Transcript of Bail Hearing (2021-08-18)
PDFBCSC File No. 32532-1-W
244069-8-B
Vancouver Registry
In the Provincial Court of British Columbia
(BEFORE THE HONOURABLE JUDGE J.F. GALATI)
Vancouver, B.C.
August 18, 2021
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT
JUDICIAL INTERIM RELEASE HEARING
JUDICIAL INTERIM RELEASE HEARING
244069-8-B
Vancouver Registry
In the Provincial Court of British Columbia
(BEFORE THE HONOURABLE JUDGE J.F. GALATI)
Vancouver, B.C.
August 18, 2021
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT
JUDICIAL INTERIM RELEASE HEARING
JUDICIAL INTERIM RELEASE HEARING
Crown Counsel: Chris Johnson, Q.C.
Appearing on his own behalf: Patrick Fox
Defence Counsel: Susan C.M. Daniells, Q.C., Duty Counsel
INDEX
- SUBMISSIONS FOR CROWN BY CNSL C. JOHNSON
- SUBMISSIONS FOR ACCUSED BY CNSL S. DANIELLS
- SUBMISSIONS FOR CROWN BY CNSL C. JOHNSON, CONTINUING
- SUBMISSIONS FOR ACCUSED BY PATRICK FOX
- REPLY FOR CROWN BY CNSL C. JOHNSON
- REPLY FOR ACCUSED BY CNSL S. DANIELLS
EXHIBITS
- Nil
RULINGS
Vancouver, B.C.
August 18, 2021
(VIDEOCONFERENCE COMMENCES)
(CROWN COUNSEL C. JOHNSON, DEFENCE COUNSEL S. DANIELLS AND THE ACCUSED AT REMOTE LOCATIONS)
Johnson:
Good morning, Your Honour. It's Chris Johnson, J-o-h-n-s-o-n. I'm Crown on one matter that should be on your list. It's the matter of Fox, Patrick Fox.
Clerk:
Number 43.
Johnson:
He's in custody.
Judge:
Number what?
Clerk:
Forty-three, Your Honour.
Judge:
Is there counsel on that one, Mr. Johnson?
Daniells:
No, Your Honour. It's going to be duty counsel. Susan Daniells. I've spoken to Mr. Fox.
Johnson:
The Crown is showing cause on that matter, Your Honour. It just -- it's a breach from yesterday. There's quite a long history. I think it will probably take -- if we really are concise we could do it in 20 minutes.
The problem I have is that I'm assigned to the file and I'm not available after 11 o'clock this morning. So if we could do it now, that would be terrific, but I just don't know if we can.
Judge:
Okay. Where is Mr. Fox? North Fraser?
Sheriff:
Downstairs, Your Honour.
Judge:
Oh.
Sheriff:
Do you want me to call for him?
Judge:
Yeah. You're ready to go?
Sheriff:
Yes.
Judge:
By all means, call for him. That's an interesting condition on the Fox matter. Is it on the pick list? All right.
You're Mr. Fox?
Fox:
That is correct.
Johnson:
Chris Johnson, Your Honour, for the record. J-o-h-n-s-o-n. I'm appearing for the provincial Crown on this matter.
Daniells:
Susan Daniells as duty counsel, Your Honour. Mr. Fox has agreed that I can make some submissions. He may wish to make some himself. He's seeking his release.
SUBMISSIONS FOR CROWN BY CNSL C. JOHNSON:
Johnson:
Your Honour, Mr. Fox is before the court on Information Number 244069-B-8, and in that regard it's an allegation of a breach of Judge Rideout's probation order which was issued April of this year. At that time Mr. Fox was convicted of breaching his [indiscernible/remote audio] and was sentenced to six months imprisonment, which was actually a 16-month sentence given time served.
Judge:
Okay. Mr. -- Mr. Johnson, you're breaking up here, so I'm only hearing every second word.
Johnson:
Thank you.
Judge:
So the probation order was imposed April 12th for what offence?
Johnson:
Breach of probation. And at that time Mr. Fox was sentenced to 16 months in jail, but he had quite a bit of time served, so he received an effective sentence of six months and was released from that sentence on August the 12th of this year. And so after his release he was monitored by the police. He went and lived at Belkin House, which is a residence in Vancouver. He -- the police were interested in knowing whether he would cooperate with his -- comply with his order because he'd failed to do so on a number of previous occasions.
They checked -- he had set up a website some time ago called www.desicapuano.com. And Desi Capuano is Mr. Fox's former spouse. So Mr. Fox has been before the court for many years now with respect to operating this website which relates to his former spouse.
In any event, the police checked the website and they found that, lo and behold, Mr. Fox had not removed the website within 48 hours as he was required to do so, and so he was arrested yesterday, and I approved this charge yesterday evening. So he's before the court on that matter.
He does presently have -- I should say that he's appealed the conviction of Judge Rideout and the court recently -- that is the Court of Appeal recently issued a decision. And I'm going to review two paragraphs of that decision for Your Honour's reference because it gives the court a flavour of Mr. Fox and his situation.
So the decision is R. v. Fox, 2021 BCCA 308. And paragraph 4 the court of appeal state:
Since 2014, the appellant has engaged in a relentless campaign of harassment directed at his former spouse. Among other things, the appellant created a website in the name of his former spouse. The website contains a large amount of private information about the appellant's former spouse and others with whom she is associated. The purpose of the website appears to be to denigrate, humiliate and intimidate her, to interfere with her personal relationships, and to impair her economic prospects and emotional security.
Then in paragraph 16 of that decision the court says:
Det/Cst. Dent testified that on September 16, 2020, he accessed one of the website domain names referred to in the probation order imposed by Phillips P.C.J. Its home page contained an entry dated August 19, 2020, at 1:53 p.m., which was written as a first person letter to the Attorney General of British Columbia. As I understand it, the appellant contends that this letter was written the day before the probation order came into effect. The entry refers to the proceedings before Phillips P.C.J. and emphasizes "how ineffectual and impotent the Canadian justice system is because they can't even make a little pissant nobody like myself take down a website." The entry further asserts that "they can lock me up for the rest of my life, but I will never take down the website."
Mr. Fox was arrested by the police yesterday morning and at that time he indicated a couple of things. One of which was that he had, he maintained, emailed the website and [indiscernible/background noise] --
Fox:
I'm sorry, I didn't get that.
Johnson:
That he had emailed the website operators and asked them to remove it.
Fox:
Okay.
Judge:
Sorry. That's what he told the police?
Johnson:
That's what he told the police.
When they arrested Mr. Fox, he was in possession of both a cellphone and a laptop computer. And they asked him to show them the email that he maintains that he sent, and he refused to do so. So the inference that I take from that is that he didn't in fact do that, but of course inferences are for Your Honour, not me.
Mr. Fox has a history with a review -- if Your Honour can just give me one -- I'm referring to documents myself. Sorry, Your Honour. Just one moment.
Your Honour, perhaps so that I don't waste the court time, while I'm -- what I -- the only thing I want to add to my submissions here is Mr. Fox's history. And so I don't know if Ms. Daniells wants to proceed while I'm looking for it, but I know I have it, so I'm in Your Honour's hands as to what we should do. I'm just searching for it at the moment.
Daniells:
Well, why don't I proceed, if Mr. Fox indeed does wish to continue on today.
So, Mr. Fox, when we spoke earlier you thought you might or might not wish to proceed. Do you want to do that today or do you want a few days to prepare.
Fox:
At this point there's nothing that I have to challenge Mr. Johnson on because so far he hasn't gone on with any outrageous lies about me, so we can proceed. But I do want to point out that I --
Daniells:
All right. Mr. --
Fox:
Sorry?
Daniells:
Mr. Fox, why don't -- why don't I start and then you can fill in when I've finished what I have to say. How does that sound?
Fox:
No. Because here's the thing: I'm in a closet. I have no paper, no pen. I can't take any notes to keep track of who's saying anything that I want to respond to. So the best I can tell you is please go ahead and hopefully will do a good job here. Who knows.
Daniells:
All right.
Judge:
Well --
Daniells:
So, Your Honour --
Judge:
Just -- yeah. I just want to be clear what's happening here. Either this bail hearing is going to go ahead and conclude or you can withdraw your application for bail now. It's unlikely that I'm going to agree to adjourn this once we're deeply into it. Just so that you're clear on that, Mr. Fox.
Fox:
Okay. I'm clear.
Judge:
Okay. So if you want to be better prepared in terms of having access to pen and paper and making notes, et cetera, you may want to withdraw your application today and start over.
Fox:
No, let's proceed.
Judge:
Okay.
Daniells:
Yes, Your Honour.
SUBMISSIONS FOR ACCUSED BY CNSL S. DANIELLS:
Daniells:
Mr. Fox tells me he's 47 years old, born in Florida. He's been in Canada since 2013. I understand from him that he is --[indiscernible/ remote audio]. Now, I'm getting quite a bit [indiscernible/remote audio].
Judge:
Okay. Ms. Daniells, same thing. I -- you're fading in and out too.
Daniells:
Yes. I could hear what sounded like a waterfall briefly, but I think -- I think I'm back in.
Judge:
Yes.
Daniells:
So Mr. Fox has indicated he's 47 years old, born in Florida. He has been in B.C. since 2013. He's certainly prepared to stay here until these matters are concluded and he has been, as indicated, staying at Belkin House.
I understand from him that he has a degree from UCLA in computer science and he is -- has in the past worked as a software [indiscernible/ remote audio]. He tells me that he has, since released, contacted the people who run the site that this material is on and has indeed requested that it be taken down. When he spoke to the police he advises me they asked -- or rather, required he show them his entire email transactions, which he was not prepared to do. But when I spoke to him this morning he told me if he could get access to a computer, he would be in a position to print the email that he sent requiring the site be taken down. Although he created it, [indiscernible/remote audio] to take it down. That is up to the administrator following his direction and [indiscernible/remote audio] --
Judge:
Sorry, Ms. Daniells, this isn't working for me. I…
Daniells:
Sorry, Your Honour.
Judge:
I can only hear part of what you're saying. I think I got that the police wanted access to all of his emails and he's willing to produce the one email.
Daniells:
That's correct.
Judge:
Okay.
Daniells:
Anything you wanted to add to that, Mr. Fox?
Fox:
After you said the part about the emails you were then explaining about -- that while I did originally create the site and make the site public, before the probation began I transferred ownership of the site to a third party so that I couldn't be compelled to take it down because of the probation conditions. Since I've been on probation, I don't have ownership and control of the website and the Crown has failed to produce any evidence whatsoever that I had any involvement in the website since then. Of course that hasn't stopped me from being convicted and found guilty of these things.
Judge:
So, sorry, just so that I'm clear. You transferred the website to a third person?
Fox:
In the United States, yes. Somebody who could not be coerced or pressured by the Canadian authorities because they're not in Canada.
Judge:
Okay. So the purpose of that was so that you wouldn't have to take it down.
Fox:
Well, right. If I don't own it, then I can't be compelled to take it down.
Judge:
Okay. Was that before the sentencing judge?
Fox:
That was before the probation began in December 2018.
Judge:
But who was the sentencing judge? It was Judge Rideout, I think.
Fox:
Yes. I'm sorry. Yes. That information was presented to the sentencing judge in both cases, Phillips and Rideout.
It should also be noted in the reasons for judgment of both of those convictions, both of those judges acknowledged that the Crown did not prove that I have any involvement or ownership of the website, but regardless.
Johnson:
Well, I'm going to disagree with the term "involvement," Your Honour, but we can address that later.
Judge:
Okay. So -- just so that I can understand here, Mr. Fox. So it's your position with respect to the charge that you're facing right now that you can't comply with it even though you are also saying that you have tried to comply with it.
Fox:
That is correct. And I can say that I can certainly continue to try to contact the current administrators of the site and ask them to take it down until my probation is done or until I leave Canada or something, but I can't compel them or force them to do anything against their will.
Hey, Mr. Wolfe.
Oh, also I think it's critically important that I believe the Crown's interest in this website is not protecting my ex-wife, Ms. Capuano; it's because there's a lot of proof of corruption that's been going on in my cases on the part of the Crown. I believe that's what they're really interested in.
Johnson:
Your Honour, I do have the history that I can put before the court now, if Your Honour is --
Judge:
Sure.
Johnson:
Is this an appropriate time for that? I don't -- I've sent a copy of it to Ms. Daniells by phone. But it is important for Your Honour to be aware of this.
Judge:
Yes.
SUBMISSIONS FOR CROWN BY CNSL C. JOHNSON, CONTINUING:
Johnson:
So in -- on January 11th of 2015 Mr. Fox was charged with a series of offences. And he can correct me if I'm wrong, but I believe it was seven offences. He was then convicted in Supreme Court on November the 10th of 2017 and was convicted of criminal harassment and possession of a firearm. And then the sentence that he received at that time was a three-year jail sentence with respect to the criminal harassment. He was given some credit for time served and ended up with an actual sentence of 17 months at that point in time.
And then the court put him on a three-year probation order which included dealing with this particular website. He also received a 17-month [indiscernible/remote audio] with respect to the firearms offence. And that's an allegation [indiscernible/remote audio] that he was in possession of a firearm while attempting to enter [indiscernible/remote audio]. And Mr. Fox may be able to clear that up --
Fox:
Yes.
Johnson:
-- [indiscernible/overlapping speakers] that.
Fox:
Yes. There was a huge number of inaccuracies in everything you just said. Are you finished, or should I proceed now?
Judge:
Well --
Fox:
I'm glad you find this funny, Mr. Johnson.
Johnson:
I will say, Your Honour, that in addition to that, then subsequently because of not complying with the order to remove the website, on June the 12th of 2020 Mr. Fox was convicted of two counts of breach of the probation order. And that was with -- that was Judge Phillips that he had appeared before. And at that point in time he was credited with eight months time served and received a jail sentence of one day, and so it was effectively a six month sentence reached. And he was also put in probation for 18 [indiscernible/ remote audio] at that point in time.
Judge:
Sorry, put on probation for 18 months?
Johnson:
Yes.
Judge:
Okay. And these two breaches, what were they? Failing to deal with his website?
Johnson:
Yes.
Fox:
No, that's not correct. Those were before Judge St. Pierre and those were being within a hundred metres of the U.S. border and leaving B.C. without permission.
Johnson:
Actually, I stand corrected. Mr. Fox is correct, Your Honour.
Fox:
I'm always correct, Mr. Johnson.
Judge:
Okay.
Johnson:
I may not agree with that portion, but yes, that is correct. Then, Your Honour, on August the 19th of 2020 Mr. Fox was convicted of another breach of the probation order and that was Judge Phillips, I believe.
Fox:
Yes.
Johnson:
And Mr. Fox was -- and I was the Crown at that point in time. That's when I first became involved in Mr. Fox's matters. And the sentence that he received was a six-month jail sentence. Because he'd been in custody for a period of time, he was given credit for four months. And he was then sentenced to a further probation order of six months. Then, Your Honour --
Judge:
Just let me catch up. So the first two breaches were not Judge Phillips; they were Judge…
Johnson:
St. Pierre.
Judge:
St. Pierre.
Johnson:
Yes.
Judge:
Okay.
Johnson:
Those were the -- the breaches were dealt with on June 12th [indiscernible/remote audio].
Judge:
Okay.
Johnson:
And then August the 19th of 2020 it was one breach [indiscernible/remote audio] before Judge Phillips. And the sentence that was imposed was the one that I've just described.
Judge:
And what was the breach?
Johnson:
I'm just trying to recall. I don't -- I've got -- Mr. Fox? I'm sure he's well aware and I'm going to rely on his description.
Fox:
Failing or refusing to take down the website.
Judge:
Sorry, failing to take down the website?
Fox:
Correct. That was the first time that I was charged with breaching that.
Johnson:
And then, Your Honour, he was again required to take down the website and again did not do so and again came before the court. This was on April the 12th of this year. This is Judge Rideout. And Mr. Fox had a trial and was convicted.
He was then sentenced to a term of 16 months of jail. Because of time served, the effective jail sentence at that point was six [indiscernible/remote audio]. And he was then also sentenced to a further term of probation and that probation again required him to remove the website, not to simply send an email or say he sent it. Actually remove the website within 48 hours of your release from custody.
Again -- Mr. Fox is now before the court on -- this would be the fifth breach allegation and the third one directly relating to this website and his failure to remove it. The website, Your Honour, I did once review it and it contains as I've already described [indiscernible/remote audio] the Court Appeal. It's not just information about his ex-wife, but he's got [indiscernible/remote audio] allegations and quotes about various lawyers, et cetera. But that's -- the gist of what the Crown is concerned about here is this unrelenting campaign against his spouse which is now in its seventh year.
And I would suggest too, Your Honour, that Mr. Fox on the secondary ground is entirely likely to continue reoffending. And I'll just say that the police report that I viewed does not indicate that they wanted to look [indiscernible/remote audio] email chain. It indicates that they wanted to see the email that Mr. Fox referenced.
Fox:
May I address a few points that were grossly incorrect in Mr. Johnson's statements?
SUBMISSIONS FOR ACCUSED BY PATRICK FOX:
Fox:
Thank you. First of all, with respect to the firearms charge, that wasn't possession of a firearm. It was possession of a firearm in a place not authorized. I had a firearms licence and I was fully legally authorized to own and possess those firearms. What happened was when I was moving back to Los Angeles I took my firearms with me to Los Angeles. The allegation was that I brought the guns to a shipping facility so I can ship them there, but my [ATT] didn't authorize me to bring them there. So it was an administrative offence; it wasn't anything related to possessing firearms I wasn't allowed to have.
The other point that I wanted to make is that Mr. Johnson wants the court to believe that they're trying to protect Ms. Capuano from this ongoing torment that's been going on for years from this website. However, they refuse to prosecute me for criminal harassment again based on this website. If they convicted me of criminal harassment for this website back in 2016 and if I put the website back online, it must still be criminal harassment. That's a much more serious offence than a probation violation. So their claim on that does not stand up to even the tiniest scrutiny. They can't say that they're trying to protect Ms. Capuano but then ignore the criminal harassment element of it.
Sorry?
Judge:
No, no, go ahead. Finish up.
Fox:
Sorry, that's all I can remember from what he was saying.
Judge:
Okay. And actually, just to correct you there, Mr. Fox, the Crown can do that. They can ignore whatever they want to ignore. It's up to the Crown to decide what to proceed with and what not to proceed with.
Fox:
I understand they can. What I mean is it's illogical; it's not rational.
Judge:
Fair enough. Mr. Johnson, what -- what I'm not -- what -- my question really relates to the strength of the Crown's case on the charge that Mr. Fox is currently facing. How -- what is the Crown's theory of how it will prove this charge?
Johnson:
Well, the probation order is barely [indiscernible/remote audio] that he's required to remove [indiscernible/remote audio].
Daniells:
I can't hear Mr. Johnson. I think [indiscernible/remote audio] --
Judge:
Okay. Sorry. This really isn't working. It's worse than yesterday. Sorry, Ms. Daniells. I'm not blaming you, but I can't hear you. Every second word.
Johnson:
Your Honour, I pointed this out in the past, but it's when the clerk moves files that it causes disruption in the transmission.
Judge:
Okay. Well, let's try not to move anything and see if that helps.
Johnson:
Thank you.
Daniells:
It has already. Thank you.
REPLY FOR CROWN BY CNSL C. JOHNSON:
Johnson:
So, Your Honour, just on that point of, firstly, your inquiry. I say that the probation order requires him to remove that website regardless of whether he's assigned it to someone else.
Mr. Fox created that website and he is, as far as the police are concerned and the evidence, it doesn't appear that someone else is operating that website.
Your Honour, the post that referenced from last year was -- the only inference from that is that it was Mr. Fox saying that on that website. The fact that he says he's sent an email isn't really evidence because he was given the opportunity to show that email and failed to do so. He's maintained before two of your fellow judges this exact same story, that is that he's assigned this website to someone else. That hasn't been accepted on the evidence. And he's again giving us the same story.
And just lastly, Your Honour, Mr. Fox has also been requesting during the period of time that I've had conduct of these matters that he be charged with criminal harassment. And I'm -- I've declined to do that because my conclusion is that Mr. Fox wants us to have to call his former spouse as a witness. So that's not the only reason. [indiscernible/remote audio] it's a clear breach [indiscernible/remote audio].
Judge:
Okay.
REPLY FOR ACCUSED BY CNSL S. DANIELLS:
Daniells:
Yes. I'll just reiterate, Your Honour, he's made it clear that he does not control the website. He's done what he can last week to direct that it be taken down.
Judge:
Anything else?
Daniells:
No, Your Honour.
Johnson:
No, thank you.
Judge:
Okay.
[REASONS FOR JUDGMENT RE JUDICIAL INTERIM RELEASE HEARING]
Judge:
Return date?
Daniells:
How soon can he get particulars, Mr. Johnson?
Johnson:
Well, that's [indiscernible/audio cuts out.].
Judge:
Okay. Mr. Johnson, I cannot --
Johnson:
I'm just waiting for the clerk to finish moving the files. Thank you. Your Honour, disclosure for Mr. Fox, the Crown has a procedure where it's disclosed to him electronically on a web -- on a laptop at North Fraser. I would say that that would probably take a week. The reason we have this procedure is because Mr. Fox has, on a number of occasions, published parts of the [indiscernible/audio cuts out].
Daniells:
So one --
Fox:
Your Honour --
Daniells:
-- week, would that --
Fox:
Sorry, Ms. Daniells, if I may. My experience with Mr. Johnson and the disclosure, particularly from this last charge a year ago, he's going to ignore all of my requests until three days before the trial. That's when he provided me disclosure the last time. So whatever he says he's going to do about the disclosure at this -- well, actually, for you it's not really going to be a concern, because I'll be representing myself at that point, but it's not -- it doesn't matter what he says at this point. I mean, they'll delay giving me the disclosure as much as they can.
Judge:
Okay. So, Mr. Fox --
Fox:
Yeah.
Judge:
-- pick a date that you want to come back to court.
Fox:
Any -- anytime. I mean, it doesn't matter. I'll be in custody until who knows when, so -- but I would like to point out one thing --
Judge:
So a --
Fox:
-- if I --
Judge:
-- couple weeks is fine?
Fox:
Yeah, sure.
Judge:
Okay.
Fox:
[Indiscernible/overlapping speakers.] --
Judge:
What does a couple weeks bring us to? Is that a Wednesday? So September 1? That will work for everyone?
Fox:
Yes.
Johnson:
Yes.
Judge:
And that will be -- in what court do you suggest, Mr. Johnson?
Johnson:
I would --
Daniells:
102, I think, Mr. Johnson.
Johnson:
Yes, I agree --
Judge:
I think so, too.
Johnson:
Yes, I agree with that.
Judge:
Okay. Now, you wanted to say something else --
Fox:
Yes.
Judge:
-- and I cut you off, so go ahead and say whatever it was.
Fox:
Thank you. Mr. Johnson and the Crown insists that I have control over this website, and that's fine; but if I have control over the website and I'm going to be detained, I have no access to the Internet. So, by detaining me, they are preventing me from being able to take down the website. You see, logic and reason do not apply with the B.C.P.S.
Judge:
Okay. Well, Mr. Fox, as I have indicated in my brief remarks --
Fox:
Yes.
Judge:
-- I have -- I can see that there may be a triable issue with respect to the charge, but that is --
Fox:
Right.
Judge:
-- not the issue before me today. So --
Fox:
I under --
Judge:
-- muster your arguments and make them at trial if you are going to be representing yourself.
Fox:
Mm-hmm.
Judge:
In the meantime, your next appearance will be by video September 1 at 9:30 in Courtroom 102. Thank you --
Fox:
Wonderful.
Judge:
Thank you very much.
Johnson:
Your Honour, just before we leave, my office is about to undergo renovations, and so I'm going to ask Mr. Fox to address any correspondence to me to the courthouse at 222 Main Street and not my office address.
Fox:
Okay.
Judge:
Okay. Thank you all.
Johnson:
Thank you.
Daniells:
Thank you.
(PROCEEDINGS ADJOURNED TO SEPTEMBER 1, 2021, AT 9:30 A.M.)
Transcriber: A. Pinsent