Transcript of Adjournment Hearing (2021-10-14)
Synopsis
This hearing is critical because this is where prosecutor Chris Johnson and the BC Prosecution Service brazenly lied to the court, claiming they checked the disclosure hard drive they had provided me and that the files contained on it were not encrypted as I was claiming.
My intention was to bring the hard drive to the court, plug it into a laptop in the courtroom, and show the judge the games the prosecution was playing. Since the BCPS had done this (i.e. encrypting the files before providing them to me so I wouldn't be able to access them) at least three times before, it was my belief this was a deliberate ploy to delay giving me the disclosure material so I wouldn't be ready for trial and would have to request an adjournment (thereby prolonging my pretrial detention and, in the prosecutors' simple minds, increasing the likelihood of me accepting a plea agreement).
At the hearing, Johnson offered to take the hard drive to the BCPS office to verify whether my claim of the files being encrypted was true p2l14-18. He later returned and falsely told the court the files were not, in fact, encrypted and he was able to access all of them with no trouble p3l32-35; p4l3-7; p7l46-p8l11. He unequivocally stated that perhaps "Mr. Fox isn't being forthright" p4l10-11 (which is asshole lawyer-speak for "Mr. Fox is lying").
Being quite vexed at being accused of lying by a compulsive liar, who I knew was the one lying, I politely demanded we plug the hard drive into a laptop right there in open court, on the record, and verify in the presence of the judge, with the DARS running, whether or not the files are encrypted p4l39-45. Johnson and the judge became extremely uncomfortable about that, and refused to let me do so p5l5; p5l44-p6l10.
You might be thinking: Imagine that, a lawyer lying; so what, that's what they do. But this is much more significant than simply a lawyer lying. First, it's the prosecutor, not the defense lawyer. The prosecutors are supposed to be "the good guys". They're supposed to be the ones that are honest and ethical. Second, the lies in question were an attempt to cover up the BCPS's own very intentional misconduct (i.e. intentionally delaying the disclosure). Moreover, lawyers and especially prosecutors, are officers of the court. For them to engage in such misconduct, then to lie to the court about it and, as if that's not bad enough, to further lie to the court by claiming it's the defendant who is lying to the court, is an egregious breach of professional conduct.
And for the judge to willfully refuse to acknowledge it's happening and to refuse to allow the defendant to present the proof that it's happening is even more egregious than the prosecutor's conduct because the judge is absolutely required under the very definition of "fair justice" to ensure that kind of misconduct doesn't occur.
Yes, this was a very significant hearing.
PDF244069-8-B
Vancouver Registry
In the Provincial Court of British Columbia
(BEFORE THE HONOURABLE JUDGE SENNIW)
Vancouver, B.C.
October 14, 2021
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
(Adjournment)
(Adjournment)
244069-8-B
Vancouver Registry
In the Provincial Court of British Columbia
(BEFORE THE HONOURABLE JUDGE SENNIW)
Vancouver, B.C.
October 14, 2021
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
(Adjournment)
(Adjournment)
Appearing for Crown Counsel: Chris Johnson
Appearing on his own behalf: Patrick Fox
Vancouver, B.C.
October 14, 2021
Johnson:
Good morning, Your Honour. Chris Johnson, J-o-h-n-s-o-n. I'm counsel appearing on behalf of the Provincial Crown. And I've got conduct of the only matter that's on the list this morning, that's Patrick Henry Fox. And this is Mr. Fox.
Fox:
Hello. Patrick Fox, self-represented.
Judge:
Thank you.
Johnson:
This matter is set for trial today, Your Honour. It's an allegation of breach of a probation order and the gist of the allegation is that Mr. Fox failed to remove a website which he was court ordered to do by way of a probation order.
The Crown has three witnesses. Two of whom are --
Fox:
[Indiscernible].
Johnson:
One moment, please.
Fox:
Sorry. Thank you.
Johnson:
The Crown has three witnesses and two of them have called our office early this morning to indicate that their children are sick and have been COVID tested and they're awaiting COVID results and they were unable to find other child care. So I'm not in a position to proceed. As a result of that, I'm asking the court to consider an adjournment of this matter.
I did have the opportunity to speak to Mr. Fox and there's another issue that he will no doubt raise, which I will raise first because we've discussed it. And that is, that several weeks ago, Mr. Fox wrote a letter to the Crown office addressed to me. That letter came to my attention about ten days ago. And in the letter, Mr. Fox indicates that he's received the disclosure, and the disclose -- there was an initial disclosure package which he did receive. He's confirmed that. Then there was a fuller disclosure package which contained things such as an audiotape of his interview with the police and other items. That was disclosed to him by way of a hard drive on, I believe it was September 15th, Mr. Fox?
Fox:
Correct.
Johnson:
He tells me, in this letter and today, that everything on the hard drive has been encrypted and so he's unable to access it.
Judge:
Oh.
Johnson:
I brought that to my office's attention last week and they indicated that it is not encrypted from our end of the disclosure.
So I've got a situation that I don't know the answer to.
Judge:
Mm-hmm.
Johnson:
Mr. Fox has been --
Judge:
Just a moment, Mr. Fox.
Johnson:
-- kind enough to actually bring the hard drive to court today.
And so to resolve that situation, what I would like is some time this morning so that I can actually look at the hard drive to see what Mr. -- whether what Mr. Fox is telling me is the case.
Judge:
All right.
Yes, Mr. Fox, what would you like to say?
Fox:
I just want to point out with respect to the hard drive that at the jail, I have no ability to encrypt the files myself because the laptops that they provide don't have any software for anything like that. So if there's any question, or if the BCPS tries to claim that perhaps I encrypted them at the jail, I mean that would be an outrageous claim on their part.
Judge:
And I've not -- I've not heard anything to that effect --
Fox:
Right.
Judge:
-- so.
Fox:
And after I had stood, Mr. Johnson then did mention that I brought the hard drive so that it could be checked. And so I just wanted to make sure that the court was aware of -- of that, as well. I wasn't just claiming that the files were encrypted. I -- I actually brought the hard drive.
Judge:
All right. Well, it sounds like you're very well prepared, Mr. Fox.
Fox:
Thank you.
Judge:
And we're hoping to be better prepared, but there was a glitch.
So I'll stand down so that you can have a look at the hard drive, Mr. Johnson. And Madam Registrar will call me when -- when you're done doing that.
Johnson:
Thank you. And I should say, it may take some time.
Judge:
I appreciate that.
Johnson:
Unlike Mr. Fox, I'm -- I'm going to need somebody to assist me to do that and I'll have to locate them, but thank you, Your Honour.
Judge:
Yes, all right. We'll stand down.
Fox:
Thank you.
Clerk:
Order in court.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
Johnson:
Thank you, Your Honour. Chris Johnson appearing for the Provincial Crown and I've got conduct of the Patrick Fox matter and Mr. Fox is now present.
Judge:
Thank you.
Johnson:
So I thank the court for the time. What I did in the interim, I haven't talked to Mr. Fox about this, so I'll just tell him --
Judge:
Put it on the record, mm-hmm.
Johnson:
-- exactly what I did. I went to the Crown office. I spoke to my assistant in the Crown office with the hard drive that Mr. Fox has -- and --
Fox:
May I borrow your -- oh, thank you. Maybe I need to take an appointment.
Johnson:
Thank you.
Fox:
Please, continue.
Johnson:
And we plugged in the hard drive and put in the password and all of the documents came up and we were able to access all of them including the videos.
And Mr. Fox had indicated to me that when he attempted to do that on the laptop at -- that he was provided with at pretrial, he was unable to and indicated that he was receiving a code which, I believe, it was PGP, is that correct, Mr. Fox?
Fox:
No, it's not a code. It's -- it's a flag within the file when you use PGP to encrypt the file, it puts some header information at the beginning of the file. I was able to open the files using Microsoft Word so I could look at the actual bytes that are contained in the file. And those flag was -- that flag was present in each of the files. I individually checked every single file and it was there.
Johnson:
Okay. So the assistant checked all of the files, including the -- I think there's -- I don't want to be quoted wrong, but I think there's six or seven video files that were also operable.
So I don't know what the solution is for this, but what I'm going to suggest is the only -- there's really only two possibilities that I'm able to see. One is that Mr. Fox isn't being forthright. I'm -- I'm not saying that that is the case, but that's a possibility.
And the second is that the equipment that he's been provided with, for some reason, isn't compatible with this hard drive.
That's the only thing I can think of because it is, I'm told, not encrypted and it does not show as being encrypted.
Judge:
Right. So then, what do we do now about making sure that Mr. Fox can access all of his disclosure?
Johnson:
So I'm open to whatever his suggestion is, but my idea or --
Judge:
Mm-hmm.
Johnson:
-- what I could have done is I am willing to send a letter to the powers that be at the pretrial center. And I understand the practice already is that they're to supervise Mr. Spo -- Mr. Fox when he accesses his disclosure. And I will have them ensure that he's able to access it. I think that that is something that I am able to do and they can verify whether these things are encrypted or not encrypted.
And really, the point is, Mr. Fox wants to be able to read everything. And so --
Judge:
Right.
Johnson:
-- hopefully that will take place in that way.
Judge:
Mr. Fox.
Fox:
I would like to propose that Mr. Johnson bring a laptop to the courtroom and we can have a look at the contents of the drive right now in open court on the record and get to the bottom of this once and for all because what Mr. Johnson -- sorry, I'm just -- I'm -- I'm trying to be diplomatic. Yes, that's what I would propose. And if the court is not open to that, then I would secondarily like to propose that, perhaps, Mr. Johnson can bring a laptop to one of the visitation rooms downstairs and we can have a look at the contents of the hard drive right now. I -- I don't think that that --
Johnson:
I don't think that's necessary, because we just did that.
Fox:
Well, no. You just said that -- that, potentially, I'm not being forthright. And so I can --
Johnson:
Well, I'm not relying on that. I'm just indicating there's only two options here that I'm able to ascertain. So I'm not suggesting that you are not being forthright,
I'm just saying --
Fox:
Oh.
Johnson:
-- there are two possible options.
Fox:
Mm-hmm.
Johnson:
I mean, I -- I can't see any others.
Fox:
Mm-hmm.
Johnson:
And so it seems to me given that what Mr. Fox is saying, that what's important here is that you be able to access your disclosure.
Fox:
I disagree.
Johnson:
Not whether you're able to prove that I'm being forthright or not. To have --
Judge:
Right.
Johnson:
So --
Judge:
So what is it that you disagree with, Mr. Fox?
Fox:
I think that the important thing, from my perspective, is not that I can access the disclosure, but that I can prove the corruption and the misconduct that the B.C. Prosecution Service has been engaging in for the past five years, in my case and in others as well, but we're only concerned with my case at this point. This is the third time now that they've provided encrypted files. And every time they do that, they put on this big show and pretend that they have no idea what's going on and that it was an honest mistake.
But doing the same thing three times is clearly not an honest mistake.
Judge:
Well, and first of all, I'm a technological dinosaur. So I'm coming from that place. It does seem to me that if they can be read, that they should be able to be read at North Fraser with appropriate software, whatever that might be. And so I'm inclined to go ahead with what Mr. Johnson has said.
But to address your -- your concern, as you are no doubt aware, when you come before the court on the information that you've been charged with, the issue for the court is very narrow. And so if you have some concern about maleficence on the part of the prosecution service, that's not something that a judge sitting here on this matter can deal with.
So I just want to make sure that we've got everything kind of narrowed down. And the key thing for a judge sitting in this position on this matter is that you have access, and I would like to say in a relaxed fashion, so not sitting in a courtroom here with Mr. Johnson, but at your leisure at North Fraser in a room where you can take all the time you need to access your disclosure.
And your secondary issue, which as I said, this court cannot deal with, you may need more time to kind of look at that than what would be provided here. So at the present time then, I'm going to accede to Mr. Johnson's suggestion, and that is that he write to the powers that be at North Fraser to make sure that you can access the -- that they provide you with proper equipment so that you can access the disclosure.
Certainly, I would have no reason to know anything about why it might be encrypted, particularly, from my ignorant point of view as far as technology is concerned. And if there is a difficulty accessing it, you can certainly come back before the court.
Now -- but dealing with the earlier application because Crown witnesses were not available, I'm assuming, Mr. Johnson, that they are available at another time and they are material witnesses?
Johnson:
Yes, that's correct, Your Honour.
Judge:
All right. So -- and there have been no laches. So following the dicta in Darville, I will grant the adjournment.
Now, this matter was set for two days. I'm assuming that's still appropriate?
Johnson:
I thought it was set for one.
Judge:
Maybe it was set for one, I'm sorry.
Johnson:
I believe it is set for one day. I've indicated to Mr. Fox that I'm likely to rely on the most witnesses I would rely on is three, and hopefully not three, but I can conduct the Crown's case in about two hours and so Mr. Fox --
Judge:
Would have the rest of the day.
Johnson:
Yes.
Judge:
Yes. So did you wish to set the new trial date today while you're here?
Johnson:
I -- I think what I would propose is that we -- if Your Honour could adjourn the matter to the judicial case managers, but also have a follow-up date, I'm thinking two weeks, and the reason I'm going to suggest that, is because I'm going to get that letter sent to the pretrial today.
Judge:
Mm-hmm.
Johnson:
And so Mr. Fox should be able to access his disclosure next week and so I would like to hear from Mr. Fox in two weeks whether that's occurred or not. And he could -- he could appear by video so he doesn't need to come.
Judge:
All right. And so did you wish then to put the fix date for the new trial over to that two week time, as well?
Johnson:
Yes, but if we could be adjourned to the judicial case managers today, then I can arrange a new date today and we can confirm it in two weeks.
Judge:
Yes, so I'll adjourn the matter to the judicial case manager. And what day would you like to come back in the initial appearance room with Mr. Fox to appear by video?
Johnson:
Thank you, Your Honour. Just one moment, please.
The -- exactly two weeks from today, I believe, is the 28th of October. That's a Thursday and that would be agreeable.
Judge:
All right. So to October 28th, at 9 o'clock in the initial appearance room. And that is two-fold, to put the new trial date on the record and secondly, to confirm -- I'm hoping it will be to confirm -- that Mr. Fox has been able to access the disclosure, and if not, obviously, then appropriate steps would be taken after that.
Fox:
Okay, great. And I just have one question I want to confirm with Mr. Johnson here. So are you saying, then, that you actually saw the files being opened? They were able to be opened, is that what you're saying?
Johnson:
Yes.
Fox:
The PDF files and the video files, or?
Johnson:
Well --
Fox:
Okay.
Johnson:
Okay, all of the -- every single file was --
Fox:
Mm-hmm.
Johnson:
-- opened.
Fox:
That's fine. Just want to make sure that you stated that on the record and that that was very clear.
Okay, thank you.
Johnson:
And Your Honour, just while we're here on the record, Mr. Fox did provide me a large envelope with six pages of paper and the hard drive and I'm returning those to him now.
Thank you.
Judge:
All right, thank you. We'll stand down and the court will take the morning break.
Fox:
Thank you.
Johnson:
Thank you, Your Honour.
(PROCEEDINGS ADJOURNED TO JCM TO FIX A NEW DATE)
Transcriber: J. Vanin