Transcript of Trial Proceedings (2022-02-23)

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Court of Appeal CA48145

COURT OF APPEAL

ON APPEAL FROM THE PROVINCIAL COURT OF BRITISH COLUMBIA, FROM THE JUDGMENT AND SENTENCE OF THE HONOURABLE JUDGE DENHOFF, PRONOUNCED ON THE 25TH DAY OF FEBRUARY 2022.

REGINA

RESPONDENT

v.

PATRICK FOX

APPELLANT

TRANSCRIPT

BAN ON PUBLICATION 486.5(1) CCC

Ministry of Justice, Solicitors for the Crown (Respondent)
Criminal Justice Branch, Criminal Appeals
6th Floor, 865 Hornby Street
Vancouver, B.C. V6Z 2G3
Phone: (604) 660-1126

Ursula Botz, Q.C.

Patrick Fox, Appellant
Appearing on his own behalf

J.C. WordAssist Ltd. (Port Coquitlam)

202-2608 Shaughnessy St., Port Coquitlam, B.C. V3C 3G6

Phone 778-285-3425

244069-8-B

Vancouver Registry

In the Provincial Court of British Columbia

(BEFORE THE HONOURABLE JUDGE DENHOFF)

Vancouver, B.C.

February 23, 2022

REGINA

v.

PATRICK HENRY FOX

PROCEEDINGS AT TRIAL & SENTENCE

BAN ON PUBLICATION 486.5(1) CCC

Crown Counsel: Chris Johnson, Q.C.

Appearing on his own behalf: Patrick Fox

221908_TRANSCRIPT

J.C. WordAssist Ltd. (Port Coquitlam)

202-2608 Shaughnessy St., Port Coquitlam, B.C. V3C 3G6

Phone 778-285-3425

INDEX

WITNESSES FOR THE CROWN

EXHIBITS

Nil

RULINGS

Nil

Vancouver, B.C.

February 23, 2022

Johnson:

Good morning, Your Honour, it's Chris Johnson, J-o-h-n-s-o-n. I am appearing on behalf of the Provincial Crown.

Judge:

Yes, thank you.

Johnson:

And I have conduct of the Fox matter. So, I can call number 1 on Your Honour's list, Patrick Fox.

Judge:

Okay. Thank you. Thank you.

Good morning, Mr. Fox and just to confirm again, you're representing yourself?

Fox:

Yes, thank you and good morning.

Judge:

Okay. And last day we had talked about some disclosure you were requesting from the Crown and did you receive that disclosure?

Fox:

I did, yes.

Judge:

Okay. Good. So, we're ready to proceed to trial today?

Johnson:

Yes, and just, Your Honour, just say, on the record, I did provide Mr. Fox today with paper copies of all the disclosure for this matter. And in addition, I've provided him with a copy of an information to obtain a search warrant that was engaged in in this matter.

Judge:

Okay.

Johnson:

Just with respect to that, I can advise Your Honour that the Crown is not leading anything that was obtained as a result of that, so there may be some objection to his pursuing that.

Judge:

Right.

Johnson:

And -- and I've advised him of that. And I've also given him a USB stick which contains an interview between him and Detective Constable Dent on a previous file. And Mr. Fox is of the view that that has some relevance and so, I don't necessarily share that view, but in the interests of fairness, I've provided that to him.

Judge:

Okay. Good.

Johnson:

And I intend to call three witnesses today who are Catherine Meiklejohn, who is a -- I believe her title is crime data analyst, or data analyst with the Vancouver police department.

Judge:

Mm-hmm.

Johnson:

Then I intend to call Detective Constable Tanino and she conducted an interview with Mr. Fox after he was arrested in this matter.

And then I intend to call Detective Constable Dent, who arrested Mr. Fox.

Judge:

Okay. Good.

You'll have an opportunity, at the end of the Crown's case, to call evidence, but you don't have to call evidence. If you think the Crown has not met the onus of proof, if you think they haven't proven the case beyond a reasonable doubt, you can simply make argument about that. You don't have to call a defence.

All right. So, I know we talked about this at previous appearances, Mr. Fox, but just for your benefit, because you're not represented by legal counsel, it's the prosecution's obligation to prove this case beyond a reasonable doubt. In other words, they need to prove the allegations contained in the information against you beyond a reasonable doubt.

If you feel that the evidence calls for an answer, or there's information that you want to put before the court for the court to consider, then you'll have the opportunity to call witnesses, or to -- or/and to testify yourself.

Is there -- do you have any questions about the process?

Fox:

No, I don't. Thank you.

Judge:

Okay. If you have any questions throughout the trial, just let me know, will you?

Fox:

Okay. Yes.

Judge:

Thank you.

Okay. Thank you, Mr. Johnson, you can proceed to lead the Crown's case.

Johnson:

Thank you. Then I will call Catherine Meiklejohn, please.

Judge:

Yes.

Johnson:

I can go and get her then.

Judge:

Oh, okay, thank you. Sometimes the page doesn't work very well.

Johnson:

Ms. Meiklejohn has indicated that she will affirm.

Judge:

Okay. Thank you.

CATHERINE MEIKLEJOHN

a witness called for the Crown, affirmed.

Clerk:

Please state your name and badge number for -- for the record and spell your last name.

Meiklejohn:

Catherine Meiklejohn, M-e-i-k-l-e-j-o-h-n and I'm a civilian.

EXAMINATION IN CHIEF BY CNSL C. JOHNSON:

Johnson:

Ms. Meiklejohn, I understand that you're a civilian employee of the Vancouver Police Department; is that correct?

Meiklejohn:

Yes.

Johnson:

And your job title is?

Meiklejohn:

Crime data analyst.

Johnson:

And how long have you been employed as a crime data analyst by the Vancouver Police Department?

Meiklejohn:

I've been in that position for 10 years. I've been with the department for 25.

Johnson:

And are you able to just very briefly describe what's involved in your job?

Meiklejohn:

I assist with investigations, do background searches on offenders. Provide statistics for outside agencies. A lot of open source searching, anything that's required.

Johnson:

And -- and when you say searching, you mean on the internet?

Meiklejohn:

Yes.

Johnson:

Now, with respect to this matter, you're familiar with the matter of Patrick Fox, are you?

Meiklejohn:

Yes.

Johnson:

And you received an assignment with respect to this particular case; is that correct?

Meiklejohn:

Yes.

Johnson:

And could you tell Her Honour what that assignment was?

Meiklejohn:

I was just asked to see if the website desicapuano.com was still online, as well as the website desireecapuano.com.

Johnson:

And do you have an understanding as to Desi or Desiree Capuano is?

Meiklejohn:

I understand that she is the ex-spouse of the defendant.

Johnson:

And were you given a -- first of all, are you able to advise us when you were asked to this?

Meiklejohn:

On August 9th, I was asked by Constable Dent.

Johnson:

And that's August 9th of 2021?

Meiklejohn:

Yes.

Johnson:

And did Constable Dent indicate to you when it was that he wanted you to check to see if this website was active?

Meiklejohn:

Yes, he asked me to check the dates of August 12th, 13th, 14th and 15th, 2021.

Johnson:

And did you, on August 12th, 13th, 14th and 15th, search the internet, or check the internet to see if either of the websites, desicapuano.com and desireecapuano.com were active?

Meiklejohn:

Yes, I did.

Johnson:

And could you please tell the court what you found?

Meiklejohn:

I found that the website desicapuano.com was still online and the website desireecapuano.com was no longer online.

Johnson:

And with respect to the website desicapuano.com, when you say it was still online, can you explain what you mean by that?

Meiklejohn:

So, there was blog posts, historical documents --

Judge:

Sorry, there were?

Meiklejohn:

Blog postings.

Judge:

Oh, blog postings --

Meiklejohn:

Yes.

Judge:

-- yeah.

Meiklejohn:

Court documents from previous trials, photographs of the victim and her family members and friends and the latest -- the last blog post -- let me just check with my -- the last thing --

Judge:

Are you -- just -- just before you do that, are you wanting to check your notes?

Meiklejohn:

Yes.

Judge:

Okay. When did -- I just need to find out, when did you take those notes?

Meiklejohn:

I took them, I believe it was the 16th of August, I -- I wrote my evidence for the detective --

Judge:

All right.

Meiklejohn:

-- and submitted it.

Judge:

And you want to refresh your memory from those notes?

Meiklejohn:

Yes, I just wanted to refresh my memory on the last blog post date.

Judge:

Okay. And you -- you don't have any objection to her looking at her notes --

Fox:

No, I don't.

Judge:

-- Mr. Fox?

Okay. Go ahead then, please.

Meiklejohn:

A search -- the last posting made was a blog post called Dear People --

Judge:

Just -- just a moment. Dear People?

Meiklejohn:

-- CBC and B.C. Government. And it was made on April 12th, 2021.

Johnson:

And so, what you could say, I gather, is that, just summing your evidence, is that, on August 12th, 13th, 14th and 15th, each of those dates you checked this particular website; is that correct?

Meiklejohn:

That's correct.

Johnson:

And on each of those dates, this particular website remained active?

Meiklejohn:

That's correct.

Johnson:

Thank you. Those are all the questions I have.

Judge:

Okay. Cross-examination?

CROSS-EXAMINATION BY THE ACCUSED:

Fox:

How frequently, on each of those days, on the 12th through the 15th of August, how frequently did you check that the website was still online and publicly accessible?

Meiklejohn:

One time each day.

Fox:

Okay. And so, in all of the time in between --

Meiklejohn:

Mm-hmm.

Fox:

-- the times that you checked, how did you verify that the website remained publicly accessible?

Meiklejohn:

I didn't.

Fox:

Okay. Because now, you had stated a few moments ago that the website was still online during all of that time?

Meiklejohn:

Mm-hmm.

Fox:

So, saying that it was still online suggests that it remained online continuously, does it not?

Meiklejohn:

Yes.

Fox:

But -- but you don't actually have any knowledge that it did remain online continuously during that period of time, do you? You just know at -- at the moment that you accessed the website, one time each day, that at those moments, it was online; is that correct?

Meiklejohn:

That's correct.

Fox:

All right. Do you have knowledge or familiarity with administering or maintaining a website?

Meiklejohn:

Not really, no.

Fox:

Do you have any idea how long it would take to take a website offline, or to make the content of the website not publicly accessible?

Meiklejohn:

No.

Fox:

Is it possible that at some point after my release from custody and then up to 48 hours after that, which is the time that the probation condition required me to take down the website, is it possible that the website could have been taken offline and then at some later point put back online?

Meiklejohn:

It's possible.

Fox:

Hmm. Are you familiar with the probation condition that I'm accused of breaching today?

Meiklejohn:

Yes.

Fox:

And what is your understanding that I was required to do?

Meiklejohn:

To take the website --

Judge:

I'm -- I'm not -- I'm -- I'm just wondering how that might be relevant because that's something for me to decide --

Fox:

Okay.

Judge:

-- in terms of what you're required to do.

Fox:

What I was -- what I was getting at with that is on the probation order there are two conditions. One that required me to remove specific content from the internet, or essentially, to take the website offline. And then there was another condition that prohibited me from publishing or disseminating any information about Ms. Capuano. So, what I was getting at with this was I'm only charged with breaching the condition that required me to take the website offline. It seems to me that Ms. Meiklejohn has just testified that she has no knowledge whether or not the website was actually taken offline in that period of time.

Judge:

Right. And --

Fox:

She only knows that -- that --

Judge:

-- so, I'll -- I'll just explain sort of the process to you. So, right now, it's your opportunity to challenge Ms. Meiklejohn's evidence by asking her questions.

Fox:

Right.

Judge:

And it -- at the end of the day, you may have some criticisms of her testimony, or you may feel that there were weaknesses in her testimony that didn't assist the Crown the way the Crown is going to suggest and then you'll be able to make an argument about that. But she's not able to answer your argument. She can only --

Fox:

Right.

Judge:

-- answer direct questions at this juncture.

Fox:

Okay. Thank you.

Fox:

You had mentioned that the most recent post that you had seen on the website was from April 12th, 2021; is that correct?

Meiklejohn:

Yes.

Fox:

And do you know if I was in custody at that time?

Meiklejohn:

I do not.

Fox:

Do you know who made that post?

Meiklejohn:

I do not.

Fox:

Do you know if I made that post?

Meiklejohn:

I do not.

Fox:

Hmm. Okay. Do you happen to know the time of day on August 12th and 13th -- wait, 12th -- 12th, 13th and 14th that you had checked the website? Did you record the --

Meiklejohn:

I did, yes, if I can just refer to my notes?

Fox:

Please, yes.

Judge:

Yes, go ahead.

Meiklejohn:

On August 12th, at 12:04 p.m. --

Fox:

Okay.

Meiklejohn:

-- I checked.

Judge:

Just a minute, sorry. August 12th at?

Meiklejohn:

Twelve-o-four p.m.

Judge:

Okay.

Meiklejohn:

And sorry, what was the other date?

Fox:

The 13th and 14th.

Meiklejohn:

On August 13th, at 7:41 a.m. and on August 14th, at 6:38 a.m.

Fox:

Okay. And so, any other time other than those, you have no knowledge of whether or not the website was taken offline or is that correct?

Meiklejohn:

In that -- in that three-day period?

Fox:

Right.

Meiklejohn:

That's correct.

Fox:

Okay. I have no further questions.

Judge:

Okay. Did I understand you to -- I just want to clarify something. Did I understand you to say that you also checked on the 15th of August?

Meiklejohn:

I did, yes.

Judge:

What time did you check on the 15th of August?

Meiklejohn:

At 6:10 p.m.

Judge:

Okay. Are there any questions arising from my question?

Fox:

Not a question, but I would just clarify, the reason I didn't ask about the 15th is because that was outside of the 48 hours and so, if I hadn't taken down the -- or if the website hadn't been taken down within the 48 hours, then that would have breached the condition beyond that. I -- I didn't think that it was relevant. So, I was only asking about, like, within that 48-hour period.

Judge:

Okay. I just wanted to make sure. Because she only mentioned the three days --

Fox:

Right, right.

Judge:

-- I wasn't sure if I had misheard her about the 15th --

Fox:

Right, right, okay.

Judge:

-- so, I just wanted to clarify whether that was her evidence and it sounds like it was. So, again, that'll be something for you to argue, after all the evidence is heard.

Fox:

Right.

Judge:

And -- and Mr. Johnson, did you have anything arising?

Johnson:

Yes, I do have one question, not from Your Honour's question, but from Mr. Fox's --

Judge:

Yeah.

Johnson:

-- question. He asked Ms. Meiklejohn about the most recent post which was on April the 12th of 2021 and she referred to a portion of that post: Dear People, CBC and B.C. Government.

RE-EXAMINATION BY CNSL C. JOHNSON:

Johnson:

Ms. Meiklejohn, referencing that particular post, did it appear to you that that was authored by Mr. Fox for some reason?

Meiklejohn:

Honestly, I can only remember seeing the title of the post.

Johnson:

And you don't have any knowledge of the content?

Meiklejohn:

No, I do not.

Johnson:

Thank you.

Meiklejohn:

Okay.

Judge:

Okay. Thank you, you're excused.

Meiklejohn:

Thank you.

Judge:

Thank you for your evidence.

(WITNESS EXCUSED)

Judge:

Mr. Sheriff, would you be good enough to call for a cleaner to clean the witness box for the next witness?

I'll just explain to you, Mr. Fox, that it's part of our process here in the courthouse that each time someone testifies, we clean the witness box for the next witness.

Fox:

Okay. Thank you.

Judge:

So, there's going to be a little bit of a delay between witnesses for that process.

Fox:

Okay.

Judge:

Madam Registrar, could I have the -- do you -- do you have the probation order?

Johnson:

Your Honour, I'll just step out for a moment, just to speak to my next --

Judge:

Sure. I think what we'll do, because sometimes it takes a little bit longer to get the cleaners up here, just so everyone can be at ease, why don't we stand down. I'll remain in -- in the hallway here.

Sheriff:

Your Honour --

Judge:

Just --

Sheriff:

-- he's enroute.

Judge:

-- let -- let me know when they arrive; okay? Thank you.

Clerk:

Order in court.

Fox:

Do I stay in here, or…

(PROCEEDINGS ADJOURNED)

(PROCEEDINGS RECONVENED)

Johnson:

Thank you, Your Honour. Next, I'm calling Detective Constable Janine Tanino and she's indicated that she wishes to affirm.

JANINE TANINO

a witness called for the Crown, affirmed.

Clerk:

Please state your name and badge number for the record and spell your last name?

Tanino:

It's Janine Tanino, 2754 for badge number and my last name is T-a-n-i-n-o.

Judge:

Okay. Feel free to stand or sit, whichever is your preference.

Tanino:

Thank you, Your Honour.

Judge:

Thank you.

Go ahead, Mr. Johnson.

EXAMINATION IN CHIEF BY CNSL C. JOHNSON:

Johnson:

And you are a detective constable with the Vancouver Police Department; is that correct?

Tanino:

Yes, I am.

Johnson:

And how long have you worked with the Vancouver Police Department?

Tanino:

Thirteen years as a constable.

Johnson:

And what department of the Vancouver Police Department are you now employed with?

Tanino:

The section I currently work for is domestic violence and criminal harassment.

Johnson:

And as part of your employment in that section, are you familiar with a person by the name of Patrick Fox?

Tanino:

Yes, I am.

Johnson:

And you've dealt with Mr. Fox personally, have you?

Tanino:

Yes, I have.

Johnson:

And are you able to indicate whether he's here in the courtroom today?

Tanino:

Yes, he is.

Johnson:

And could you indicate where he is or something about his clothing?

Tanino:

He's sitting in all red there.

Johnson:

Noting the indication, Your Honour.

Judge:

Okay.

Johnson:

Now, Detective Constable Tanino, you received an assignment related to Mr. Fox in August of 2021; is that correct?

Tanino:

Yes.

Johnson:

And could you please tell the court what that was?

Tanino:

I was assigned by the lead detective to interview Mr. Fox at the time.

Johnson:

And the lead detective was Detective Constable Dent; is that correct?

Tanino:

Yes, Kyle Dent.

Johnson:

And other than interviewing Mr. Fox, did you have any other involvement with this particular case?

Tanino:

After the interview, I was assigned to obtain a search warrant for the devices seized during the arrest.

Johnson:

And the devices seized were a laptop and a cell phone; is that correct?

Tanino:

And there was a -- I believe a storage device as well. I'd have to look at my notes, but there was three items in total.

Judge:

Did you make your notes at the time?

Tanino:

I -- I did following, yeah.

Judge:

Okay. Would you be assist --

Tanino:

Well, I refer to Detective Dent's seizure of the items and so, the report was written after the arrest and I referred to those and then --

Judge:

Did you refer to -- it was written by you or -- or Constable Dent?

Tanino:

It was written by Constable Dent. He's the one who seized the items and conducted the arrest and then I was the one who wrote them in the search warrant.

Judge:

Okay. And did you review his report at the time?

Tanino:

Yes, I did, yes.

Judge:

And you agreed with it?

Tanino:

Yes.

Judge:

Are you assisted in your memory by looking at it now?

Tanino:

The report? I could, yes.

Judge:

For the items that the prosecutor's asked you about?

Tanino:

Yes, they're included in the search warrant.

Judge:

Okay. Take a look then.

Do you have any objection to her looking at her notes?

Fox:

I don't.

Judge:

Thank you.

Tanino:

Yes, there was three items in total. One was a laptop; one was a smart phone and one was a USB.

Johnson:

And Your Honour, I indicated earlier, but I'll say it again, that the Crown is not relying on any evidence that was obtained as a result of that.

Judge:

Okay.

Johnson:

Now, Detective Constable Tanino, you, I gather, were advised that Mr. Fox had been arrested at some point in time?

Tanino:

Yes, I was.

Johnson:

And do you recall what date that was?

Tanino:

August 17th.

Johnson:

And as a result of Mr. Fox being arrested, then your assignment came into play, that is, you interviewed Mr. Fox?

Tanino:

Yes, it -- yes, I did.

Johnson:

And could you please tell the court how that occurred and where, et cetera?

Tanino:

I conducted the interview at the annex building, so 236 East Cordova.

Johnson:

And this was on August 17th?

Tanino:

Yes.

Johnson:

Of 2021?

Tanino:

Yes.

Johnson:

And I'll just say previous -- that previously, Mr. Fox indicated to me that there are not issues with respect to voluntariness, et cetera, and I just want to confirm that is correct.

Judge:

Are you taking any issue with the voluntariness of any statement you're alleged to have made to the constable?

Tanino:

No, I don't.

Judge:

In other words, that no one encouraged you to make the statement, or offered you an -- an incentive to make the statement? No one threatened you to make the statement?

Tanino:

That's correct.

Judge:

Okay. Thank you.

Johnson:

And Detective Constable Tanino, you indicated that this interview took place at the annex building of the Vancouver Police Department and are you able to tell us about what time this commenced?

Tanino:

I don't recall the exact time. I'd have to --

Johnson:

If she could refresh her memory by --

Judge:

Yes, you can look at your notes --

Johnson:

Mr. Fox, is that --

Judge:

-- or the transcript of the interview.

Johnson:

-- you're okay with --

Tanino:

The --

Johnson:

-- her looking at her notes?

Fox:

Yeah.

Tanino:

-- the interview began at 7:39 in the morning.

Judge:

At 7:30 --

Tanino:

Seven thirty-nine in the morning.

Judge:

Okay.

Johnson:

And are you able to tell us how long the interview lasted?

Tanino:

Again, I'd have to refer to the end time of the interview for -- via the transcript.

Judge:

Yes.

Tanino:

Eight forty-nine a.m.

Johnson:

And so, the interview was about one hour and 10 minutes; is that correct?

Tanino:

Yes, that's correct.

Johnson:

And I'm not going to ask you to read the interview to the court, but I gather you reviewed it today and on other days and there are certain portions of the interview that you wish to refer to; is that correct?

Tanino:

Yes.

Johnson:

And you've summarized those in a report to Crown counsel which I'll just say for the record has been supplied to Mr. Fox. And so, if I could ask you to advise the court of those portions of the interview?

Tanino:

Sorry, are you referring to the transcript, or are your referring to the TAR, the --

Johnson:

whichever is easier for you.

Tanino:

Well, the transcript --

Johnson:

If you have the transcript, then --

Tanino:

-- I do have the transcript, it -- it's almost 40 pages. It's 39 pages. So, but in -- in summary, Mr. Fox advised that he had transferred ownership and control of the website to a third party which was not identified during the interview.

Johnson:

Did Mr. Fox indicate to you that while he'd been out of jail, that is, on the days prior to the 17th, that he'd had access to the internet on his phone and laptop?

Tanino:

I believe he did, yes.

Johnson:

And did he indicate -- I think you've just indicated that he told you that he'd transferred control of the website to a party he would not name; is that correct?

Tanino:

Yes.

Johnson:

And did he say why he'd done that?

Tanino:

So, that he would not be compelled to take the website down.

Johnson:

And so, it was his belief that in doing so --

Judge:

Well, don't -- don't lead your witness --

Johnson:

Thank you.

Judge:

-- please, because this is --

Johnson:

That's --

Judge:

-- critical evidence.

Johnson:

Yes, fair enough, Your Honour, sorry. Thank you, that's all I'll ask about that then.

Did Mr. Fox indicate to you that he'd made any efforts whatsoever to remove the website?

Tanino:

He did say that he had e-mailed the editor.

Judge:

Sorry, he said that he?

Tanino:

He emailed; he sent an email.

Judge:

To the person in control of the website, the editor. I don't know the exact correct term, but I've used editor.

Johnson:

And in referring to a person as an editor, did he give you any details about that person?

Tanino:

I -- I don't recall if he -- he referred to them as the editor. That's the -- my term that I've used. The person in control of the website. He -- he said that he e-mailed them.

Johnson:

And did you ask him for some evidence of that?

Tanino:

I -- I did ask if he would provide the email.

Johnson:

And what was his response?

Tanino:

He said that he would, but at a later date, not at that exact time.

Johnson:

And to your knowledge, has Mr. Fox ever provided that information?

Tanino:

Not -- not that I know of, no.

Johnson:

Did he indicate that the email that he purported to have sent was sent from a particular type of account?

Tanino:

I -- I don't recall. I -- he might have, in the transcript, I don't recall off the top of my head, no.

Johnson:

Did Mr. Fox indicate anything to you about something that might happen once his probation had ended?

Tanino:

Yes, I did -- he did. I probably have to refer to my notes for the exact wording that he used.

Judge:

You don't have any objection to her referring to her notes?

Fox:

No, I don't.

Judge:

Okay. Go ahead.

Tanino:

I'm just looking at the transcript. So, we were -- at the time, we were talking about him providing control and ownership to the third party and so, I said [as read in]:

So, before you had your probation, you signed over rights to the website, like, access to it, to a third -- to a different party?

And he said:

Yeah.

And I said:

So that you wouldn't be -- you wouldn't have the authority…

He said:

Right.

And then I said:

…to take it down during your probation with the hope that when the probation ends, that's when you'll take it back over. Is -- is -- am I understanding that correctly?

As I was summarizing what he had told me. And he said:

Yes. And even if -- even if control of it wasn't given back to me after the probation is finished, it would be easy enough to just create another -- another copy of it, or another version because if you have all the source material, you just put up a new website.

That's directly from the transcript.

Johnson:

Was there anything in the -- in your interview about Mr. Fox's belief as to whether the website was harmful or not?

Tanino:

We did speak about it. He -- we spoke about any harm that it could possibly do to himself and the attention it received. It also -- the attention it might receive from anyone employing his exwife, but physical harm, no, he did -- he -- we spoke about it, but he didn't believe that there was any physical harm to her.

Johnson:

And when you say to her, are you referring to Ms. Capuano?

Tanino:

Yes.

Judge:

Well, again, don't lead your witness, please.

Johnson:

Thank you.

Johnson:

Did Mr. Fox say anything to you about -- well, first of all, let me ask you this, you're aware that -- are you aware that Mr. Fox -- are you aware that there had been, at some time, more than one website?

Tanino:

I believe we spoke about it in the interview, that -- at the beginning. I can't -- I can't quite recall, but I -- I do remember something about a previous website, but my interview was based off of the current website --

Johnson:

Right.

Tanino:

-- and I was not involved in previous investigations.

Johnson:

Did you have a discussion with Mr. Fox about reposting the website?

Tanino:

I -- that's what I just read about creating another version.

Johnson:

Okay. And I -- I'm -- did you write a summary of your interview and a report to Crown counsel?

Tanino:

I did. I don't have that with me. I just have the transcript.

Johnson:

Right. Did Mr. Fox, during the course of the interview, indicate to you any goals that he had in maintaining the website?

Tanino:

Any goals he had. I don't recall, no.

Johnson:

Right. Do you recall any discussion with Mr. Fox where the words -- did Mr. Fox ever advise you that he wanted to be charged with criminal harassment?

Tanino:

I believe we had a discussion in the interview about his previous charges and he gave some background to what had happened in previous cases with regards to that and I believe that was with criminal harassment charge, but we didn't speak at length about it, no.

Johnson:

Right. I'm going to ask you to review your interview with Mr. Fox, to indicate whether you had any discussion with him about bringing the administration of justice into disrepute and the context of that discussion.

Tanino:

May I refer to the transcript?

Judge:

Yes, go ahead.

Tanino:

Sorry. Sorry, here. Yes, on page 11, at the bottom, when we were talking about creating a new website with a different URL, Mr. Fox stated [as read in]:

Now, umm, doing…

He -- he stated:

Now, umm, doing that doesn't violate the probation conditions at all and there's nothing illegal about the website, umm. So, the prosecutor is just trying use the probation conditions as a way to get the website taken down. There's nothing illegal about it though. Umm, and I've been demanding at they prosecute me for criminal harassment based on the current website, umm, because they convicted me of criminal harassment from the -- from the -- based on the original website back in 2017. And if the new website is the exact same thing as the old website and still online, it must still be criminal harassment. But the thing is, it's not criminal harassment and they know it and if they were to prosecute me for that and have another trial, then my ex-wife committed so much perjury and there was so much corruption and collusion that went on at that first trial and there's evidence of all of that and most of that is on the website, umm, so if they were to prosecute me again and have another trial, then I would be able to confront my ex-wife with all of the proof she committed -- all of the perjury and then she would have no credibility, I'dbe acquitted and then it would raise issues of…

And then the next entry:

How could I be convicted of something the first time and do the exact same thing and be acquitted?

And then I said:

Umm…

And then he said:

Which would bring the justice system into disrepute.

Tanino reads from the interrogation transcript where I told her of my intention to bring the justice system into disrepute by exposing the corruption from my cases.

Johnson:

Did Mr. Fox, subsequent to that portion that you've just referred, indicated -- did he say anything about any willingness to go to jail, stay in jail, anything of that sort?

Tanino:

He did talk about the quality of his life and how what has happened has led him to not care if he has to remain in custody.

Johnson:

Did Mr. Fox, at any time, during the course of the interview, indicate to you that he'd done anything to remove the website other than send one email?

Tanino:

Not that I recall, no, because he said he didn't have ownership or -- or control of it.

Fox:

I'm -- I'm sorry, did you say that I said I did or didn't have?

Tanino:

You -- you said that you did not have ownership of or control -- or control of it.

Fox:

Sorry, I just didn't hear you.

Tanino:

No, that's okay.

Johnson:

Thank you then, those are all the questions I have of this witness.

Judge:

Okay. Cross-examination?

Fox:

Thank you.

CROSS-EXAMINATION BY THE ACCUSED:

Fox:

A little while ago, you were asked about if I had said that I had transferred ownership of the website to somebody?

Tanino:

Yes.

Fox:

And when we were discussing that, did I say when I had transferred ownership?

Tanino:

I believe you indicated when, but I'd have to refer to my notes. I -- I believe it was before your probation, but I can -- if I can --

Fox:

Sure, yeah --

Tanino:

-- refer to my notes?

Fox:

-- go ahead.

Tanino:

Think -- I think I asked about who -- who would have access to that website --

Fox:

Mm-hmm.

Tanino:

-- and the you sent -- you said I -- [as read in]:

Yeah, that, I'm not going to answer.

And then you said:

Umm, partially because I can't answer it right now. I don't know

Tanino admits I told her I can't tell her who has access to the website because I don't know (read from interrogation TR).

and that was done very deliberately before the probation began in 2018 and I've been over all of this before, but before the probation began, I transferred ownership and control to another party, so that way, I couldn't be compelled to take it down or do anything with it,

Tanino admits I told her the reason I transferred ownership of the website was so that I couldn't be compelled to take it down or do anything with it.

with the understanding that once I'm no longer on probation, then I would take back the website.

Fox:

Okay.

Tanino:

So, I believe that was -- you indicated there that it was before the probation.

Fox:

Right, right. So, would you understand that to mean that if that transfer did occur, it happened before the probation orders took effect? And so, was I -- as far as you would know -- sorry.

Tanino:

That's okay.

Fox:

Would I have been on probation at that time?

Tanino:

I -- I don't know exactly when your probation started, but it -- from what you said, you transferred ownership before your probation.

Fox:

Right. Okay. And you had also mentioned, on direct, something about me, that I would not name the person who I had transferred ownership to, but just a moment ago, when you were reading from there, I believe as you were reading it, it actually stated that I couldn't; is that correct? Because I don't know who -- sorry --

Tanino:

Yeah, you said, I don't -- I don't have the answer to that.

Fox:

Okay. And did I explain why I don't have the answer?

Tanino:

May I refer to my notes Your --

Judge:

Yes.

Tanino:

-- Your Honour? Thank you. I said [as read in]:

Okay. And do you -- do -- the -- the desicapuano, do you have access to that website?

And you said:

I don't.

And I said:

You don't? Who -- who would have access to that website?

You paused and said:

Umm. And then to update like you just said…

Because we were talking about how to update the website.

Fox:

Mm-hmm.

Tanino:

And you said:

Yeah, yeah.

Period.

That, I'm not going to answer.

And I said:

Okay.

And then you described what I just read, the probation.

Fox:

Right. Now, but where I had said that:

Umm, I'm not going to answer.

Sorry, would you -- could you tell me what page you're on on there, just so I can --

Tanino:

Yeah, of course, yeah.

Fox:

-- find it on here?

Tanino:

It's page 10, I was just going into the very last paragraph, where you were talking about your probation beginning. And --

Fox:

Sorry, I think I'm looking at the wrong one. Oh, that's the arrest.

Tanino:

I don't think on the next page you describe who would have access to it.

Fox:

Yeah, sorry, it's just -- all the transcripts are all bundled together here, I just have to find the right one.

Tanino:

Well, I'm just looking through where you --

Fox:

Oh, I found it.

Tanino:

Yeah.

Fox:

Okay. Yes. So, on page 10, line 29, that's -- that's where I continue after I say that I'm not going to answer.

Tanino:

Yes, and then you continue about the probation, but I just saw on page 14, you did -- on line 9, you said [as read in]:

I emailed, umm, whoever might be monitoring, the editor@desicapuano email address --

Fox:

Right.

Tanino:

-- which is right there on the website.

Fox:

Right. And we'll get to that in just one moment because I have a note of it here, but getting back to that page --

Tanino:

Oh, we're still on page 10?

Fox:

-- 10, line 29.

Tanino:

Line 29, yes.

Fox:

So, did I state that the reason that I wouldn't answer that question is because -- is because I don't know, because I don't have that information?

Tanino:

You said:

Umm, partially because I can't answer it right now. I don't know.

Fox:

Right. So, is it fair to say then that it's not so much that I wouldn't answer the question, but rather I couldn't answer the question because I didn't have the information? The question that Mr. Johnson had asked was whether I had provided the name of the person that I had transferred ownership to?

Tanino:

Yes, I believe so. Don't have access and I said:

Who would have access to that website?

And you said you weren't going to answer and then you -- yeah, you continued on to say [as read in]:

I can't answer right now, I don't know.

Fox:

Right. And then do you agree -- and then I went on to explain that the reason I don't know is because I deliberately transferred ownership before the probation began to a party that I wouldn't know about, so I couldn't be compelled to take it down. Is that a fair assessment of what I explained next?

Tanino:

I -- I think in here, I -- I was under the standing -- understanding more that you transferred ownership so that you could not be compelled. I didn't really realize at the time that you weren't aware of who that party was.

Fox:

Oh, okay. Okay. I see what you're saying, yes.

Tanino:

Just because it was lumped in with that particular explanation, so, I -- at the time, I didn't -- I didn't believe that you didn't know who the person was, just more so that you couldn't do that because of the way you gave up control and ownership.

Fox:

Okay. And then you had said -- on page 14, there was a discussion of the email that I had sent; is that correct?

Tanino:

Yeah, I was just trying to see anywhere about this -- this identification of a person, but then on 14, you did say:

I emailed, umm, whoever might be monitoring the editor@desicapuano.

Fox:

Right.

Tanino:

And -- and you went on to describe more, if you want me to read it verbatim, but --

Fox:

Sure, if you could, please.

Tanino:

Emailed, umm, whoever might be monitoring the editor@desicapuano.com email address, which is right there on the website, which you guys could also email those people and ask them to take down the website. They know about the situation, what's going on, because it's been -- been in the news at all -- and all. I haven't heard anything back from them though, but, umm, since the attention of transferring ownership of the website of another party was so that I couldn't be compelled to take it down under any circumstances, uh, it's not likely that they're going to do anything.

Fox:

Thank you. And let me ask, do you know if anyone from the VPD has tried to contact the current website administrators about taking the website down?

Tanino:

I'm not aware of all the steps taken in the investigation. My role was to interview you at --

Fox:

Right.

Tanino:

-- at that time.

Fox:

You had stated also, I believe, and correct me if I'm wrong, but you had stated on direct that I had said that I -- that I did have access to the internet on my laptop and my -- my phone prior to my arrest; correct?

Tanino:

I believe you described in here that your release and Belkin provided -- the Belkin House provided access to the internet.

Judge:

Sorry?

Tanino:

I'd -- I'd have to look for my notes, but we -- we discussed about his release and if the place that he was residing provided access to the internet. I don't recall exactly what I said to Mr. Johnson, but I can read through this if you -- if you'd like.

Fox:

Sorry, I'm just trying to find the part in the transcript where that was discussed.

Tanino:

I think it's page 7. I just saw the internet here. Yes, line 16 on page 7.

Fox:

Right, okay.

Tanino:

I -- I asked you [as read in]:

Yeah, okay.

I responded to something you had previously said. And I said:

Uh, so, since you've been released, have you had any access to the internet?

And your response was:

Of course.

Fox:

Right. And did I -- shortly after that though, did I point out that I was still under a previous probation order which prohibited me from accessing the internet?

Tanino:

I think you described your conditions and how -- what you were allowed access to. It's -- it flowed onto page 8.

Fox:

Ah, yes, at the top of page 8, line 2.

Tanino:

Yes. Would you --

Fox:

Well, I mean, we can just summarize. Do I explain in there that there's a previous probation order that I was still subject to which has a condition that prohibited me from accessing the internet?

Tanino:

Yeah, it says that it was -- to use internet for employment and sending and receiving personal emails.

Fox:

Right.

Tanino:

And then you said [as read in]:

I'm not going to comment on whether or not I actually accessed the internet since Thursday because if I say that I did access the internet, then I'd be admitting to violating that condition.

Fox:

Okay. And do you know if anybody verified whether or not my statement there was true, that I was -- that there was a probation condition that prohibited me from accessing the internet?

Tanino:

Again, my role was to interview you at the time, that would --

Fox:

Mm-hmm.

Johnson:

I -- I object to that question because there isn't a probation condition that prohibits him from using the internet. It limits his use of internet.

Judge:

She -- she's not able to comment on it in any event, it sounds like.

Fox:

And there was some discussion about whether -- whether I believe that the website is causing Desiree Capuano physical harm.

Tanino:

Sorry, just to clarify, it was harm. I don't believe he'd indicated physical harm in the question. It was harm and I -- it wasn't physical harm a the time of the question.

Fox:

Okay. Sorry, I had my note written down here as physical harm. Well, do you believe -- hang on, can I ask that? No, no, forget that.

At the beginning of the interview, the recording, I believe, it's probably in the transcript as well, you refer to the website as being a quote, hate website, closed quote. Do you -- do you see that there, or do you recall that?

Johnson:

Could Mr. Fox indicate what page and line that's on, please?

Fox:

Oh, I believe -- oh, yes, I do have it written here. Page 1, line 17, in my notes. It was before the interview actually began, or was it? Sorry --

Tanino:

Yes, yeah, it's the introduction.

Fox:

Right. Yes, there it is, hate website. Can you clarify, what do you mean by hate website? I mean, what is a hate website?

Tanino:

I believe that was pulled from a previous write-up from either Detective Dent, or a -- an additional report about the website and possibly, like, a previous breach, because at the time, I didn't have any knowledge --

Fox:

Mm-hmm.

Tanino:

-- so, I used background from other -- another report.

Fox:

Okay. So, am I correct then in assuming that what you're saying is that you don't necessarily, yourself, believe that it is a hate website?

Tanino:

Honestly, I have not seen the website myself, I have not --

Fox:

Okay.

Tanino:

-- accessed it and I have not read the content of it to make sure that I was entering into the interview with a clear mind and --

Fox:

Sure.

Tanino:

-- listening to what you had to say.

Fox:

In RTCC version 1, there is an occurrence report --

Tanino:

Sorry, is this in relation to the interview?

Fox:

Yes, yes. There's a section in that occurrence report called Interview of Fox.

Judge:

Do you have a copy of the occurrence report?

Tanino:

I -- I don't know which RTC he's referring to --

Fox:

All right.

Judge:

Okay. Would you happen --

Tanino:

-- where it -- where it comes up in the transcript.

Johnson:

Could I just step up and [indiscernible]?

Judge:

I'll just ask Mr. Johnson to verify which…

Fox:

Yes, that's it. It's just this looks different from what you have. It's just formatted differently, but it's the same thing, I believe.

Tanino:

What's the -- what's the -- sorry --

Johnson:

So, it's in the report to Crown counsel on page 10.

Tanino:

What's the front page of that looks like? Sorry, just so that I know that file number -- the VPD file number. That's --

Johnson:

This is a report that was prepared by Detective Dent.

Tanino:

I have the occurrence reports.

Johnson:

And I don't believe it was prepared by you.

Tanino:

It was not, no.

Johnson:

There is a portion which summarizes the --

Tanino:

Okay.

Johnson:

Mr. Fox, I'm not -- perhaps you could give --

Judge:

Maybe refer to what you're wondering about --

Fox:

Yes.

Judge:

-- so that the detective --

Fox:

So, within that section --

Judge:

-- knows what you're asking.

Fox:

-- entitled Interview of Fox, there's a bulleted list that appears to be -- or it actually says [as read in]:

The following are highlights of the interview.

And my question was going to be about that bulleted list.

Judge:

Okay. Let her -- let her find --

Fox:

Yeah.

Judge:

-- the document.

Tanino:

I have the actual occurrence report from that file, same file number, is it one -- 2021-13224?

Fox:

Yes.

Johnson:

It should be on page 5.

Tanino:

Page 5.

Johnson:

Five out of 6. Is that a six-page --

Tanino:

I -- I have four of -- I have five pages in total. It says Interview of Fox and it says [as read in]:

Was interviewed by Detective Constable…

Johnson:

Yes.

Tanino:

…Janine Tanino.

Johnson:

That is the same document, Your Honour.

Judge:

Okay.

Fox:

So, if you look down in the next paragraph, after the one that you were just reading from --

Tanino:

Okay.

Fox:

-- you should have a bulleted list there of highlights from the interview?

Tanino:

Yes.

Fox:

Those highlights, did you write those, or did somebody else?

Tanino:

I didn't -- I did not author this report.

Johnson:

The --

Fox:

Okay.

Johnson:

-- Mr. Fox, I believe Detective Constable Dent authored this portion.

Tanino:

Yeah.

Fox:

Interesting.

Fox:

I understand that Dent -- or Detective Dent wrote the report, but perhaps he might have just copied and pasted this section? I know sometimes that's done, but --

Tanino:

I don't know if he did that --

Fox:

Okay. So, you -- you --

Tanino:

-- because I don't have access -- I don't --

Fox:

-- you didn't write that; correct?

Tanino:

No, I did not write that.

Fox:

Okay. Then I can skip all of that. During the interview, there was some discussion about that email that I said that I had sent to editor@desicapuano.com and I believe I was asked by yourself, or possibly Detective Roberts about when I would be able to provide you a copy of that?

Tanino:

Yeah -- may I refer to the transcript, Your Honour?

Fox:

Yes, yes.

Judge:

Yes. Do you have a reference? A page number maybe and a line?

Tanino:

I think I might have tabbed it.

Judge:

Okay.

Tanino:

Well, yes, I think I have it here. I -- possibly on page 29. Yeah, I think Detective --

Fox:

Oh, yes, yes, mm-hmm.

Tanino:

-- Roberts says [as read in]:

I think you -- you circled back to the -- that talking about the email and when that was received and sent about taking it down.

Fox:

Right.

Tanino:

And I said:

You said that probably Thursday or Friday, you might be able to get us a copy of that.

Fox:

Oh, sorry, I believe -- and correct me if I'm wrong, but I believe I had said that I had sent the email on Thursday or Friday.

Tanino:

Yeah, there's a comma after it --

Fox:

Yeah.

Tanino:

-- so, maybe I just didn't pause enough there, but it says:

Probably Thursday or Friday…

As it -- it seemed like you were indicating that it was sent on those days.

Fox:

Correct.

Tanino:

And then you might be able to get us a copy of that, of you e-mailing the editor and that email address on that website. And your response was:

I will be able to be forward you a copy of it, umm, once I'm released from custody in three years or so. I don't have access to my email in jail,

Tanino admits I told her I would be able to forward her a copy of the email I sent to editor@desicapuano.com when I am released from jail, because I don't have access to my email in jail.

so…

Dot, dot, dot.

Judge:

Sorry, in three --

Tanino:

Three years.

Judge:

-- three years.

Tanino:

Three years, or so.

Fox:

Right, right. So, it seems -- it seems pretty clear to me and please tell me if you understand this the same way, that what I'm saying there is in jail, I don't have access to email and that's why I won't be able to provide a copy of that to the police until after I'm released from custody; is that --

Tanino:

I don't know what your mind was --

Fox:

Fair enough.

Tanino:

-- at the time of that.

Fox:

Is that how you understood it?

Tanino:

I don't know how I understood it at the time. I -- I don't recall. I -- I believed that -- you said you had emailed --

Fox:

Mm-hmm.

Tanino:

-- I wasn't -- I wasn't actually quite sure if it was about the email itself and providing it because you don't have access to it in jail, or if it was because of what we had spoken about during the interview, about your life and how it has been affected by this. And so, I wasn't quite sure if it was you wanting to remain in custody and got to court on these charges, or if it was because you didn't have access to it and wouldn't -- wouldn't be able to provide it. I was -- I was unsure of that still at the end of the interview.

Fox:

Okay. You agree that I did claim that I sent an email to editor@desicapuano.com, requesting that they take down the website until my probation is complete?

Tanino:

You indicated that you did send an email --

Fox:

Mm-hmm.

Tanino:

-- but I don't know what the contents of the email was. I don't know exactly the wording, I don't know --

Fox:

Okay.

Tanino:

-- said in the email, but you did indicate that you did send an email to the editor.

Fox:

Right. And did you, yourself, or Detective Roberts, ask me for a copy of that email?

Tanino:

I think I just read that portion, yes.

Fox:

Right, right. And -- well…

I don't believe that I have any further questions.

Judge:

Okay. Anything arising?

Johnson:

Yes, I have two brief questions.

RE-EXAMINATION BY CNSL C. JOHNSON:

Johnson:

Detective Constable Tanino, on that page that you were just looking at, did Mr. Fox say, with respect to this email that he may have -- might have sent, did he say what type of account he sent it [indiscernible/voice trails off]?

Tanino:

Sorry, I'm just getting that page again, here. After he said about the three years or so, I don't have access to my email in jail, so…

And I said [as read in]:

Okay, but if --

And then Detective Roberts said:

Okay. I mean, if we're, like, 'cause we're obviously going to do an investigation and try and find that email so we can prove whether or not you did comply --

Tanino acknowledges that the they (the VPD) intended to investigate the matter AFTER arresting and incarcerating me, rather than before.

And Fox said:

Mm-hmm.

And then Detective Roberts continued and said:

-- or not. So, if we're looking for that email, where are we going to look? Is it, like, a Gmail account? Is it your -- like, your personal account?

And Fox replied:

Gmail.

Johnson:

Thank you. And if Mr. Fox had offered to provide you with that email during the course of the interview, you would -- would you have allowed him to do that?

Tanino:

Yes.

Judge:

Well, I mean, that's a hypothetical question.

Johnson:

It is.

But it was -- it was open to Mr. Fox, during the course of his interview --

Tanino:

Well, we -- we posed the question, would you be willing to provide that email? I don't know, I -- like, the hypothetic would be how, exactly he would provide that, at that exact moment, but we would obviously try and -- try and collect that evidence if we could.

Johnson:

Thank you.

Those are all the questions I have, Your Honour.

Judge:

Anything arising, sir?

Fox:

No, no.

Judge:

No?

Okay. Thank you, you're excused.

Tanino:

Thank you, Your Honour.

(WITNESS EXCUSED)

Judge:

It might make sense, Mr. Johnson, because we have to call the cleaner again, to just take a little bit of an earlier morning break, then we can combine that activity with the morning break.

Johnson:

Yes.

Judge:

Okay. All right. So, Madam Registrar, would you just call me when people are ready?

Clerk:

Yes, Your Honour.

Judge:

So, just take the time you need and we'll resume after the morning break. Thank you.

Sheriff:

Order in court.

(PROCEEDINGS ADJOURNED FOR MORNING RECESS)

(PROCEEDINGS RECONVENED)

Johnson:

Thank you, Your Honour. The next and last witness the Crown is calling is Detective Constable Kyle Dent.

And he wishes to affirm, Madam Clerk.

Judge:

Okay.

KYLE DENT

a witness called for the Crown, affirmed.

Clerk:

Please state your name and badge number for the record and spell your last name.

Dent:

Yeah, it's Kyle Dent, D-e-n-t and my badge number is 2680.

Judge:

Feel free to stand or sit, whichever you prefer.

Dent:

Thank you, Your Honour, I'll sit.

Judge:

Thank you.

Mr. Johnson?

Johnson:

Thank you, Your Honour.

EXAMINATION IN CHIEF BY CNSL C. JOHNSON:

Johnson:

Detective Constable Dent, you are employed with the Vancouver Police Department; is that correct?

Dent:

That is correct.

Johnson:

And how long have you been so employed?

Dent:

Approximately 14 years.

Johnson:

And what department do you currently work in?

Dent:

I'm currently assigned to the domestic violence and criminal harassment section.

Johnson:

And were you in that section in August of 2021?

Dent:

I was.

Johnson:

And in August of 2021, were you assigned an investigation with respect to Patrick Fox?

Dent:

I was.

Johnson:

And do you recall the date of that?

Dent:

I was assigned on August 5th, 2021.

Johnson:

All right. And are you able to tell the court why there was this assignment?

Dent:

On August 3rd, I understand our domestic violence section, so, one of the sergeants, or staff sergeants, was informed was that Mr. Fox had sent an affidavit to the courthouse, either an appeal or -- I'm not exactly sure what was in the affidavit, but in the affidavit, he said he was not going to be taking down the website and they requested that we monitor Mr. Fox, to see if he would abide by his court-ordered conditions.

Johnson:

And you, I take it, or I'll ask you, actually, were you aware as to whether, on August the 5th, Mr. Fox was in jail or not?

Dent:

Yes, so, when I was assigned the file, I confirmed that Mr. Fox was at Fraser Regional. I contacted them directly to ascertain what his release date was and I learned that it was August 12th, 2021.

Johnson:

And what did you do next to further this investigation?

Dent:

To further the investigation, I tasked another detective in our office to conduct surveillance -- or sorry, to liaise with a surveillance team of Mr. Fox, as we had no additional information as to what his release plan was. And what I mean by that is we didn't know where he would be staying, who he would be associating to and if the investigation revealed that Mr. Fox was not in compliance with his conditions, we would attempt to effect an arrest. In order to do, his location was required. So, my next order of business was, I assigned a detective to liaise with surveillance, who sent a surveillance package to the team, which included Mr. Fox's photograph, so that on August 12th, they could be at Fraser Regional upon his release and conduct surveillance on him in order to learn where he would be staying.

Johnson:

And to your knowledge, did that occur?

Dent:

Yes, it did.

Johnson:

And did it come to your knowledge that Mr. Fox was, in fact, released?

Dent:

Yes, so, he was released in the morning and he was surveilled by the team for the duration of the day and in that time, he was observed at a Starbucks -- I believe it was a Starbucks coffee shop where somebody who has frequented Starbucks, I'm aware that they offer free Wi-Fi and he was observed in that location on a digital device. Surveillance was conducted throughout the day, where he ultimately ended attending the Belkin House, downtown Vancouver.

Johnson:

And your understanding is that Belkin House is a residence?

Dent:

Yes, Belkin House is a residence for people of no fixed address.

Johnson:

And did you come to learn that Mr. Fox actually moved to Belkin House and was staying there?

Dent:

We believed that he was staying there as that was the last place in the previous occasion that Mr. Fox was released from custody, that he resided at. And when he attended there and -- at the evening, that confirmed our belief that that is where, in fact, he was residing again.

Johnson:

Now, you mentioned, a few moments ago, that you were tasked with ascertaining whether he was in compliance with his probation?

Dent:

Yes.

Johnson:

And your understanding of that was what?

Dent:

So, I reviewed his CPIC, his conditions that were listed and to summarize, it stated that Mr. Fox had to take all reasonable steps to remove the website that he's been convicted of having control of -- over, within 48 hours of his release. I can read it verbatim if the court would like me to. I have it written in my statement here. I'd have to refer to it.

Johnson:

That's fine.

Dent:

Okay.

Johnson:

And so, with that understanding, you continued this investigation; is that correct?

Dent:

Yes. So, in order to do so, I tasked our crime analyst, Catherine Meiklejohn, to monitor the website over the weekend, to ascertain if it was still accessible to the general public and see if, at any point that she could observe, that it was taken down.

Johnson:

And at some point, did Catherine Meiklejohn report back to you?

Dent:

Yeah, the following Monday. So, Mr. Fox is released on the 12th and so, on the following days, Catherine reviewed his website and she reported back to me on the -- I want to say the 15th of August, that the website was, in fact, still operational.

Johnson:

All right. And were you aware -- I think you might have said this, but just in case you didn't, but were you aware as to what the court-imposed timeline was --

Dent:

It --

Johnson:

-- for Mr. Fox to --

Dent:

-- yes, it was 48 hours.

Johnson:

And as a result of getting that report from Catherine Meiklejohn, what did you do next?

Dent:

Formed the belief that after the weekend of her observing that the website was still operational and even in addition to the surveillance members observing Mr. Fox in a place commonly known to have free access to the internet on a digital device, we formed the belief that he was arrestable for breaching his conditions.

Johnson:

All right. And at some point in time, did you then take steps to effective an arrest?

Dent:

Yes, on August 17th, myself and another detective in the domestic violence unit attended to Belkin House in the morning, as we are aware that Belkin House has rules that tenants have to be out in certain point of the day. So, we attended the Belkin House in the morning and shortly after arriving there, we observed Mr. Fox in the hallway and we approached him and I arrested him for failure to comply with probation.

Johnson:

And after you arrested him, did you have a plan as to what was going to happen?

Dent:

Yes, the plan was, after Mr. Fox was arrested, he was going to be transported to the police annex, just across the street here, where he was going to be interviewed by Detective Janine Tanino.

Johnson:

And did that occur, to your knowledge?

Dent:

Yes, it did.

Johnson:

Did it ever come to your attention, during this period of time, and I'll say between August 12th and 17, that Mr. Fox had taken any steps whatsoever to remove the website?

Dent:

The only information I learned was during the interview with Constable -- sorry, Detective Tanino, that Mr. Fox stated that he emailed somebody. The contents of that email are unknown. I know that Detective Tanino asked Mr. Fox for the email, or access to, like, pull it up, or any information at all to produce this email and none was provided.

Johnson:

Thank you. Those are all the questions I have of this witness, Your Honour.

Judge:

Okay. Cross-examination?

Fox:

Thank you.

CROSS-EXAMINATION BY THE ACCUSED:

Fox:

You had made a reference to an affidavit that you were informed by the Crown, I think you said, that I stated in an affidavit that I would not take down the website?

Dent:

That is the information that I received, yes.

Fox:

Have you read or reviewed that affidavit yourself?

Dent:

I have not.

Fox:

So, do you actually have any knowledge of whether or not I actually said that in that affidavit?

Dent:

I do not. I'm relying on the information that I received from my sergeant, who received it from Deputy Crown, I believe it was Patti Tomasson.

Fox:

Okay. And you had stated that on August 15th, Officer Meiklejohn had informed you that the website was still operational; is that correct?

Dent:

If I may refer to my notes just to confirm that date -- that specific date?

Judge:

Yes.

Do you have any objection to him looking at --

Fox:

No, no, no objection.

Judge:

Go ahead.

Dent:

Okay. Yes, I have written down in my evidence here, as of the evening of August 15th, 2021, the website www.desicapuano.com was still active.

Fox:

And was -- was that the only source of information that you had regarding whether or not the website was operational following my release from custody?

Dent:

Yes.

Fox:

So, it's my understanding that Officer Meiklejohn had checked the website once each day for those four days; is that your understanding as well?

Dent:

Yes, it is.

Fox:

Okay. So, do you have any evidence about whether or not the website was actually taken offline, or taken down in that period of time and then it may have been put back up?

Dent:

I do not.

Fox:

Okay. You're familiar with the probation condition that I'm accused of breaching, I understand?

Dent:

Yes.

Fox:

Can you tell me, in your words, or verbatim, I don't care, what does that condition require me to do?

Dent:

I'll -- verbatim [as read in]:

Within 48 hours of your release, take all necessary steps to ensure any website, social media page or any other publication which you have authored, created, maintained, or contributed to, which contains information, statements, comments, videos, pictures which refer to…

Or depissit [sic] -- sorry, yeah.

…by name or description Desiree Capuano, her friends, relatives, employers, coworkers, including websites published under domain www.desireecapuano.com and www.desicapuano.com are no longer available via the internet or any other means.

Fox:

Okay. And so, if I or somebody else had taken down the website within the 48 hours following my release from custody, would I have been in compliance with that?

Judge:

Well, that's a legal question --

Dent:

I was going to say --

Fox:

Okay, sorry.

Dent:

-- that's not for me to determine.

Judge:

-- which I'm going to have answer at some point.

Fox:

If the website had been taken down in that period of time, would you have come and arrested me?

Dent:

If we had evidence that the website had been taken down, that you would have -- then you would have complied with your conditions. So, no, we would have had no reason to come and arrest you.

Fox:

Okay. Do you have any evidence about whether or not the website was actually taken down?

Dent:

The evidence that we have states that the website was still active and operational.

Fox:

Well, the web -- the evidence that you -- states that the website was active and operational at those four precise times that Officer Meiklejohn checked it.

Dent:

Yes.

Fox:

But the probation condition that you just read required me to take steps to take the website down.

Dent:

Mm-hmm.

Fox:

That condition did not prohibit me from putting the website right back up five minutes later, did it?

Judge:

Well, I think, in fairness, if you read the condition, it says [as read in]:

…are no longer available via the internet, or any other means.

So, there was an obligation, take it down, including the website and it says that [as read in]:

…that you must ensure that any website…

So, on and so, forth.

…are no longer available via the internet or any other means.

Fox:

Right.

Judge:

So, just not to mislead the officer.

Fox:

Are you aware of the other conditions on that probation order?

Dent:

I am aware that there are other conditions. I don't have them readily in front of me, as this was the condition that we arrested you on.

Fox:

Are you aware that -- the one that we're talking about right now is condition 6, according to what I have here. Are you aware that there is a condition 5 that essentially prohibits me from publishing or disseminating any information about Capuano and her associates?

Dent:

Yes, that's in the condition that I read as well.

Fox:

Okay. So, is it fair to say then that there's one condition that prohibits me from publishing and disseminating information and then there's a separate, distinct condition that required me to remove any previously published -- or any information that was published or disseminated at the time of my release?

Dent:

I'm aware that you have multiple conditions, yes.

Fox:

Have you ever lied on the witness stand?

Dent:

No.

Fox:

Have you ever committed perjury?

Dent:

No.

Fox:

Have you provided testimony that you knew to be false?

Dent:

No.

Fox:

Did you testify at a trial against me -- or regarding me on November 26th, 2020?

Dent:

I did.

Fox:

Do you remember what you had stated in that testimony? I mean --

Dent:

Not specifically, no --

Fox:

Okay.

Dent:

-- I'm sorry.

Fox:

Page 11, line 42. Do recall if, at that time, in that testimony, you were asked, by the Crown, on direct, whether or not you had asked me whether I had taken down the website?

Dent:

I -- I'll be honest, I don't recall.

Fox:

Okay.

Dent:

That was a significant amount of time ago.

Fox:

I have a bit of a dilemma here then, Your Honour, I have transcripts of prior testimony which the witness reasonably does not recall clearly and that's -- that's entirely understandable because it's going --

Judge:

Well, you can show him the transcript and --

Fox:

Right.

Judge:

-- and give him an opportunity to read it and then you can ask him questions about it. Like, for example, is it true, Officer, that, you know, on page 4, line whatever --

Fox:

Right.

Judge:

-- you answered the Crown as follows?

Fox:

Okay. And so, I just have the one master copy here.

Judge:

Okay.

Fox:

The Crown --

Judge:

Crown --

Fox:

-- had provided me copies of some of these transcripts as well, but --

Judge:

-- would you happen to --

Fox:

-- the page and line numbering doesn't line up with what I have.

Judge:

Okay.

Johnson:

I think what he's referring to is transcripts that were prepared for an appeal that he's doing --

Judge:

Ah, and you -- do you --

Johnson:

-- and --

Judge:

-- copies of those here?

Johnson:

-- I don't have copies of them.

Judge:

You do?

Johnson:

I don't.

Judge:

You don't? So, would you be all right with sharing your copy with the witness? That's probably the best.

Johnson:

I'm -- I'm okay with him, if he wants to ask questions about the transcript, as long as it's clear what the portions are, et cetera --

Judge:

Right. But the --

Johnson:

-- if I can look at it.

Fox:

Yes.

Judge:

-- officer needs to know --

Johnson:

Yes.

Judge:

-- he needs to refresh his memory from the transcript. So, you can share it with him.

Fox:

Right.

Johnson:

Could I look at that book just for a moment? I won't lose your --

Fox:

Sure.

Johnson:

-- place.

Fox:

I have a bit of a concern that if we just have the one copy, passing it back and forth so much is going to get very tedious or it might complicate things, I think.

Judge:

Well, I'll tell you what, that if you're concerned about that, I'll allow you to read the portion out to him --

Fox:

Mm-hmm.

Judge:

-- and then to ask questions. But if -- if it appears that there's a further context to his answer, then he must be allowed to read the portion before and after that specific answer, so he understands the context --

Fox:

Right. And --

Judge:

-- all right?

Fox:

-- I'm perfectly okay with that. What I was hoping -- I mean, ideally, I would have access to a photocopier at the jail and I could have photocopies of these, but unfortunately, I don't.

Judge:

Okay. Do you have very many of those that you'll be referring to?

Fox:

Well, honestly, it kind of depends how things go --

Judge:

Okay.

Fox:

-- with the questioning.

Judge:

Well, why don't we proceed this way, you can read out the portion that you want to ask him about --

Fox:

Okay.

Judge:

-- and then, so, you'll read out, you know, question by the Crown, so and so --

Fox:

Sure.

Judge:

-- answer by you, such and such. And then you can ask him a question, did -- were you asked that question by the Crown? Did you give that answer? He might recall it from you just saying it to him, or he might need to confirm it in the transcript.

Fox:

Okay.

Fox:

So, then, let's see, in the transcript here, the Crown had asked [as read in]:

I take it you did ask him about whether he had taken down the website; is that correct?

And your response -- you responded:

I did.

And I guess I should ask, do you wish to take a moment to look at any of this? Unfortunately, I'm going to be jumping around a bit.

Johnson:

Perhaps, Mr. Fox, you could just read the entire portion that you want to refer to at this point. Go ahead.

Fox:

Okay.

Fox:

So, at that point, on direct, you had stated that you did.

Dent:

Yeah.

Judge:

So, just to pause for a moment, he's put to you what he says is a transcript of your testimony on November the 6th of 2020; is that correct?

Fox:

November 26th, 2020, correct.

Judge:

November 26th, 2020.

Fox:

Oh, sorry, yes.

Judge:

Is it 6 or 26?

Fox:

Twenty-six.

Judge:

November 26th, 2020 and it relates to a question by the Crown and your answer. Are you able to respond whether or not you recall that question and answer?

Dent:

Again, that was a year and almost a couple months ago. I can recall that I was cross-examined and I did testify on that day, but the exact semantics of how I answered the questions, in what context, I'm sorry, like, I -- I'm not sure I would be able to definitely say, just due to the time of, like, that it's been, the year.

Judge:

Okay. Do you have a question about that question and answer --

Dent:

Yeah.

Judge:

-- that you want to ask him?

Fox:

Well, my only question, at this point, would be did he state that? And --

Judge:

Okay.

Fox:

-- I mean, it's here in the transcripts.

Judge:

Then you -- then you need to let him look at the transcript, so he can satisfy himself that that's an accurate transcription of what he said on that date. So, he'll need to look at the booklet, so he can look at the front of it and --

Fox:

Mm-hmm.

Judge:

-- see what it refers to. Maybe Mr. Johnson can assist him.

Johnson:

Which portion?

Fox:

Lines 42 -- right here is the question and then the answer, I did.

Johnson:

Okay. And just for the record, this is a transcript of a trial that was before Judge Rideout on November 26th of 2020.

Judge:

Okay.

Johnson:

And the reference that Mr. Fox is referring to is on page 11 of this particular transcript and it's --

Fox:

Line 42.

Johnson:

-- line 42 to 44. So --

Dent:

Sorry, which lines here?

Johnson:

Forty-two to 44.

Dent:

Okay.

Johnson:

There's a question and an answer.

Judge:

Are you able to say whether you were asked that question and gave that answer?

Dent:

This does look like an answer that I gave, yes.

Judge:

Okay. So, give it back to Mr. Johnson. I'm going to suggest everybody use their hand sanitizer as they're passing the document back and forth. You have some there --

Dent:

Thank you, Your Honour.

Judge:

-- Constable, and I think there's some available for both Mr. Johnson and Mr. Fox.

Fox:

And I'm sorry, I probably should have asked this before I got into the transcript, but does the Crown or the witness have any objection or concerns about the authenticity or -- of this document?

Johnson:

No, I believe Mr. Layton, who appears for the Crown, has conduct of this proceeding in the Court of Appeal and he's confirmed to me that Mr. Fox has transcripts.

Judge:

Okay. So, there's an acknowledgement by the Crown this is an authentic transcript?

Johnson:

Yes.

Judge:

All right.

Fox:

And then, on that same -- oh, sorry, sorry. When you gave that response to the Crown, were you referring to your notes?

Dent:

I don't remember if I was referring to my notes or not at that time.

Fox:

Would you like to check?

Judge:

Does it make a mention of referring to his notes?

Fox:

Yeah, in here, the --

Judge:

Okay.

Fox:

-- court advises him --

Judge:

All right.

Fox:

-- that he could check his notes to refresh his memory if he needs it.

Johnson:

And so, just -- I -- would Your Honour like me to read this --

Judge:

Sure.

Johnson:

-- question and answer? So, there's a question from the court, this is on page 11, line 29 [as read in]:

THE COURT:

You can refresh your memory from your notes, thank you, including that document.

A

Thank you very much. Mr. Fox referenced a number of details on that website, yes. His response was he did not admit to posting anything, but it has been updated by somebody.

Is that what you wanted to…

Dent:

This one? Court?

Johnson:

Where it says the court.

Dent:

Yeah. Okay. So, I -- I did have access to my notes.

Fox:

Mm-hmm.

Fox:

And then, do you recall, on cross-examination, I asked you and we discussed this a little bit further, about -- how can I say it? Well, how about if I just read you what it says here? So, I say [as read in]:

Well, I can -- I can even broaden the question and say, regardless of those dates, did I state that I did not -- actually, did I say that I did or did not take down the website at any time? Did that topic even come up? Was it even asked of me?

And then you had responded:

I recall that the website was still up at the time of the interview.

And then down a little bit -- ah, okay. And then you go on to say:

And the day before -- and so, to answer your question, I don't believe I asked you if you had taken down the website because I had knowledge that it was still active and up.

Do you recall stating that?

Dent:

Again, I don't recall anything specific that I said, however, I think we've said that the transcript is accurate, so…

Fox:

Okay. So, is it fair to say then that on direct you had quite unequivocally stated that you did ask me if I had taken down the website, but then on cross, you stated that you don't believe that you had asked me that?

Dent:

It sounds like -- again, when I was asked that question directly, yes, I responded that. When you asked me on cross, I stated that I may not have asked you that question directly. What I had been asking you is what would it take for you to take down the website? To which your responses were unequivocally, you would never take it down, or your ex-wife would have to get throat cancer and die.

Fox:

Okay. Well, that was some discussion that came later --

Dent:

Yes.

Fox:

-- but -- but on this -- I mean, correct me if I'm wrong, but the question seems pretty clear to me. I say [as read in]:

…did I say that I did or did not take down the website at any time? Did that topic even come up? Was it even asked of me?

And your response then was:

…and so, to answer your question, I don't believe I asked you if you had taken down the website…

Dent:

So, I may not have asked you directly, did you take down the website.

Fox:

Mm-hmm.

Dent:

I believe I asked you a numerous times who has operation of the website and everything, because again, my role in that file was just to interview you. I had no file knowledge. I was not involved in the actual investigation component of the file. I was simply asked to interview you. So, my knowledge of the semantics, or anything in relation to the actual investigation were nothing, to be honest. All I was asked to do was to interview you.

Fox:

Right.

Dent:

So, I didn't actually have any knowledge --

Fox:

Right.

Dent:

-- of what investigative steps had been taken or had not. So, in the interview, my -- my role and my purpose was to have a conversation about the website, who has access to the website, why it hasn't been taken down and from the get-go, I was under the impression that you were never going to say directly that you had taken down the website. So, I may not have asked you specifically the words: Did you take down the website? But my belief at the time was that you were in charge of the website, based on, again, information that I can recite from the transcript of you having operational knowledge of that website, such as being able to identify who had access to the website. When you told me that you had seen IP addresses from Vancouver, the RCMP and other people monitoring, which, as a normal citizen who operates the internet, I've never had that access before. So, again, to -- to answer your question, to that Crown counsel asked me did I ask you directly? I told him yes. You're absolutely right. I probably should not have answered that yes. I did believe that I had asked you that question, maybe not directly, using those exact words, however, I did satisfy to myself that I had asked that questions based on your answers throughout the entirety of the interview.

Fox:

Okay. So, if I understand this correctly, from everything that you've just said, are you saying then that when the Crown asked you if you had asked me about whether or not I had taken down the website and then you responded I did, are you now saying that that response was not correct?

Dent:

I'm saying that my response to Crown was I had asked you if you had taken down the website --

Fox:

Mm-hmm.

Dent:

-- not using those exact words, not verbatim saying that, but again, I can refer to the transcript of that interview --

Fox:

Mm-hmm.

Dent:

-- where I asked multiple times, who has operation of it? Tell me about it. How would I take it down?

Fox:

We -- we have that here and we are going to get into that.

Dent:

Okay.

Fox:

So, on page 20 -- hmm. Let's see here, at line 33, I ask [as read in]:

Did you ask me if I had taken the website down with 48 hours of my release from custody?

And you respond:

I don't recall if I had asked you that or not.

I say to you then:

Would you like to check your notes?

And you responded:

I refer to my notes here.

So, that's not -- you're not quite saying you did or you didn't, but you're saying that you did refer to your notes.

If you respond to -- if, when you responded to Crown counsel, your response was based on what was in your notes as well, are you saying that your notes changed between when the Crown counsel asked you the question and when I asked you the question? Because you were referring to the same notes, were you not?

Dent:

My notes did not change.

Fox:

I mean, you had your notes with you while you were on the witness stand and when the Crown asked you about if you had asked me if I had taken down the website, you said that you did and you were -- you had -- just before that, there was the interaction about you referring to your notes. So, I assume that your response there was based on what was in your notes. But then later, on direct, you became very evasive on the topic and again and when I said to you, would you like to refer to your notes, you said that you were referring to your notes.

Perhaps we'll move along.

Have you -- have you ever testified about the facts of a matter pretending or leading the court to believe you had knowledge of those facts when, in reality, you actually had absolutely no knowledge of those facts?

Dent:

I'm sorry, I don't understand your question.

Fox:

I'm asking you, have you ever, when giving testimony, gave responses, or even came right out and stated in your testimony that you had particular knowledge of a -- the subject matter, when in reality, you actually had no knowledge of the subject matter?

Dent:

Again, I don't know how I can --

Fox:

All right. Let me --

Dent:

-- answer that question without --

Fox:

-- give you a concrete example here.

Dent:

Yes, please.

Fox:

So, this comes just after where you had stated -- or actually, right around the same point where we were talking about earlier about when I was cross-examining you and in response to my question to you about whether or not the topic had even come up about you asking me if I had taken down the website, at one point, you respond [as read in]:

And the day before -- and so, to answer your question, I don't believe I asked you if you had taken down the website because I had knowledge that it was…

Still up --

…still active and up.

Dent:

Yes.

Fox:

Okay. So, you stated there that you had knowledge that it was still active and up.

Dent:

That the website was still operational, yes.

Fox:

Right. And then do you recall what followed was some discussion about your use of the word "still," much like how it did earlier today?

So, directly responding to what you had just said, I had said:

Okay. I want to ask you about that a bit because consistently, all of the officers involved in this had been saying that the website was still -- and I'm putting air quotes around still -- still up as of September 15th and 17th. The use of the word "still" suggests that it was up continuously from some point up until that point, that it had never gone down. But you've already admitted that you have no knowledge about whether or not the website was actually taken down at some point. So, is it fair to say that you actually -- that you can't actually claim that the website was still up? You can claim that it was u p on that day, but you have no…

But you have no knowledge or any evidence -- sorry.

…but do you have any knowledge or any evidence that it had been up continuously for that whole time?

And then you respond [as read in]:

I have no knowledge. My involvement in this file was to interview you.

Do you -- do you agree with that? I mean, the accuracy of what I just read there?

Dent:

Yes.

Fox:

Okay. So, on page 21, at line 18, you say:

Because I had knowledge that it was still active and up.

Then on that same page, at line 37, you say:

I have no knowledge.

Dent:

Mm-hmm.

Fox:

So, did you or did you not have knowledge of --

Johnson:

I -- I am going to object to this because in -- in my submission, it's misleading. It's comparing apples and oranges. So, on the one occasion, there's evidence that he said he was aware it was up and on the other occasion, I think Mr. Fox is relying on his questioning about still up and these are two different things.

Judge:

Well, I mean, I will say this, it's not that persuasive. I -- I understand the point you're making, that he said it was still up and when you questioned him a little more closely, he acknowledged he couldn't say if it was continuously up.

Fox:

But actually, what I'm focusing on here is his first claim that he had knowledge of a particular subject matter, the subject matter in this case being whether or not the website was up, but that's -- that's not what I'm focusing on. What I'm focusing on is his claim that he had knowledge of it and then later, after further cross-examination, he acknowledged, or he admitted that he didn't have knowledge of it.

Judge:

Well, he used a word -- he used the qualifier "still." He said that I don't believe I asked you if you took down the website because it was still up and operational. And then you asked him whether he knew if it was continuously up and operational and he said, no, he had no knowledge about that. So, it's, in my view, an occasion where you honed in, as people do when they're cross-examining, a little more closely on the testimony and the officer admitted that he couldn't say that it was continuously up, but he had used the words it was still up.

Fox:

Right. But if we put aside for a moment the issue about the use of the word "still" and whether or not the website was still up, and if we look only at his statement that he had knowledge of some particular thing and I'm not concerned with what that particular thing was at this point, but the point that I'm trying to get to is that this shows that on the one hand he claimed he had knowledge of the particular subject matter, but on further questioning, it was determined that he, in fact, didn't have knowledge of that particular matter.

Judge:

I'm -- I'm not sure -- you'll have to take me back to those portions. I don't -- I didn't glean that from what you read out to him. So, maybe read it out again, where you say --

Fox:

Sure.

Judge:

-- the contradiction is.

Fox:

Okay. Line 16 -- 16 to 19, it reads [as read in]:

And the day before -- and so, to answer your question, I don't believe I asked you if you had taken down the website because I had knowledge that it was still active and up.

And so, I'm concerned that at that point he's claiming he had knowledge of some particular thing.

Judge:

Right.

Fox:

But then later, he admits, he says, at line 37, I have no knowledge. So, he's admitting then --

Judge:

He says:

I have no knowledge if it was continuously up.

Is what I thought he said. But maybe I misheard that. Where he says I have no knowledge, tell me what he said.

Fox:

Well, he just says [as read in]:

I have no knowledge. My involvement in this file was to interview you.

So, he's --

Judge:

Okay. What was the question to which he answered?

Fox:

But do you have any knowledge or any evidence that it had been up continuously for that whole time?

Judge:

Right. I -- I -- I'm sorry, Mr. Fox, I just don't follow along. I don't see the significance.

Fox:

Okay.

Judge:

He was -- he was asked whether he asked you whether you'd took down that website and he said, I -- to answer your question, I don't believe I asked you if you took down the website because it was still active and up.

And then later, he acknowledged that he couldn't say whether it has been continuously active up, but at the time that it was checked, it was still active and up.

Fox:

Okay.

Fox:

Have you ever deliberately misrepresented facts about a defendant or an accused while giving sworn testimony on the witness stand?

Dent:

No.

Fox:

When you gave testimony at my previous trial, was your testimony related primarily or almost completely to the statements that I had made to you during the interview that you had conducted of me in that matter?

Dent:

I'm sorry, can you repeat the question?

Fox:

When you gave testimony at my previous trial --

Dent:

Yes.

Fox:

-- was your testimony, for the most part, if not completely, related to statements that I had made in the interview to you in that same matter? When you had --

Dent:

My testimony was in relation to the interview that I conducted.

Fox:

Right. So, is it -- is it fair to say -- do you agree that your testimony was, for the most part, about my statements to you?

Dent:

Yes.

Fox:

Okay. Do you remember if, when you were giving that testimony, you, at any point, mentioned that many or the overwhelming majority of those statements were made sarcastically or jokingly?

Dent:

During my testimony?

Fox:

Yes.

Dent:

I don't recall, I'm sorry.

Fox:

Okay. Well --

Dent:

I know that during the interview, there was a portion of sarcasm, yes.

Fox:

Right. And when you were giving testimony, did you -- do you characterize or represent my statements to you that you were testifying about as being serious or sincere?

Judge:

Well, you need to -- you need to read out to him the portions because he's looking back a year and a half --

Fox:

Right.

Judge:

-- and for him to pinpoint specific portions of his testimony would be extremely difficult.

Fox:

Right. I understand. Sorry, I'm just looking for --

Judge:

No, take your time.

Fox:

-- certain notes that I had made here that I'm having difficulty finding at this moment.

Judge:

Of course.

Johnson:

Happens to all of us, Mr. Fox.

Fox:

Ah, I think I found them.

Dent:

Excuse me, Your Honour, is there any chance that I might be able to grab one of those water bottles?

Judge:

Yes, Madam Registrar, would you assist --

Clerk:

You as well?

Judge:

-- the detective? Sure, if there's one available.

Clerk:

There is.

Judge:

Mr. Fox, would you like some water?

Dent:

Thank you so much.

Fox:

Oh, no, thank you, I still have --

Judge:

Okay. Mr. Johnson?

Johnson:

I have some, thank you.

Judge:

Okay. Good.

Thank you, Madam Registrar.

Dent:

Thank you.

Judge:

Yes, of course.

Fox:

When you were giving the testimony, it says in here, in the transcript, page 11, line 20, he said, is it -- [as read in]:

It is important to have good quality and audio and video for him to put on the website later.

Do you remember --

Dent:

I recall that, yes.

Fox:

-- saying that? Okay. And when you presented that to the court, when you testified about that, did you -- did you state that there was any element of sarcasm, or that you took it to be sarcastic, or you thought maybe I was being sarcastic?

Dent:

No.

Fox:

So, thinking back to the actual interview, when I made that statement, or the statement similar to that to you, was I -- was I being sarcastic?

Dent:

Mr. Fox, I don't -- sorry, Your Honour, I don't think I can accurately tell --

Fox:

Right.

Dent:

-- the court what you are saying or feeling or anything during the interview, as those are your emotions. I can say that at the time of your arrest, an arrest script was written and you were informed at all times you're going to be audio and video recorded and I mentioned that at the beginning of the interview.

Fox:

Right.

Dent:

So, I'm unable to accurately tell the court what you are feeling or how you were saying anything at the time. I can only reiterate what was said during the interview.

Fox:

Okay. Let me ask you this question then. Would it help -- no, before I get to that, do you believe that you would be able tell if a person is being sarcastic, for example, by certain gestures -- hand gestures, or if they're flailing their arms, or if they ended their statement by saying, and of course, I'm being sarcastic. Would those be indicators to you that the person is not really being serious about what he's saying?

Dent:

Again, Your -- Your Honour, like, the -- I can say for some people, may -- perhaps yes, but you're asking me globally and I -- I can't --

Fox:

I'm asking about you --

Dent:

-- say --

Fox:

-- specifically.

Dent:

About -- so, your -- your interview? I would -- can say, if somebody said, at the end of their interview, I'm being sarcastic --

Fox:

Mm-hmm.

Dent:

-- then yes, I can infer that they are being sarcastic.

Fox:

Okay. Although I don't think at that point it would necessarily be an inference --

Dent:

Yeah.

Fox:

-- if they're clearly stating it.

Dent:

Yeah.

Fox:

Let me ask you, would it help you to refresh your memory if you were to review the video of that interview? And I'm not suggesting --

Judge:

So --

Fox:

-- that we do that at this point, I'm just asking him.

Judge:

-- I'm just wondering what the nature of your question is. So, he -- he was -- at line -- at page 11, line 20 --

Fox:

Yes, he testified about a specific statement that I had made in the interview.

Judge:

Right. And he said you made a statement to the effect that it's important to have good audio and video to put it on the website. That was the nature of his --

Fox:

Right.

Judge:

-- repetition of your comment. And what you're suggesting is that he didn't tell the court that you were being sarcastic?

Fox:

Yes.

Judge:

You can ask him whether he thought you were being sarcastic when you said that and you can challenge him as to why he should have known you were being sarcastic, if you like.

Fox:

Okay.

Fox:

Do you believe that when I made that statement to you in the interview that I was being sarcastic?

Dent:

Again, I can only refer to, sorry, the transcript of where that was said. Whether or not you were being sarcastic is up, ultimately, I believe, to yourself.

Fox:

So, does that mean --

Dent:

I can't tell you if you're being sarcastic or not.

Judge:

It -- it's a little bit difficult for me because I don't really under the context. For some reason, you think he should have told the court some additional information. I don't know what was asked before that, or --

Fox:

Right. Well --

Judge:

-- what the lead up to it was.

Fox:

-- where I'm going with this whole line of questioning about misrepresenting facts about a defendant or an accused is that when I had had the interview that the witness had conducted --

Judge:

Okay. I'm just going to stop you for a minute.

Fox:

Sure.

Judge:

I'm just going to ask you to step out in the hallway for a moment and just, I know that you're aware of this, but I'll just remind you, you are under cross-examination, so, please don't discuss the case with anyone.

Dent:

Absolutely. I don't actually believe anybody's left.

Judge:

Okay.

Dent:

So --

Judge:

All right. So, just stay close by.

Dent:

Absolutely. I'll just be in the hallway.

Judge:

We'll call you back in in a minute.

Dent:

Thank you, Your Honour.

(WITNESS STOOD DOWN)

Judge:

I just didn't want our discussion to perhaps impact --

Fox:

Right.

Judge:

-- his testimony, not intentionally, but sometimes, unintentionally, people are affected by discussions about their testimony.

Fox:

Of course.

Judge:

So, I understand the path that you're going down and if you had some concrete examples of the officer being knowingly untruthful, because sometimes people say things and then later, they change their mind, because they have a further recall, they've recognized their mistake and -- and so on, but unless you have a concrete example of him being untruthful, I'm not sure that this evidence is helpful. Particularly because he had very little interaction with you in this investigation. He arrested you, he assigned someone to -- to interview you. He didn't interview him -- you himself. I haven't heard anything -- I mean, maybe you have a lot more to ask him about, but I -- I haven't heard any glaring examples of where he was knowingly untruthful that would affect his credibility or might suggest that he had a vendetta of some description, but it seems here that it was the Crown that initiated the request for an investigation that was prompted by some communication that you're alleged to have sent to the registry. So, it wasn't as if Constable Dent initiated this investigation. It was requested by the Crown and he had some involvement in assigning people to certain tasks and then, along with someone else, arresting you once the report came back from other people -- once reports came back from other people. So, just in order to guide you a little bit, as I say, unless you have some concrete examples of him being untruthful, the fact that he may have been mistaken in his testimony, or that he failed to tell the court that you may have been sarcastic when you said something, I'm not sure that that's all that helpful for me --

Fox:

Well --

Judge:

-- in assessing the witness.

Fox:

Right. Well, where I'm going or trying to go with this is the interview that he had conducted related to that matter. Almost the entire interview was sarcastic and joking. There was very little serious responses or answers that are going on there and it's very clear, when a person reviews the video. It's very, very clear that both --

Judge:

But --

Fox:

-- he and I are --

Judge:

-- you --

Fox:

-- being very sarcastic.

Judge:

-- you could have put that before the judge as a response to his testimony about what you said. I mean, he's reporting what you said.

Fox:

Yes, and --

Judge:

Sometimes people say I'm being sarcastic, but they don't really mean to be sarcastic.

Fox:

Right.

Judge:

They say it as an excuse for what they've said, so, I -- I don't know --

Fox:

The issue --

Judge:

-- what his assessment was, but --

Fox:

-- the issue about putting that before the judge, that's actually still on appeal --

Judge:

All right.

Fox:

-- that's what these are for because there was some disclosure issues with that. I hadn't received the video and such until three days before the trial, but that's a whole other issue.

And what I'm trying to show here is that even though he knew -- he even that admits himself, in the interview, so, he knew that it was not serious, but then when he testified about it at court, he presented it to the court as though he believed that the statements were serious.

Judge:

Okay. Well, I'll let you inquire a little bit more. If he said --

Fox:

Sure.

Judge:

-- in the interview that he acknowledged you were being sarcastic, then that's something you can put to him.

Fox:

Okay.

Judge:

And -- and if you suggest that he's being misleading by telling you, on the one hand, he knew you were being sarcastic and then not telling the court -- I don't know whether you asked him in cross-examination, isn't it true that I told you I was being sarcastic?

Fox:

No, we didn't get into that at all because --

Judge:

And if he said no, but in the interview he said, I realize you're being sarcastic, that may be somewhat persuasive, but otherwise, I'm not sure how helpful it is. But I'll let you go a little bit further if you have some concrete examples of him acknowledging that you were being sarcastic in your interview and then not acknowledging it in court.

Fox:

Okay.

Judge:

So, we'll call -- do you mind assisting, Mr. Johnson, just calling the officer back into the courtroom, please?

Johnson:

Not at all.

KYLE DENT

a witness called for the Crown, recalled.

Judge:

Thank you, Constable, for allowing us to have that legal discussion and I'll invite Mr. Fox to continue asking you some questions.

Dent:

Thank you, Your Honour.

Judge:

Go ahead, Mr. Fox, whenever you're ready.

Let me ask you this, Mr. Fox, do you have more than one transcript of the constable's testimony that you want to question him about? Like, is there -- do you have more than one book of transcripts? Or are you always referring to the same book?

Fox:

Well, his testimony is all contained within this one book. These transcripts are still related to the same case, but not specifically --

Judge:

Okay.

Fox:

-- the detective's testimony.

Judge:

So, you're only going to be questioning him about testimony that's in that one book?

Fox:

Yes.

Judge:

Okay. I'm wondering if it's helpful, I'm -- I'm going to ask Madam Registrar if she might be good enough -- it doesn't look like a very big booklet, I wonder if she might be good enough just to photocopy that at the lunch break, so that a -- the witness can have a copy of it and then we'll destroy it afterwards so we don't worry about copyright infringement, things of that nature because I know the reporters want to get their payment for it.

Unless you have a copy close by in an office here, do you?

Johnson:

I don't.

Judge:

No, okay, that's fine. So, why don't we take -- we'll take an early lunch break and I'm going to ask -- would you be able to do that, Madam Registrar?

Clerk:

Yes, Your Honour.

Judge:

Okay. And I'll ask Madam Registrar to do it now, so that she can give it back to you, so that you can use it over the lunch hour to further prepare your cross-examination, but that way, you don't have to be passing it back and forth.

Fox:

Right.

Judge:

When you cross-examination someone on a prior statement, whether it's a written statement or an oral statement, or a transcript of evidence, fairness requires that they be allowed to read that statement because we all recognize it's very difficult to remember precisely what we've said on a previous occasion. So, it makes sense for the constable to have that transcript before him. I'm going to ask that it not be given to him until we return at two o'clock. So, Madam Registrar is going to make a copy and then she'll bring it back. Would you be able to stay with Mr. Fox here for about 10 minutes?

It'd take about 10 minutes, do you think, to make the copy, or?

Clerk:

Yes.

Judge:

Okay. And then she'll bring it back and then he can have it over the lunch hour to prepare his cross.

Sheriff:

Absolutely, Your Honour.

Judge:

And then -- but I'll excuse you now, Constable --

Dent:

Okay.

Judge:

-- with the same caution, of course, please don't discuss your evidence --

Dent:

Of course.

Judge:

-- because you're under cross-examination.

Dent:

Exactly.

Judge:

And then I'll ask you to come back at two o'clock.

If you need a little bit longer for preparation, once you get the transcript back, just let Madam Registrar know and you can have a little bit longer to prepare. We've got all --

Fox:

Okay.

Judge:

-- day tomorrow as well, so -- or, Friday, rather. Okay? So, I think that might make it easier.

Are there any other statements that you're going to be putting to the constable, like, the interview itself, for example? Because we may as well get everything done at the same time.

Do you have a copy of the interview, Mr. Johnson?

Johnson:

Of the interview of this case?

Judge:

This previous interview that happened in relation --

Johnson:

No, I do not.

Judge:

-- to the court case in November of 2020? No? Okay.

Fox:

Well, I believe it -- it would be beneficial to have a transcript -- or for the witness to have a transcript of the interview --

Judge:

Okay.

Fox:

-- from 2020, although, really, because the problem with the transcripts is they only contain the words that were stated. And in this particular instance, what's important is the mannerisms and the conduct between the parties.

Judge:

Okay. Do you have that transcript?

Fox:

Well, I have a -- the transcript in the disclosure material.

Judge:

I mean of the interview.

Fox:

Oh, yes, the -- well, I have the recording of the interview, like, the --

Judge:

Yeah.

Fox:

-- audio/video recording --

Judge:

And do you have the transcript as well?

Fox:

Yes.

Judge:

Okay. And how long is it?

Fox:

Oh, the --

Judge:

You don't have a copy of it, Mr. Johnson?

Dent:

Your Honour --

Fox:

I believe it was about --

Judge:

Oh --

Fox:

-- I do.

Fox:

-- 54 minutes.

Judge:

-- you have a copy of it? Oh, the officer's already got a copy, so --

Fox:

Oh, okay.

Judge:

-- don't worry about that.

Fox:

Right. To be clear though, we're talking about the --

Dent:

2020.

Fox:

Right. Okay.

Judge:

2020 interview. You've got a copy.

Dent:

When I conducted the interview with Mr. Fox.

Judge:

Yeah, okay. Good.

So, those are the only documents that you're going to put to him; is that fair?

Fox:

There's going to be some questions related to -- or there may be anyway, some questions related to the interview that Officer -- or Detective Tanino conducted, the one in this matter.

Judge:

Okay. Well, I -- I don't know that he can answer that.

Fox:

Sorry --

Judge:

I don't think it's -- I know that was quite a big document. So, I'll -- I'll leave it to you to ask those questions and then we might have to share that transcript --

Fox:

Sure.

Judge:

-- but he wasn't there, as far as I know.

Were you there for the interview?

Dent:

I was not.

Judge:

No, okay.

CROSS-EXAMINATION BY THE ACCUSED, CONTINUING:

Fox:

Oh, okay, so you weren't observing? It was my understanding that you were --

Dent:

No, I wasn't.

Fox:

-- out observing. Okay.

Dent:

No.

Fox:

Then --

Dent:

It was --

Fox:

-- in that case, those questions would --

Dent:

-- Detective --

Judge:

Okay.

Dent:

-- Tanino and her partner.

Fox:

Okay.

Dent:

I was compiling the report to Crown counsel.

Judge:

Okay. So, you can be excused now. You can take your documents --

Dent:

All right.

Judge:

-- with you. I'll ask you to return at two o'clock, please.

Dent:

Two o'clock? Okay.

(WITNESS STOOD DOWN)

Judge:

Please, yeah. And then I'll stand down now. I'll come back at two o'clock and Madam Registrar is going to go now, if you don't mind, just to make a copy of that small transcript, the red one.

Johnson:

Just before Your Honour leaves, I'm wondering --

Judge:

Yes?

Johnson:

-- if I could ask Madam Registrar to make two copies --

Judge:

Okay --

Johnson:

-- so that I could have a copy.

Judge:

-- could you make a copy for Mr. Johnson --

Clerk:

Okay.

Judge:

-- so he can follow along?

Okay. And now she's going to bring it back to you. Mr. Sheriff is going to wait here in the courtroom with you. She'll bring it back to you, so that you'll have it back in your hands before the lunch hour.

Fox:

Thank you.

Judge:

Okay? Thank you.

Sheriff:

Order in court.

(PROCEEDINGS ADJOURNED FOR NOON RECESS)

(PROCEEDINGS RECONVENED)

Johnson:

Good afternoon, Your Honour. Chris Johnson appearing for the Provincial Crown. I can recall the Fox matter.

KYLE DENT

a witness called for the Crown, recalled.

Judge:

Yes, thank you. Were you able to receive a copy of the transcript, Mr. Johnson?

Johnson:

Yes, I did, thank you very much.

Judge:

Okay. Good.

Fox:

Over the lunch break though, I decided that there are some other questions that I want to get out of the way first and so, I'm going to put that aside for the time being --

Judge:

Of course.

Fox:

-- and get back to it.

Judge:

Yeah.

CROSS-EXAMINATION BY THE ACCUSED, CONTINUING:

Fox:

Detective Dent, who -- who owns the desicapuano.com website?

Dent:

I don't know.

Fox:

Okay. Who has administrative access to it, or control over it?

Dent:

I don't know.

Fox:

Okay. Do I own it or have access -- administrative access or control over it?

Dent:

I don't know.

Fox:

Okay. And I understand you're the lead investigator on this case; is that correct?

Dent:

Yes.

Fox:

Okay. So --

Dent:

On this file, yes.

Fox:

Right, right. And so, have you been in contact with the hosting provider to verify whether or not I have anything at all to do with the website or with the hosting account?

Dent:

I have not.

Fox:

Can you tell me why not?

Dent:

Pardon me?

Fox:

Can you tell me why not?

Dent:

Because the purpose of this investigation was to investigate the breach that the website is still active --

Fox:

Mm-hmm.

Dent:

-- and not to prove who has ownership or anything along those lines. So, the breach in question was that you, who's already been established to have access and operational capacity of the website and published on the website be -- take down the website within 48 hours of your release in custody. By monitoring that website for over 48 hours and it still being operational, you were in breach of the court order, thus you were arrested.

Fox:

So, you just stated though that it's already been established that I had access to the website, or I can't remember the exact wording you used just a moment ago.

Dent:

I believe you were convicted originally, which is what the conditions stem from. So, the purpose of the investigation is not to establish the original investigation, it's the fact that you are in breach of your conditions.

Fox:

Okay. But wouldn't it be relevant, if not critical, to the charge -- yes, to the charge, to establish that I even have the ability to do what is required by the probation condition?

Dent:

Yes.

Fox:

Okay. If -- If I don't own, or control, or have administrative access to the website, then how would I have the ability to do what's required by the probation condition?

Dent:

So, based on the interview that you and I conducted in the last trial --

Fox:

Sure.

Dent:

-- okay? You made a number of statements, not necessarily directly stating that it was your website any longer, but you made multiple statements and I can refer to them if you'd like, that you have transferred access from the website to a person who you refused to identify.

Fox:

Mm-hmm.

Dent:

That alone indicates that at one time you had access to the website and were continuing. You also made numerous statements about regaining access and control, as well as monitoring it and in fact, you told me that you were aware that the police were specifically monitoring the website as you could see IP addresses of people who had logged on to that website. So, as -- again, I'm not a very technical, like, savvy person, Your Honour, however, I have the ability to go on the web -- internet and look at websites and I've never seen IP addresses of people who access that same website as me. So, to me, you telling -- giving me this information in the last interview indicates that you still do have access to the website in order to monitor who is coming and going and what traffic is on that website.

Fox:

Okay. Two points I'd like to make -- or questions I'd like to present --

Dent:

Yeah.

Fox:

-- based on what you just said. The first is, it seems to me that a lot of your belief then is based merely on assumption, or inferences that you made from statements that I had said at a previous interview; is that correct? I mean, you said that I never actually stated it directly myself --

Dent:

Yes.

Fox:

-- but rather I had made other statements that might have alluded to something.

Dent:

Yes.

Fox:

Okay. The other question I would have is that interview occurred in November -- no, September 2020; correct?

Dent:

Yes.

Fox:

And I was then arrested on this matter in August of 2021.

Dent:

Yes.

Fox:

There's, what, nine months or so in between there.

Dent:

Yes.

Fox:

Even if -- even if I had had -- and I'm not saying that I did, but --

Dent:

Of course.

Fox:

-- even if I had had access to the website at the time that you interviewed me in 2020, does that automatically mean that I must still have access to it nine months later?

Dent:

Again, based on this investigation --

Fox:

Uh-huh.

Dent:

-- of the website still being up after 48 hours, we arrested you on that condition. Subsequent to that, with your interview with Detective Tanino, she provided me with a very brief summary in which case you, again, reiterated that if you had -- sorry, that you had sent an email to somebody --

Fox:

Mm-hmm.

Dent:

-- as well as -- and if I may refer to my notes here, so that I don't misquote myself here --

Judge:

Do you have any objection to him looking at his notes?

Fox:

Oh, I don't object, no, go ahead.

Judge:

Go ahead.

Dent:

You had, again, transferred control of the website to a party you would not name, so that they would never be compelled to take the website down. And what is it, you also planned on resuming control of the website once your probation was over.

Fox:

Okay. And the information you were just referring to, is that the section entitled Interview of Fox from RTCC version 1 from the occurrence report?

Dent:

I don't have the same document. I have my narrative that I wrote in relation to police file 2021-132224.

Fox:

Right. And --

Dent:

Yes.

Fox:

-- I believe you were just reading from the section that's headed Interview --

Dent:

Yes.

Fox:

-- with Fox and --

Dent:

That is a brief summary of Detective Tanino's interview.

Fox:

So, you say that was a summary of Detective Tanino's interview, but these bullet points in here, did she write those, or did you write those?

Dent:

She provided me with a summary and I put that into my report --

Fox:

Okay. So --

Dent:

-- but I believe I also wrote in there, if I may, please refer to task number 6, which is her interview, for full details of the interview.

Fox:

Yes, yes. And I have some concern about task number 6 because that was never disclosed to me. But that's another issue. But these bullet points in this list --

Dent:

Yes.

Fox:

-- I -- I'm a bit concerned about the origin of those. Like --

Dent:

Okay.

Fox:

-- did Detective Tanino write these points, or provide this information, or --

Dent:

I wrote the narrative.

Fox:

Okay. But specifically you wrote this --

Dent:

I read her task action report --

Fox:

Right.

Dent:

-- Your Honour, and I took those bullet points from her task action report, which is why I say please refer to her task action number 6 --

Fox:

Uh-huh.

Dent:

-- and I put them in there.

Fox:

Okay. So, if I had questions about what's in this list --

Dent:

Yes.

Fox:

-- I would have to address those to her; is that what --

Dent:

Yes.

Fox:

-- you're saying? That's very disturbing because when she was on the witness stand earlier, I had asked her about these and she didn't write those and --

Dent:

No.

Fox:

-- well, she didn't type in them in; right? And so, that's why I -- I had asked her, perhaps it was copied and pasted from something that she had done.

Dent:

No.

Fox:

Okay.

Dent:

So, Mr. Fox, if -- if I can clarify, please, Your Honour?

Fox:

Yes, please.

Dent:

She wrote a task action report.

Fox:

Yes.

Dent:

I reviewed the task action report and I put the bullet points from that task action report, a very brief synopsis of those, into my narrative. She did not write this. I wrote the --

Fox:

Right.

Dent:

-- narrative, I'm responsible for this document. Does that clarify your -- your question there?

Fox:

I understand that you wrote the narrative, it's your name --

Dent:

Okay.

Fox:

-- at the -- at the top of it.

Dent:

Yes.

Fox:

But I do have questions about the wording of some of these points and so, I was going to cross-examine her on it, but then she said that she never --

Dent:

Yeah.

Fox:

-- wrote those and that apparently, I believe she said that you had written them.

Dent:

Which I just said I did write these.

Fox:

Okay. But then you had just said also that if I had questions about them, I would have to address them to her and I --

Dent:

If you wanted more details.

Judge:

You can ask him --

Fox:

Right.

Judge:

-- where he got his bullet points. To show you in the report where he got his information, if you like.

Fox:

Okay.

Fox:

So, we're going to be getting to that shortly. All right. So, I understand that you have not been in contact with the hosting provider and you have made no efforts to verify that I have anything at all to do with the website, but you believe that I have administrative access to the website, based on some previous indirect information?

Dent:

Yes, based on the information from our interview and again, based on some of the information from the interview that you conducted with --

Fox:

Right.

Dent:

-- Detective Tanino.

Fox:

Right. But not a direct statement that I had made to you that I had --

Dent:

No.

Fox:

Right. Do you have any knowledge of anybody from VPD in any of the previous cases related to this website -- well, related to the breaches, relating to the website, contacting GoDaddy to try to verify or determine that I have any involvement in this website?

Dent:

I have no knowledge.

Fox:

Okay.

Dent:

At the time of the interview, I had only been in the domestic violence section approximately three weeks.

Fox:

All right. But even at this point, you're saying you have no knowledge of that?

Dent:

No.

Fox:

Okay. And so, I understand that you're saying that you have no knowledge of Detective Quantana's [sic] previous contact with GoDaddy in this matter?

Dent:

I have no knowledge of it.

Fox:

Okay. When you testified on November 26th, 2020, you had said that you reviewed parts of the previous file; do you want me to go to any specific parts, or is that sufficient? So, like, you recall saying that?

Dent:

I would need to see --

Judge:

Just refer him in the transcript to where you're speaking about.

Fox:

Okay. In my notes, it says page 6, lines 34 to 36.

Dent:

I don't have a copy, Your Honour.

Judge:

Oh, did we not -- could you provide a copy?

Clerk:

[Indiscernible].

Judge:

Thank you.

Dent:

Okay. Thank you.

Judge:

Did you get a copy, Mr. Johnson?

Johnson:

Thank you.

Judge:

So, that's page 6, line 34, I think. Was it, Mr. Fox?

Fox:

Yes, 34 to 36.

Johnson:

And just for the record, Your Honour, this is me asking this witness questions on the previous trial.

Judge:

Oh, it's a question by the prosecutor. Okay.

Dent:

Okay. Yeah, I read -- I see that.

Fox:

Okay. And so, the file that you're referring to there --

Dent:

Yes.

Fox:

-- which file would that be? Because at -- at the time of -- when you were -- when you did the interview and you testified on this matter --

Dent:

Yes.

Fox:

-- there was only one previous breach case related to this website.

Dent:

So, what I'm saying here --

Fox:

Mm-hmm.

Dent:

-- the previous file is, in fact, this file and honestly, all I -- I reviewed was the narrative that Detective Jordan [phonetic] had made. So, the previous file, like, this file --

Fox:

Yeah.

Dent:

-- I didn't review the original file where Detective Fontana was the lead, as it was quite large and I only had short amount of time to prepare for the interview.

Fox:

Interesting. So, do I understand this then to mean that when you say I reviewed parts of the previous file --

Dent:

Yes.

Fox:

-- by previous, you meant the current file?

Dent:

Yes, like, I apologize for my -- my misword there but previous file meant that file --

Fox:

All right.

Dent:

-- like…

Fox:

Do you have any knowledge of anyone in the VPD taking any steps or putting any effort into getting a U.S. court order to get the website taken down?

Dent:

I have no knowledge of anybody doing that.

Fox:

Okay. Can you tell me if there's any reason why that's not -- hasn't been done? Because, you see, in 2020 -- August 2020, Detective Fontana testified that that was something that was still being looked into or considered. I mean, here we are now three years later -- well, 2019 is when that case first started and it doesn't seem that anybody's actually done anything.

Dent:

I can't speculate on another --

Fox:

Okay.

Dent:

-- officer's decision.

Fox:

Well, not just on the other officer, but, like, within the VPD, I mean.

Dent:

Yeah.

Fox:

To the best of your knowledge, or as far as you know, is there anything on the website, or about the website which violates any law of Canada?

Judge:

Well, that's not really, again, his role to determine.

Fox:

Okay.

Judge:

The whole issue today is whether or not it violates your probation.

Fox:

Right.

Fox:

Earlier, there was some talk about -- wait, sorry, I'm trying to remember if that was a discussion with you or with Detective Tanino. Okay. Rather than making the assumption, I'll put it in the form of a question. When I was interviewed on August 17th, 2021, by Detectives Tanino and Detective Robert -- Roberts, did I tell them, at that time, that I had sent an email to the admin of the website on August 13th or 14th, requesting that they take the website offline until my probation ended?

Dent:

I believe I did write that in my narrative there, yes.

Fox:

Okay.

Dent:

Again, I don't have the specifics, as I was just providing a --

Fox:

Right.

Dent:

-- brief summary.

Fox:

During the course of the interview, did Tanino or Roberts ask me to provide the passwords for my phone and laptop so they could verify that email?

Dent:

I wasn't present for the interview.

Fox:

Oh.

Dent:

You would have to -- that's a question that you would need to --

Fox:

But you're familiar with the interview, aren't you? I mean, you -- you've reviewed the transcripts, I -- I assume?

Judge:

Well, one of the -- one of the difficulties is that because he didn't conduct him the interview, what you're asking him to do, really, is just to read it as -- as Mr. Johnson could read it, I could read it, and to answer a question, which isn't the best evidence. The best evidence would have come from Constable Torino [sic] who actually conducted the interview.

Fox:

Right.

Judge:

But if you have -- if you have something in relation to that question, then you can take him to the part of the transcript.

Fox:

That question was leading to something that wasn't actually the final point of that line.

Judge:

Okay.

Dent:

In relation to that question and reviewing my narrative here, in relation to that email question, I wrote that you stated you emailed a friend who is running the website to take it down.

Dent now admits that he made false claims in the narrative he wrote in the RTCC. He falsely claimed I said I emailed my "friend who is running the website".

Also, earlier in my cross, when I asked about this, Dent was extremely evasive and was suggesting it was Tanino who wrote that p66l1-p67l29. But now he's admitting he wrote it. So many lies from this evil motherfucker!

And notice, when I asked him about it, directly, he was evasive and tried to put the blame on Tanino; but when I ask him about a slightly collateral matter he's so focused on avoiding giving a clear and direct answer that he doesn't realize he's now answering/admitting to the question he tried so hard not to answer earlier. He's really not too bright, this guy.

This is relevant because it shows a history of Dent making false statements in his reports.

You would not provide officers with that password, or of your computer to confirm the detail and that you would provide that email at a later date.

Fox:

Yes, I see that that is in --

Dent:

So, that's what I can say on that question. I don't know the exact wording or specifics --

Fox:

right.

Dent:

-- but that's what I wrote in my summary.

Fox:

Are you aware that at the time of my arrest in this matter I was still bound by a probation order from the index offence, the criminal harassment offence -- well, I guess that will be the first question.

Dent:

Sorry, can you repeat that?

Fox:

Are you aware -- or more specifically, I guess, were you aware, at the time of my arrest --

Dent:

Yeah.

Fox:

-- that I was still bound by a probation order from the index offence, a probation order from Justice Holmes that took effect back in -- or that was entered in 2017?

Dent:

I was aware that you still had other court conditions, yes.

Fox:

Okay. And were you aware that one of those conditions prohibited me from accessing the internet other for the purposes of sending emails and looking for employment?

Dent:

I don't know the exact wording, but I know that you had a condition of that kind.

Fox:

Do you know how many task action reports have been generated, or -- is that the right word, generated? For those case or file?

Dent:

Not off the top of my head, no.

Fox:

Okay. Are those -- are those generally all disclosed to the -- to the defendant in the matter, or is there a reason that they wouldn't be?

Dent:

I believe they are generally disclosed unless there's specific source material that needs to be vetted. But oftentimes, a task may be assigned --

Fox:

Mm-hmm.

Dent:

-- and then it's deemed not relevant and nothing is disclosed on that matter because we don't end up using it.

Fox:

Earlier, you had mentioned TAR number 6, or task action report number 6?

Dent:

Yes.

Fox:

That was never provided to me. Was that intentional, or was that just an oversight?

Dent:

That task may have been renamed. So, looking at this task number 6 for full details of the interview, what I believe happened was the task 6 was just to prepare an interview script for yourself and then it was later amalgamated into Detective Tanino's greater -- in her -- greater -- sorry, task action report. I believe that's what happened. I would have to go back to my computer to confirm that, as I don't have -- that wasn't my task. I assigned it, but that's not my task that I have in front of me here. So, I -- I can't speak with it without refreshing my memory.

Fox:

Getting back to this -- or the issue of the email that I had stated that I had sent to editor@desicapuano.com --

Dent:

Yes.

Fox:

-- requesting that they take down the website, did you, in the course of your investigation, make any attempts or efforts to obtain a copy of that email?

Dent:

Yes.

Fox:

Okay. Did you apply for or obtain a search warrant for my mobile phone?

Dent:

Yes, for a laptop, a mobile phone and a USB.

Fox:

And what was the -- what were the results of the search of the phone?

Dent:

We've had not gained access to that phone yet. It's still on the machine that's trying to break the encryption.

Fox:

Trying to break the encryption? Sorry.

Judge:

Trying to which?

Dent:

Break the encryption on the device.

Judge:

Oh, break the encryption.

Dent:

Yeah.

Fox:

Okay.

Fox:

And did you apply for an obtain a search -- yeah, you said you did, for the laptop as well --

Dent:

Yes.

Fox:

-- correct? And what was the result of that?

Dent:

I found no emails sent.

Johnson:

I'll just rise to say, Your Honour, that the Crown is not relying on any of this evidence and as a result, I say that it's not relevant to the issues at trial.

Judge:

I don't know that it's helpful to Mr. Fox anyway because you're asking questions that may not assist your case by asking whether or not they found an email sent.

That's because, as always, my objectives with this trial are completely unrelated to the prosecution's. Their objective is to get a conviction; my objective is to expose proof of incompetence and corruption on the parts of the police and the prosecutors. I cannot possibly care less about being convicted of a probation violation for refusing to take down the website.

If anything, being convicted helps my purposes because it shows I am being persecuted by the very justice system participants I am exposing. Dent already admitted there is no evidence I have any involvement with the website, and if I have no involvement with the website then how can I, reasonably, be convicted of failing to take down the website? Only in a completely corrupt system could such a thing happen.

Moreover, being repeatedly convicted and imprisoned for refusing to take down the website, while continuing to refuse to take it down, only proves my claims that the BC justice system is powerless to make me take down the website. They are, as I've stated in the past, impotent! It also improves my standing with everybody who believes in free speech.

It's amazing that after so many years of these prosecutions, the BC government is still completely oblivious to the fact that I'm deliberately antagonizing them so I can use these prosecutions to amass proof of their incompetence and corruption.

Fox:

Mm-hmm. I'm -- I'm sorry, what was it that you had said? Like, I believe I had asked if anything was found, or what was found, or?

Dent:

I did not find anything -- any email sent from that device.

Fox:

Right. Now, it's -- it's my understanding that -- sorry, I'm trying to think of how I can phrase this. We're in an area now where I have a very lot of very technical expertise because I'm a software engineer and I'm trying to think of how I can phrase the question in laymen's terms. No, I don't -- hmm. Okay. So, no emails were found on the laptop; correct? That's what you said?

Dent:

None that were within the scope of our search warrant.

Fox:

Was -- did you find anything on the laptop newer than 2019?

Dent:

Yes.

Fox:

Oh. What?

Dent:

I found two -- there were two internet searches of basically your name and your -- it basically said Patrick Fox website and that was it.

Fox:

And this would have been in one of the web browsers, I'm assuming?

Dent:

Yeah, and that's all I observed on that. But again, it wasn't relevant to the investigation.

Fox:

Right, right.

Let me just ask Mr. Johnson a question if I could. There was a request previously about making my laptop available during the cross-examination?

Johnson:

Yes, this officer has your laptop.

Fox:

So, my laptop is here?

Dent:

Yes.

Fox:

Okay. Now, from the information provided by Nancy Yingling [phonetic] in the digital forensics unit, it -- it is clear that only the Windows partition on the laptop was searched. And if I'm getting too technical with any of this --

Dent:

You're getting too technical. I don't understand what you're saying --

Fox:

Right.

Dent:

-- I'm going to be very honest with that.

Fox:

See, this is why I was kind of hoping that --

Dent:

Yeah, I -- I apologize.

Fox:

-- Yingling would be here, but --

Dent:

My technical knowledge is very limited.

Fox:

Right.

Judge:

So, I -- at this point, I don't see any relevance of anything on the computer, unless it assists your case. So, for example, if they were to find an email that you sent during the relevant time period to the administrator of the site, then that might assist your defence and --

Fox:

Right.

Judge:

-- I would obviously allow you to pursue that. But to ask him about other emails, or what's on the laptop, it's really not of any relevance to the case.

Fox:

Right. In a moment, I think it's become very clear where I'm --

Judge:

Okay.

Fox:

-- where I'm going with this.

I -- I assume that you're familiar with Windows, the operating system?

Dent:

I -- from turning my --

Fox:

You've heard of it --

Dent:

-- computer on, yes.

Fox:

-- you know it's operating system? Okay. Have you heard of a system called Linux?

Dent:

Called what?

Fox:

Linux.

Dent:

No.

Fox:

Are you familiar with a product called openSUSE?

Dent:

Called?

Fox:

Open -- openSUSE.

Dent:

No. I'm sorry, can I just pause here? Are we able to turn this fan down? I'm having a hard time hearing Mr. Fox.

Judge:

Yeah, it's quite loud up here as well. Is it a heater fan, or?

Dent:

It's appreciated, as it's quite warm, but I'm -- I'm just --

Judge:

Yeah.

Dent:

-- having a hard time hearing Mr. Fox.

Fox:

Also because my throat's a little dry, so my voice is --

Judge:

Yeah, so you -- and did you get some water? Did we give you some water?

Fox:

Yeah, I have -- I have water here --

Judge:

Okay. Good, yeah.

Fox:

-- but --

Dent:

Okay.

Judge:

So, you said Linux, or?

Fox:

Linux or openSUSE. It's o-p --

Judge:

OpenSUSE.

Fox:

-- e-n-s-u-s-e --

Judge:

Okay.

Fox:

-- which is a version of Linux.

Dent:

I -- I'm not familiar with either of those.

Fox:

Okay. Do you recall, when you were escorting me from the annex building across the street to the jail, we had talked very briefly about the USB stick that was in my laptop bag that was seized?

Dent:

Yes.

Fox:

Do you recall me mentioning to you that it contains just the installation media for openSUSE, which I installed on the laptop?

Dent:

I -- I don't recall that --

Fox:

No?

Dent:

-- conversation, I'm sorry.

Fox:

Okay. But that is in the transcript, so --

Dent:

Yeah, it -- it more than likely is, but I -- I don't recall that off the top of my head --

Fox:

Right.

Dent:

-- without referring to that.

Fox:

Okay. Are you aware that I don't use Windows?

Dent:

No.

Fox:

Are you aware that I use Linux and other Unix based operating systems?

Dent:

No.

Fox:

Are you aware that that laptop that you were searching for the email on was configured as a dual boot and I primarily used the Linux partition on it, not Windows?

Dent:

I don't know --

Fox:

Right.

Dent:

-- anything about anything like that.

Fox:

So, my point with this, I guess, is I'm trying to establish how much effort was actually put into trying to find or obtain this email, like, to -- to prove that I did contact them. But beyond the questions I've just asked, I don't know --

Dent:

Yeah, we --

Fox:

-- how I could establish that much better. Oh, there is actually something. I had some questions…Okay, with respect to search warrants or I'm not sure if this would be a production order, or what, but so, during the interview, I informed Detectives Tanino and Roberts that I had sent an email, et cetera, et cetera. Did I mention which email service I used for that? And I believe Mr. Johnson had asked you about that earlier?

Dent:

I believe it was Gmail.

Fox:

Correct. And are you aware that Gmail is what's called an IMAP based mail service? IMAP means internet message access protocol?

Dent:

I don't know --

Fox:

Okay.

Dent:

-- anything about that.

Fox:

Are you aware that with IMAP protocol, the messages are stored on the server, not on the user's device?

Judge:

I didn't --

Dent:

No.

Judge:

-- I didn't hear your answer.

Dent:

No, no, sorry, I -- I don't know anything about that, no.

Fox:

Did you, at any point, apply for or make any attempt to obtain a search warrant, or a production order, or a subpoena, for Google or regarding my Gmail account?

Dent:

No.

Fox:

Can you tell me why not?

Dent:

The decision was made that we had applied for a search warrant for the laptop --

Fox:

Mm-hmm.

Dent:

-- and as a -- we didn't get any results from it, that was the extent of what we were going to do in order to search for this email.

Fox:

I see. So -- so, because the email could not be found on the partition on the laptop which I don't use and it's an IMAP based service, so, it wouldn't be on the laptop any -- well, all right.

Johnson:

That's more for argument.

Fox:

Yeah.

Judge:

You can call evidence about that, but he's not knowledgeable enough to respond to your inquiries in that regard.

Fox:

Right. These -- some of these are questions that I would have hoped to put to Officer Yingling who was the one that isn't available today.

Judge:

Yes?

Johnson:

It's normally the defence that makes admissions, but if Mr. Fox is interested, I have learned that Gmail is generally not saved on a person's laptop. You have to go, as he says, into the internet where your various messages are store, as opposed to on your laptop. So, the Crown is willing to admit that Gmail would not be stored on a laptop in normal circumstances, if that's any assistance.

Fox:

Thank you, it is, yes.

Fox:

Regarding the surveillance that was done on me, upon my release from custody on August 12th, 2021, I believe you had mentioned earlier that that surveillance began at Fraser Regional Correctional Centre; right?

Dent:

Yes.

Fox:

And how many officers were involved in that?

Dent:

I don't have that knowledge. Again, that task was assigned to another detective in the unit, Detective Roberts.

Fox:

Yes, Roberts was the one. And can you tell me again, what was the purpose for the surveillance?

Dent:

To find out where you -- Your Honour, sorry, the purpose was to find out where you were staying.

Fox:

Were you aware at the time that I had -- that I was under a probation order that required me to report in person -- not -- at least every four days on Cordova Street, across the street from here?

Dent:

I was not aware of that, no.

Fox:

Oh. If you're -- if the objective or the goal was to find out where I would be staying, did it ever occur to you to simply ask me?

Dent:

No, it did not.

Fox:

Oh. Are you familiar with something call a forensic acquisition summary?

Dent:

No.

Fox:

Okay. Do you review the material for the investigation -- or from the investigation before it's disclosed to me?

Dent:

I would need to know specifically what you're talking about, but typically no.

Fox:

Oh, no?

Dent:

No.

Johnson:

If I could clarify, Mr. Fox and please indicate if you don't want me to help, but the forensic acquisition summary you're referring to the report from Constable Yingling; is that correct?

Fox:

Yeah.

Johnson:

So, that might assist this witness to know what that document is.

Dent:

Oh, okay.

Fox:

Perhaps if I -- if I was to hand that to you, would that have any familiarity to you, or? The reason is because there's one --

Johnson:

Your Honour, I'm handing a document, which is entitled Vancouver Police Department digital forensic unit, forensic acquisition summary.

Fox:

Thank you.

Judge:

Are you asking whether he's familiar with it?

Fox:

Yes, because I do have a couple of questions about a couple of the entries in there and so, I just want to make sure he's familiar with it.

Dent:

Okay. So, yes, I'm sorry, I didn't know the exact title of this document because I've never written one --

Fox:

Mm-hmm.

Dent:

-- as it's something that our digital forensics unit does and I'm not a member of that unit. I'm just going to make a quick comment here. I'm reviewing this document and everything looks apparent except for this last page.

Fox:

Right.

Dent:

That's in relation to another one of my files that has absolutely no bearing on this whatsoever and I'm shocked that this was included in this file.

Fox:

Right. That was going to be one of the questions I was going to ask --

Dent:

Okay.

Fox:

-- about, is why somebody else's disclosure material is included in my disclosure?

Dent:

So, that's probably a question that you would need to ask the detective -- or sorry, Detective Yingling, who submitted this. What I suspect and again, I can't speak for her directly, what I suspect is this is another one of my files that she was working on at the same time and it simply was added by error. But I can guarantee you, there is nothing relevant between you and --

Fox:

Oh, no --

Dent:

-- this other file.

Fox:

-- I understand that has absolutely nothing to do with my case and no relevance --

Dent:

Yeah.

Fox:

-- I am curious though, is this something that happens often?

Dent:

I really hope not, but I can only speak for myself and this is the first time that I've ever had this experience and I apologize to everybody here.

Fox:

Okay. So, within that forensic acquisition summary, there is an entry on pages 3 -- wait, I think there's one before that, isn't there? I guess not, on pages 3 and 4, it's toward the bottom of page 3, with a timestamp of 2021-08-25, at 15:13:09.

Dent:

Okay.

Fox:

And it states, at least in part [as read in]:

Email sent to lead investigator, Detective Dent, advising ready for REAP.

Is that correct?

Judge:

And I didn't hear it, ready for?

Fox:

Oh, REAP, R-E-A-P.

Judge:

Okay.

Fox:

I'm not sure what that means.

Dent:

I'm sorry, which page are you on?

Fox:

In my notes, it says -- it says pages 3 and 4, so I believe it's at the bottom of page 3.

Dent:

It's actually at the top of page 4.

Fox:

Oh, okay.

Dent:

Yes, I see email sent me advising ready for REAP, yes.

Fox:

Okay. And the information itself is correct, is it not? Like, she did send you an email at that --

Dent:

Yes.

Fox:

-- letting you know it's ready?

Dent:

Yes.

Fox:

And this is relating to the information that was extracted from my laptop?

Dent:

Yes.

Fox:

Then on page 4, there's another entry with a timestamp, 2021-10-12, at 13:23:48, which states [as read in]:

On October 12th, 2021, I received an email from Detective Dent that he wished to review the data on REAP. I provided a copy to Detective Constable Woolridge [phonetic] to place upon -- to place up onto REAP.

Dent:

Yes.

Fox:

And is that information correct as well?

Dent:

Yes.

Fox:

Okay. So, she sent you that on 10-12. Oh, okay, you sent that to her, okay, on -- sorry, I was confused by my own notes. And I need a moment now to find the search warrant, unless you happen to know, off the top of your head what the dates were -- were on the search warrant?

Dent:

I -- Your Honour, if I may?

Fox:

I believe it was valid for, like, one week. It's sometime in August.

Dent:

If I may?

Fox:

Yeah.

Dent:

A warrant is deemed executed once our forensic section --

Fox:

Mm-hmm.

Dent:

-- takes custody and plugs in the laptop. That was done within the one week of the timeframe of the warrant.

Fox:

Mm-hmm.

Dent:

It took them some time to access it and then we have a long period of time for me to review it. The review doesn't have to happen within that one week, only search warrant needs to be executed within that timeframe, which it was.

Fox:

I see. So, if I understand this correctly, you're saying that as long as the data is extracted and copied onto VPD's server, or some other place within the timeframe --

Dent:

I -- I don't know the exact terminology or technicalities of that --

Fox:

Mm-hmm.

Dent:

-- all I know is that once I've handed the laptop with the signed warrant -- or in this case, I didn't do that, another detective did, but once that process has done -- been completed, the search warrant is deemed executed.

Fox:

Okay. Have you found any evidence to contradict my claims that I relinquished ownership and control of the website to a third party prior to -- prior to my being on probation?

Dent:

No.

Fox:

Have you found any evidence at all to even -- or any evidence at all even suggesting that I have ever been dishonest in any of the legal proceedings against me?

Dent:

No.

Fox:

Now, I would like to turn your attention to the occurrence report in RTCC version 1 that you've written the narrative for.

Dent:

Oh, I'm sorry.

Judge:

Is that in relation to this case?

Fox:

I'm sorry?

Judge:

Is that in relation to this case?

Fox:

Oh, yes, yes.

Judge:

Okay.

Dent:

Okay.

Fox:

I just have a few questions about some of the information that's stated in there. And I know you've stated this already, but for the sake of being redundant, I just want to confirm again that you did write this narrative; is that correct?

Dent:

I did.

Fox:

Okay. Oh, sorry, this version of the document is slightly different from what's in my notes and so, the page numbers might not match. But I have the section numbers and sections headings anyway.

Dent:

Okay.

Fox:

Background of Events. There's a section called Background of Events and in the second paragraph --

Dent:

Okay.

Fox:

-- one, two, probably in the third line, toward the end, it says [as read in]:

The website was written in the first person…

Sorry, this might not line up the same as --

Dent:

Okay.

Fox:

-- what you have.

Dent:

Sorry, what -- what am I looking for?

Fox:

Oh, the sentence that starts with [as read in]:

The website was written in the first person…

Dent:

Yes.

Fox:

Oh, okay, and then the relevant part is:

…and was made with the purpose of posting defamatory and in most cases, false information about Capuano.

Dent:

Yes.

Fox:

So, you wrote that, do you -- do you believe that?

Dent:

I obtained this background of events --

Fox:

Mm-hmm.

Dent:

-- from this original file. I reviewed the synopsis of it --

Fox:

Mm-hmm.

Dent:

-- and I deemed it relevant just to provide context for this file and I -- basically, I took information from that synopsis and I put it into this file.

Fox:

Okay. Regardless of the accuracy or correctness of that information?

Dent:

Again, it's -- correct me if I'm wrong, but it's already been tried in court.

Fox:

Well, no. The question of whether or not the information on the website is true or defamatory has never been tried in court.

Dent:

Okay.

Fox:

So, I assume from that response then, that you, yourself, have never actually found any false or incorrect or defamatory information on the website?

Dent:

I have not investigated the website.

Fox:

But you have seen the website; is that correct?

Dent:

I've seen the front page of the website and the open letter to David Eby.

Fox:

Okay.

Dent:

And that's all on the website I have reviewed.

Fox:

And the parts that you have looked at on the website, I'm assuming you have not found any false or incorrect information?

Dent:

In the open letter to David Eby, it's --

Fox:

The parts that you looked at.

Dent:

-- it's a completely subjective open letter to David Eby, so --

Fox:

We're only -- I'm only interested in information about Capuano.

Dent:

Yes.

Judge:

You know, I'm just going to -- I'm just going to interrupt you there for a moment.

Fox:

Sure.

Judge:

We're trailing away from the issue before the court. The issue before the court is did you breach your probation --

Fox:

Mm-hmm.

Judge:

-- by failing to ensure that the website was no longer available.

Fox:

Okay.

Judge:

So, whether it was true or not true, or whether it -- other things you wrote to David Eby were true or not true, that's not an issue for this court to decide.

Fox:

Okay.

Johnson:

Your Honour, I'm wondering if we could just very briefly deal with the document that Mr. Fox put to Detective Dent, where it appears that both Detective Dent and Mr. Fox agree that the last page was disclosed to Mr. Fox inadvertently?

Judge:

Yes.

Johnson:

And I've looked it and it is not relevant to Mr. Fox's case. Clearly, there's been --

Judge:

It should be removed from the disclosure.

Johnson:

-- and so, I would like to be able to --

Judge:

So, Mr. Fox, you agree that that last page is not relevant to your case?

Fox:

Correct.

Judge:

Okay. And so, we're going to remove it from the disclosure --

Fox:

Okay.

Judge:

-- because it shouldn't be --

Dent:

Just the one page, yeah.

Judge:

So, if you could just remove that and if you can give it to Madam Registrar for shredding.

Johnson:

Oh, okay, thank you. And I'll return -- sorry. I'll return the main document to Mr. Fox.

Judge:

Okay. Good. Thank you.

Johnson:

And thank you --

Judge:

That can be shredded at your convenience.

Dent:

Your Honour, may -- may I ask, is that the only copy of that one document that you have?

Fox:

That I have?

Dent:

Of -- of that one particular page?

Fox:

This is actually the Crown's copy of this document.

Dent:

Okay.

Fox:

And so, that was actually the Crown's --

Dent:

I -- I'm just -- the reason I'm asking you is obviously, if it has no relevance or anything else to that, I just would like any copies or anything of that one page to be shredded. It's involving another --

Judge:

Do you have other copies of that page?

Fox:

I do not have any other copies of the disclosure material at all, but the best I can say to that is I don't have any in my control or possession. Whether or not somebody else might, because I understand there were some hard drives that were lost a few months ago --

Judge:

But you haven't provided that page to anyone?

Fox:

I have not.

Judge:

Okay.

Fox:

Okay. So, let me see, I'm going to try to stay focused on the issues that are directly relevant here. So, I'm almost done then. But getting back to this interview of Fox that we were talking about earlier, where there was some uncertainty about who I should put the questions to, so, I'll ask you --

Judge:

Is that the interview by Constable Turino [sic] (Tanino)?

Fox:

I'm sorry?

Judge:

Is that the interview by Constable Turino [sic]?

Fox:

Yeah, I'm kind of unclear at this point who would be able to answer the questions.

Judge:

All right. Go ahead and ask them.

Fox:

I had a separate document to refer to that. Now, the court may remember that these are actually the points that the Crown previously had stated at one of our appearances that I had agreed to admit to, but then I had said, well, no, I don't agree to that because the wording was supposed to have been changed. These are these same points.

Judge:

All right.

Fox:

Most of these have not been presented to the court and so, they're not really evidence in these proceedings, I guess, at this point, since they weren't admitted to and nobody was questioned on them. Except, Detective, you did mention one in particular that I have a question about. Aha. It says [as read in]:

He stated that he emailed his friend who is running the website, to take it down.

Et cetera, et cetera.

Dent:

Yes, I see that point.

Fox:

Okay. Now, I know what you're referring to in the interview, however, I want to ask you about the use of the word "friend" there. Do you have any knowledge of that? The reason is, in the interview, it was never stated that the person -- it was never stated or even suggested that the person who is currently running the website has any association with me whatsoever and I never referred to that person as a friend or an associate or an acquaintance. So, I would like to get some clarity on -- on this here. Now, are you saying that I admitted that the person who is running the website right now is a friend of mine?

Dent:

If I used the wrong word there, I -- I apologize in describing that relationship. But you emailed somebody who you know to run the website. Whether or not they're a friend or not -- I -- I wrote friend, I --

Fox:

Mm-hmm.

Dent:

-- acknowledge that I wrote friend. If they're not a friend, I apologize that I may have inferred that.

Fox:

Right. Is it your understanding then that I had stated in that interview that somebody that I know is running the website?

Dent:

I don't have that interview in front of me, I can't ask -- answer that question.

Fox:

Okay. The reason I'm asking you is because it sounds like that what you -- that's what you just said a moment ago and so, I just wanted to clarify that.

Dent:

I don't know the exact relationship between you and the person you haven't identified, without knowing who they are, if that answers your question.

Fox:

Yes, yes, it does.

Dent:

Okay.

Fox:

It's just this is a pretty important point. I mean…Aha. Okay. Do you have a copy of the transcript of the Tanino Fox interview?

Dent:

No.

Fox:

Oh.

Dent:

I have a copy of the interview that you and I conducted --

Fox:

Very good.

Dent:

-- I don't have a copy of the Tanino Fox interview because I can't speak to that.

Judge:

Do you have a copy of it, Mr. Johnson?

Johnson:

Well, Mr. Fox has a copy of it.

Fox:

Well, I have it --

Judge:

Yes.

Fox:

-- right here.

Judge:

He's got a copy, but for the officer to follow along.

Fox:

And this -- this was covered when Detective Tanino testified earlier.

Judge:

Okay. Well, you can ask the question. Mr. Johnson will look for it.

Oh, you've got it there? Okay. Good.

So, just refer to --

Johnson:

This is -- this includes -- the arrest of Mr. Fox was recorded and the transport, et cetera, et cetera --

Judge:

Okay.

Johnson:

-- but the interview is in there.

Judge:

So, what --

Dent:

Okay.

Judge:

-- what page are you referring to, sir?

Fox:

Within there, there's a document -- because that's actually a number of documents, but --

Dent:

Yeah.

Fox:

-- there's one in particular that has 39 pages. You'll see at the bottom, it'll say, like, page 10 of 39, et cetera.

Dent:

Okay. Yeah.

Fox:

So, in that transcript, on page 10 --

Dent:

Okay.

Fox:

-- on line -- let's see here, I guess -- so, starting around line 24, there was some discussion between Detective Tanino and myself, where she asks me if I have access -- administrative access to the website and if I don't, who does?

Dent:

I see that, yeah.

Fox:

Right. And then at 29, I explain [as read in]:

Partially because I can't answer that right now, I don't know and that was done very deliberately.

Et cetera, et cetera.

So, that's the extent of what was stated in the interview about my knowledge of who's actually running the website now --

Dent:

Okay.

Fox:

-- as opposed to any suggestion that it's somebody that I know, or some friend, or associate or something.

Dent:

Sorry, what's the question?

Fox:

Oh.

Judge:

Well, I think he's referring back to your reference to it being his friend --

Dent:

A friend.

Judge:

-- who he contacted.

Dent:

Okay.

Judge:

And he's referring you to the actual interview, where he says --

Fox:

Right.

Dent:

Yeah.

Judge:

-- who the individual is.

Dent:

I -- I see that you wrote -- so this -- I'll just read this sentence here [as read in]:

It was done very deliberately, before the probation began in 2018. I've been all over this before, but before the probation began, I transferred ownership and control of the website to another party, so that way I couldn't be compelled to take it down or anything with it, with the understanding that once I'm no longer on probation, that I would take back the website.

Fox:

Yes, okay.

Dent:

So, I -- I read that sentence, yes.

Fox:

Okay. So, do you agree then that I never stated or admitted, or made any comments about knowing or having any association with the person that's currently running the website?

Dent:

I see what you said and I also see that you still have the intention of taking the website back.

Fox:

Well, okay, except, give me one moment here.

Dent:

And again, this isn't my interview, I'm just reading what you --

Fox:

No, I --

Dent:

-- said there.

Fox:

-- I -- I understand you. And sorry, coming to --

Johnson:

If it's of any assistance at all, I did hear the witness say that when he used the word "friend" that was a mistake. And so, I think that's what Mr. Fox is trying to get at and --

Fox:

Well, I --

Judge:

Give you a little bit --

Johnson:

-- I think the rest of this is surplusage.

Johnson appears to be trying to downplay the significance of Dent's use of the word "friend". It was not merely that Dent "made a mistake" by using the wrong word. What I said in the interview was that I had no knowledge of who is running the website, and that what I had done was sent an email to the email address stated on the website. Dent's statement in the RTCC was significantly substantively different from what I had said.

Moreover, it is evident that Johnson made the decision to prosecute the case based almost entirely on Dent's narrative and that bulleted list, rather than on what actually occurred in the interrogation. So, if Dent had actually told the truth in his narrative than there is a stronger likelihood that the BCPS would not have prosecuted the case. Which means I would not have spent that time in custody.

Fox:

-- I agree --

Judge:

I'm going to let him pursue it a little bit longer.

Fox:

-- I agree that the witness did say that perhaps the use of the word "friend" was a mistake and it should have been maybe associate, or -- or something, but I'm just trying to make it clear that the person who is currently running the website has absolutely no connection to me and I don't know who the person is and all of this was done deliberately so that I couldn't be put in a position where I would have to do something against them, or take the website down, et cetera.

Anyway, I guess that's clear then.

And from that list, I don't think that there was anything else that was mentioned here in court, so then it shouldn't be relevant.

Fox:

Okay. So, if I have a probation condition that requires me to do something like take down the website and if -- if I have no ownership, control, influence, or access -- administrative access to the website to do so, what would -- let's see. How would you expect -- or how would you suggest that a person could go about complying with that condition under those circumstances?

Judge:

Well, that's not really for him to say. It's --

Fox:

Right.

Judge:

-- it's not the Crown's obligation to prove that you -- that -- they're proving that you did not do something. If you're going to offer a defence as to why you were unable to do that, that's up to you.

Fox:

Mm-hmm.

Judge:

But the Crown's obligation is to prove that you're in contravention of the positive obligation on you to do something. And that's certainly an argument you can make in your summation, but it's not really something this officer can answer.

Fox:

Right. I was having difficulty with trying to think of how to present that because I was basing it on a statement that he had made earlier, a little while ago.

Fox:

Okay. So, now then, at this point, I want to come back to the line of questioning before lunch about whether or not you have ever deliberately misrepresented facts about a defendant or accused while giving sworn testimony, specifically on November -- on November 26th, 2020, when you went into the courtroom on that day to testify about the statements that I had made to you, did you knowingly and deliberately misrepresent the statements that I had made to you in that prior interview for the purpose of misleading the court?

Dent:

No.

Fox:

Okay. So, while you were giving the testimony, did you believe that the statements that I had made to you on September 17th, 2020 were serious and truthful?

Dent:

Mr. Fox, I can't -- respectfully, Your Honour, I can't -- it's not my role to say whether or not you're lying or not. It's my role to interview you and obtain a statement from you, which is what I did on that date.

Fox:

But I -- wait. I believe I was asking if you -- if you believed that the statements were serious and truthful?

Judge:

Well, that -- that's not really relevant. I mean, at the end of the day, I have to decide who's being truthful.

Fox:

Right, right.

Judge:

Because otherwise, I'm relying on someone to tell me whether they think the person's truthful and that's not helpful to me. At the end of the day --

Fox:

Right.

Judge:

-- I have to decide what I accept, in terms of the evidence.

Fox:

But that's -- that's why I wanted to have the video here, so that if some dispute about whether or not the statements were jokes, or sarcasm, if there was a dispute, the video is here. It's very clear whether or not they were serious.

Judge:

Certainly, at the trial, it would have been open to you, or whoever was conducting your defence, to challenge the officer and say, well, even though Mr. Fox said that, you could tell by his demeanour or his laughter, or his gestures that he wasn't -- that he was just kidding.

Fox:

Right. It looks like I'm almost done.

Judge:

Did you want to use the afternoon break to review your notes and ensure that you've asked all your questions?

Fox:

Unfortunately, I'm not allowed to bring them downstairs.

Judge:

Oh, okay. Why don't we do this, Mr. Sheriff, would you mind remaining in the courtroom with him, so he can review his notes --

Sheriff:

Okay, Your Honour, yes.

Judge:

-- for the break? I'm sorry that you're not going to get your break. It sounds like we --

Fox:

Oh.

Judge:

-- might end a little bit early.

Fox:

No, I -- I could not, in good conscience, stop him from getting his break.

Judge:

Oh, no, no, no, he's -- he's offered to do that.

Sheriff:

That's okay.

Fox:

Okay.

Judge:

I want to make sure that you've got -- you know, we've got a whole other day, so we're not in any rush. I want to make sure that you have ample time to review your notes. I would offer the same thing to Mr. Johnson. Quite often, people need to take the break to regroup and review their notes. So, Mr. Sheriff has been kind enough to offer to stay and so, we'll do that. We'll take the break and then just let Madam Registrar know when you're ready.

Fox:

Okay. Thank you.

Judge:

If you need to take a break after you review your notes, just let Mr. Sheriff know and you can take your afternoon break and then we'll come back.

Fox:

Thank you.

Judge:

Okay.

Sheriff:

Order in court, all rise.

Judge:

Again, you know, Officer, not to discuss the case.

Dent:

Yes.

Judge:

Thank you.

Dent:

Thank you, Your Honour.

(WITNESS STOOD DOWN)

(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)

(PROCEEDINGS RECONVENED)

KYLE DENT,

recalled.

Judge:

Did you have enough time to review your notes, Mr. Fox?

Fox:

Yes, I did.

Judge:

Okay.

Fox:

Thank you.

Judge:

Good.

Fox:

I just have a few quick summary, or recap questions to make sure that I'm clear on where these things stand.

Judge:

Certainly.

CROSS-EXAMINATION BY THE ACCUSED, CONTINUING:

Fox:

So, first, if I understand this correctly, you're saying that there was no search for the email that I had sent to editor@desicapuano.com with Google? With the hosting provider -- or sorry, with -- with the mail provider?

Dent:

The only search that was conducted was obtained -- the search warrant was obtained for the laptop, the phone and the USB. That was it.

Fox:

Right. But I believe that you had stated that you haven't been able to get past the encryption or something on the phone yet and also there's a similar issue with the laptop?

Dent:

No, there is no -- no, the laptop was reviewed and no email was observed.

Fox:

What I mean by similar issue with the laptop is the Linux partition, the partition that I actually use on the laptop.

Dent:

Oh, yeah, I can't say to that, I'm sorry.

Fox:

What you were looking at on the laptop was an unused partition. That's why everything was so old.

Dent:

Okay.

Fox:

But anyway. And it's my understanding that you're saying that there was no attempt or effort made to verify who owns or controls the website, or whether I have any ownership or control of the website?

Dent:

That's correct.

Fox:

And that you have no evidence about whether or not the website was actually taken offline for any period of time during that 48 hours after my release?

Dent:

I --

Judge:

So --

Dent:

-- oh, I'm sorry, Your Honour.

Judge:

-- I'm -- I'm not sure that that's a correct recitation of his evidence.

Fox:

Let me rephrase. Other than the website being online at these specific times that Officer Meiklejohn checked it, there's no evidence or knowledge about whether, at any other times, it had been taken offline?

Dent:

That is correct and if I may clarify, Catherine Meiklejohn is a civilian employee with the --

Fox:

Oh.

Dent:

-- department. I don't want there being an confusion that she's an officer.

Fox:

Okay. And I take from that, that means that I should not be referring to her as Officer Meiklejohn? Okay.

Dent:

Yeah, if -- if you please, thank you.

Fox:

And do I also understand this correctly, that you're saying that there's no evidence that I have had any involvement in the website? I mean during the times relevant. So, I'm not concerned with -- like, I mean, obviously, I did have involvement in the website when it was first created, prior to the probation beginning, but at the times relevant to his matter, which would be the 48 hours following my release from custody -- well, let's say from my release from custody, you know, August 2021, up until now. Do I understand this correctly, that you're saying that there's no evidence that you're aware of, or in the VPD's possession that I have had any involvement?

Dent:

The only evidence that we have right now is you saying that you emailed the content creator to remove the website.

Fox:

Okay. That would be -- that would be all I have.

Judge:

Okay. Anything arising?

Johnson:

No, thank you, Your Honour.

Judge:

Okay. Thank you, you're excused, Officer.

Dent:

Your Honour, thank you very much. If I ask, this is the court transcript, I believe you wanted to shred it afterwards. Can I leave it somewhere?

Judge:

Okay. Just -- you can just give it to Mr. Johnson. He'll make sure it's shredded.

Dent:

Okay. And so, I'll give you these documents back. Thank you very much.

Johnson:

Thank you.

(WITNESS EXCUSED)

Johnson:

And that is the evidence I'm calling on behalf of the Crown, Your Honour.

Judge:

Okay. So, the Crown's case is closed.

Now, the Crown has closed its case. That's all the evidence that the Crown's going to be calling. So, at this juncture, you can decide whether to call evidence yourself, whether you'd like to testify in place of, or in addition to any witnesses you'd like to call, or whether you'd want to call no evidence. It's totally open to you.

Fox:

I wasn't planning on testifying, but I'm wondering now -- I'm -- I'm considering possibly testifying.

Judge:

Well, if you like, it's 25 to 4:00 --

Fox:

Mm-hmm.

Judge:

-- would you like until Friday morning to decide whether or not you're going to testify?

Fox:

No, no, I'm -- I'm not going to testify.

Judge:

Oh, okay. Are you calling any evidence?

Fox:

No.

Judge:

Okay. So, I'm just going to -- because you're not legally trained, I'm just going to point out to you that your probation order places a positive obligation on you. And I think we talked about this at one of your other appearances. You have a positive obligation to take all necessary steps to ensure that certain websites are no longer available. That was a positive obligation. You may have a defence to that. Your defence might be that you didn't have the ability to do that because you didn't have control of the website.

I'm not sure what your defence will be, but it would be similar to you having a positive obligation to turn in all your firearms to the Vancouver Police. You may have a reason for not doing that. They may have been destroyed in a fire. You may have sold them before the probation order was created. There may be all sorts of defences for you not fulfilling a positive obligation.

If you don't call evidence, then you're going to ask me to rely on the evidence that the Crown has put forward and you have to ask yourself whether that will be sufficient. So, I'll -- I'll leave that up to you.

You're indicated you don't want to call evidence. I'm -- I'm going to -- sorry, did you want to say something?

Fox:

Actually, you know what, I -- I've reconsidered and is it too late to change my mind about testifying?

Judge:

What I was going to say to you is, I appreciate you're not legally trained, so you can take until Friday morning to decide if you're going to testify or not because I wouldn't ask you to start your final submissions this afternoon, in any event, because they'll be broken up when we go over to Friday. So, you can decide, between now and Friday morning, if you wish to testify.

Fox:

Could we say that I will testify, but leave that for Friday morning?

Judge:

Yes.

Fox:

Okay. That's --

Judge:

But it's --

Fox:

-- what I would like to do.

Judge:

-- open to you to change your mind on Friday morning. If -- if, before you take the witness stand, you tell me that you've reconsidered and you've decided not to testify, it's totally open to you.

Fox:

Okay.

Judge:

All right? So, and I'm just going to ask Mr. Johnson, do you have any cases that you're going to be relying on in your submissions, Mr. Johnson?

Johnson:

Yes, and I think they may be in the court file. The two cases that I would rely on are the decision of Associate Justice Holmes in sentencing Mr. Fox and the decision of Judge Rideout, who granted this probation order and I believe they've been filed. And if they haven't been, I can provide them.

Judge:

Okay. So, let's see if they're in the file. It would be the reasons of -- so, the reasons of -- it's in this court, Judge Holmes, or Madam Justice Holmes?

Johnson:

Madam Justice Holmes I Supreme Court --

Judge:

In Supreme Court? Okay.

Johnson:

-- who convicted Mr. -- Mr. Fox on the initial offences.

Judge:

Which was?

Johnson:

Which was -- there's a series of them, but I believe criminal harassment.

Judge:

Okay.

Fox:

Criminal harassment and possession of a firearm in a place not authorized.

Judge:

Okay. Do we have those decisions in the court file by any chance?

Clerk:

Your Honour, I don't see it in this court file, but there's also, but there's also, I think, a file associated with this file that might --

Judge:

Okay. Do you have copies of those?

Johnson:

I don't have them handy, Your Honour, but what I could do is send them electronically to perhaps the judicial case manager.

Judge:

Yes. Are you able to do that this afternoon?

Johnson:

I actually do have, from -- just one moment, Your Honour. The transcript that Mr. Fox provided today from the Court of Appeal, that he referenced does have the reasons of Judge Rideout in it.

Judge:

Okay.

Johnson:

And so, I --

Judge:

So, you already have a copy of that transcript.

Fox:

Yes.

Judge:

And this is an extra copy, so, I'll take that copy. This is -- it has the reasons of Judge Rideout --

Johnson:

Yes.

Judge:

-- or Justice Holmes?

Johnson:

Judge Rideout.

Judge:

Judge Rideout. Okay.

Johnson:

And the decision of Madam Justice Holmes is online. I could locate it and have it sent quickly and Mr. Fox --

Judge:

Okay.

Johnson:

-- previous engagement has that disclosure.

Judge:

All right. You can send electronically to Mr. Fox later?

Johnson:

I cannot, but I -- I know that on a previous occasion I provided him with a copy of that decision.

Judge:

Do you have a copy of Judge Rideout's decision?

Fox:

Oh yes, for sure.

Judge:

Oh, you do have a copy of that? Okay.

So, you could send it to me later today, so that I could print it out, or?

Johnson:

Yes, I don't -- I'm reluctant --

Judge:

Or just -- or just send it -- just send it electronically. I'm not in this courthouse tomorrow, so I'm going to just give my email address to Madam Registrar to provide to you. Okay. Would you give that to Mr. Johnson, and I trust you won't share that with anyone, other than your assistant perhaps, if -- if your assistant is helping you send.

Johnson:

Thank you.

Judge:

So, that's for Mr. Johnson to send me a copy of Judge Rideout's -- Judge Rideout's decision; right?

Now, any -- any law with respect to the probation -- your argument on the probation order and his -- his obligations and so, on and --

Johnson:

No --

Judge:

-- the duties and --

Johnson:

-- I'm not going to provide anything further. It's -- I think my argument is, Your Honour has stated it to some extent, but there's a positive obligation on Mr. Fox and the evidence that I've called today establishes that he failed in that obligation.

Judge:

Okay. So, I'll leave that with you. I'm going to ask that you really read the condition carefully that you're bound by to understand --

Fox:

Okay.

Judge:

-- what you were obligated to do; okay?

And so, they -- the Crown has created a prima facie case by establishing that the website was online and accessible on the internet more than 48 hours after your release from prison. So they've established that. You may have an excuse as to why it wasn't removed and maybe you're going to rely on -- on the Crown's evidence about that, or -- or maybe you're going to give your own evidence about that, but you're going to have to explain to the -- convince the court that you were unable to ensure that the website was not accessible.

Fox:

Okay.

Judge:

All right? Okay. Any questions --

Fox:

No.

Judge:

-- Mr. Fox? Okay.

Anything else, Mr. Johnson?

Johnson:

No, thank you.

Judge:

Okay. We're going to return at 9:30 on Friday. The expectation is that you'll testify on that date, but you may change your mind before then, so I'll leave that up to you.

And then the expectation will be, whether you testify or not, both of you will be prepared to argue -- make final argument in the case on Friday, unless, for some reason, we run out of time, but hopefully we won't --

Fox:

Okay.

Judge:

-- okay?

Johnson:

Yes. And Your Honour, I do have a copy of that other decision on my phone and so, I can send it to you --

Judge:

Just -- if you can --

Johnson:

-- within moments.

Judge:

-- just forward it to me, then I can print it off before I leave today.

Johnson:

Thank you.

Judge:

Okay. Thank you.

Sheriff:

Order in --

Judge:

Thank you, Madam Registrar.

Sheriff:

-- order in court.

(PROCEEDINGS ADJOURNED TO FEBRUARY 25, 2022, AT 9:30 A.M.)

Transcriber: P. Moore