuano.com (TR p76l40-44).

He has not encountered any evidence which would contradict my claim that I relinquished ownership and control of the website prior to any of my probation orders coming into effect on 2018-12-29 (TR p81l18-22).

No attempt was made to locate, obtain, or verify the email I had sent to editor@desicapuano.com (TR p92l5-12).

There is no evidence that I have had any involvement with the website from the time of my release from custody on 2021-08-12 through the time of the trial (TR p93l10-27).

The website had gone offline in 2018. Shortly thereafter, my friend, Ms. Munoz, arranged for it to be put back online. Lacking the technical knowledge to do that herself, it would have been executed by a third party. That was done without my involvement or knowledge. That occurred while I was still in custody at FRCC, where I did not have access to a computer or to the internet, so I could not possibly have been involved - it would have been physically impossible (TR p99l46-p101l20, p119l39-p120l1). Moreover, I was not even on probation at the time.

I told Ms. Munoz, due to my probation conditions, I did not want to know anything about the website or who might be involved with it (TR p101l22-p102l13, p120l42-46).

At the time of my release from custody on 2021-08-12, and the Judge Rideout probation order coming into effect, I had no involvement with, or control over the website, and my only means of communicating with whoever may be running the website was through the email address stated on the website, that is, editor@desicapuano.com (TR p102l18-28).

The day after my release from custody, I sent an email to editor@desicapuano.com, requesting they shut down the website until my probation orders expire (TR p102l37-45). I do not believe there is anything more I could have done toward causing the website to be taken down (TR p103l12-18, p123l34-40, p124l5-22).

Since there is, in fact, nothing illegal about the website, and the only reason I may not currently be involved with the website is because of the probation condition, then there is nothing inappropriate with me saying that once that condition expires I intend to return to engaging in running and maintaining the website. It is no different than any other lawful activity which a person is temporarily prohibited from engaging in due to a probation order. For example, under the Justice Holmes probation order I was prohibited from being within 100 meters of the US border, but since that order has expired I am now entitled to go to the US border any time I want (TR p103l20-p104l1).

I had stated in my submissions in a previous prosecution, that even if the court imposes a probation condition requiring me to take down the website, the website is not going to come down upon my release from custody (TR p109l21-37). But that the reason for that statement was because I didn't have ownership or control of the website. Ordering me to do something that I have no capability or authority to do isn't going to cause that thing to happen, regardless of any court order or punishment imposed on me (TR p109l37-46).

I had repeatedly made false admissions to the police that I was the person who put the website online, because I was deliberately antagonizing them and the BCPS to provoke them to prosecute me for criminal harassment based on the current website (TR p111l7-15, p111l37-45, p112l6-9, p113l8-19, p113l35-p114l1).

The reason I wanted to be prosecuted for criminal harassment based on the current website was, ultimately, part of my goal to bring the justice system into disrepute by exposing the corruption and misconduct that has been going on in my cases (TR p112l10-25).

There are other cached copies of the website on the internet, maintained by third-party organizations which have nothing to do with me and which I have no influence over (TR p123l40-p124l2).

At the time Justice Holmes imposed the first probation order, it is clear that her intention was for Condition 12 to prohibit me from publishing material related to Ms. Capuano for the duration of the order, and for Condition 13 to require me to remove any previously published material about Ms. Capuano upon the probation order coming into effect. Given those two conditions, it would be nonsensical to interpret Condition 13 as requiring me, for the entire duration of the probation order, to take all necessary steps to ensure the website is no longer available because once the website is taken down within 24 hours of my release from custody (as required by Condition 13) then Condition 12 would prohibit putting it back online during the entire duration of the order.

That is also supported by Crown Counsel Chris Johnson's submissions and Judge Phillips' statements at that time of sentencing in the matter before Judge Phillips. Crown requested a "short term of probation for six months", with one condition that essentially duplicated Condition 13 from the Justice Holmes' order. Since the Justice Holmes order was still in effect at that time and would remain in effect until long after the six months Mr. Johnson was requesting, Mr. Johnson and the judge must have interpreted Condition 13 of the Justice Holmes order to mean that I was required to engage in the conduct of taking all necessary steps to ensure the website was no longer available ONLY for the specified period of time following my release from custody (i.e. the 24 hours as stated in Condition 13 of the Justice Holmes order). If Mr. Johnson and Judge Phillips had actually interpreted Condition 13 of the Justice Holmes order to mean I was required to take all necessary steps to ensure the website was no longer available for the entire duration of the period of probation then Condition 4 of the Judge Phillips order would serve no purpose because it would merely be requiring me to do exactly what the Justice Holmes condition was already requiring me to do. And since the only condition requested by the Crown and imposed by Judge Phillips was Condition 4, then that would mean the entire six month probation order imposed by Judge Phillips would have been completely unnecessary, redundant, and pointless. The fact that the Crown requested and the judge imposed that condition, and only that condition, and for a duration of time which would expire long before the Justice Holmes order would expire, proves that the Crown and Judge Phillips understood Condition 13 of the Justice Holmes order to mean I was only required to engage in the specified conduct within the 24 hours following my release from custody.

Moreover, when requesting the probation order before Judge Phillips, Mr. Johnson phrased the request as follows:

I'm also going to ask your Honor to consider a short term of probation for six months...the only condition I would ask is...it seems Mr. Fox did not get the message that he needs to remove this website, and so I'm going to ask Your Honor to consider a condition very similar to the one that was imposed on his previous order which I believe is number 13. (TR p52l13-24, BCPC 244069-6-b / BCCA CA46979)

The preceding shows that Mr. Johnson understood that at the time of sentencing before Judge Phillips (i.e. 2020-08-19), Condition 13 of the Justice Holmes order no longer imposed a requirement on me - even though the Justice Holmes order would remain in effect until 2021-12-29. In other words, Crown acknowledged that Condition 13 of the Justice Holmes order only imposed a requirement on me for the first 24 hours following my release from custody.

[It should be noted, in the case before Judge Phillips I was accused of breaching Condition 12 of the Justice Holmes order, not Condition 13. The allegation in that case was that I had put the website back online while I was on probation, not that I failed or refused to take the previously published website offline when the probation order came into effect.]

If Condition 6 of the Judge Rideout order (and therefore, necessarily, Condition 4 of the Judge Phillips order and Condition 13 of the Justice Holmes order) was really intended to mean the website shall remain no longer available for the duration of the order, as Judge Denhoff stated, then that would mean that when Mr. Johnson made his submissions before Judge Phillips, he and Judge Phillips believed the website should only be required to remain unavailable for a "short term" of six months. But even if they believed that, the Justice Holmes order, which contained the same condition, would still be in effect for the next 16 months so, again, the Judge Phillips order would be completely pointless. Unless, of course, Mr. Johnson and Judge Phillips didn't interpret Condition 13 of the Justice Holmes order to impose the requirement on me for the entire duration of the order.

In summary, if the same condition, with the exact same wording, is imposed on multiple, subsequent orders, it MUST be interpreted consistently for each of those orders. To allow multiple reimpositions of a single condition, which uses the exact same wording across multiple probation orders, to have opposing interpretations, as the Crown and the judge seem to be doing here, would result in chaos, the so-called "schizophrenic law", and that would surely bring the justice system into disrepute.

And, very significantly, under the Crown's and the judge's interpretation of the condition, if someone (for example, Desiree Capuano or any of her friends, family, or supporters) wanted to ensure my indefinite, perpetual imprisonment, all they would have to do is, each time I am released from custody, put a copy of the website online and, as history has proven, I will be promptly arreseted, incarcerated, denied bail, convicted of a breach, and given a substantial prison sentence - all with absolutely no evidence that I even had anything at all to do with the website in question.

While the foregoing may seem an unlikely and even silly scenario, this exact situation appears to have occurred in May 2022, at which time I was promptly arrested and have since been in custody on that charge - even though there is absolutely no evidence I had anything to do with making the website available, or even any knowledge that it had been made available.

Given the Crown's and Judge Denhoff's interpretation of Condition 6, the fact that there is a cached copy of the website on archive.org, which I have nothing to do with, and absolutely no ability to have removed from the internet, means that for the rest of my life I can be arrested, imprisoned, and prosecuted, at any moment, with no notice.

There is a very significant and fundamental difference between the terms "would not" and "could not", and I have consistently and exclusively stated I did things so that I could not be compelled to do something, whereas the police, the Crown, and the judge have consistently misrepresented my statements as being so that I would not have to do something. To say that I "would not have to" do something means that I choose not to do that thing, even though I am capable of doing it; whereas, to say that I "could not be compelled to" do something means that I cannot be forced to do that thing because I do not have the capability. It is not that I am choosing not to do it, it is that I am not capable of doing it.

Moreover, it should be pointed out that in 2017, after testifying at the criminal harassment trial Ms. Capuano filed a civil defamation suit against me, relating to the website. And since there are no 486 appointments in civil proceedings, that proves that Ms. Capuano was willing to be cross-examined by me personally, and did not require the protection of a 486 appointment.

And, this is such an obvious point, such a significant flaw in my supposed admissions, that it is unbelievable that none of the police, prosecutors, or judges who have been involved in the prosecutions against me over the past three years have noticed.

And, when I explicitly asked Det. Dent, on cross-examination, whether he was aware of any evidence, at all, that I had any involvement with the website during the times relevant to the charge, he admitted he did not know of any such evidence (TR p93l10-27). When asked if he was aware of any evidence that contradicts my claim that I had relinquished ownership and control of the website to a third party prior to the commencement of my probation orders, Det. Dent admitted he was not aware of any such evidence (TR p81l18-22). And when I questioned Det. Dent about what steps were taken in the investigation, to determine what, if any, association or involvement I have had with the website, he responded that there was very deliberately, absolutely no attempts made to determine whether I have any ownership of, control over, or association with the website (TR p63l14-65l34).

When asked whether he had ever found any evidence, at all, that I have ever been dishonest in any of the legal proceedings against me, Det. Dent admitted he had not found any such evidence (TR p81l23-27).

I was required to take certain action within 48 hours of my release and if I took that action, but not within 48 hours of my release then I would not be in compliance (TR p8l5-10); and

if the website had been taken offline for any duration of time within the 48 hours following my release from custody then I would have complied with the condition (TR p136l6-28).

Is the purpose of disclosure, at least in part, so that the defense may be aware of the evidence the Crown might, potentially, use at trial?

Is the Crown required to disclose to the defense, material which the defense may already be aware of, or which may have been used as evidence in a prior matter? If the Crown is not required to disclose material the defense already knows about then that would mean the Crown is not required to disclose the defendant's own statements because the defendant must, obviously, know about them.

The letter was written more than two years prior, so even if the admissions in the letter were true, that I had published the website, that does not mean that I still have ownership or control over the website two years later.

As it was pointed out in my earlier testimony, I was in custody at FRCC when the website was published and, therefore, I could not have been the person who published it, regardless of the fact that I may have "admitted" in the letter to being the person who published it.

The disproportionate prejudice the letter was likely to cause me, due to the clearly antagonistic and mocking tone of much of the letter. While certain parts of the letter, which was written in June 2019 for a specific purpose, may be offensive to some members of the Canadian justice system, there is nothing in the letter which relates to the question of whether, between 2021-08-12 and 2021-08-14, I took all necessary steps to ensure the website was no longer available.

The Crown may argue that the website constitutes criminal harassment and that by admitting I put the website online I would be admitting to committing criminal harassment, even though it occurred prior to me being on probation. However, the Crown, the police, and the judges know that is false. If the Crown really believed there was anything, at all, illegal about the website they would prosecute me for that - not just for breaches of probation. And if the Crown actually believed the website constituted criminal harassment they would absolutely prosecute me for that, especially considering that would mean I have been continuously subjecting Ms. Capuano to ongoing, perpetual criminal harassment for the past seven years and the Crown and the police have done absolutely nothing to stop it (i.e. to actually get the website shut down) for that entire seven years - other than arresting, imprisoning, and prosecuting me (which has had absolutely no effect on causing the website to be shut down).