Transcript of Trial & Sentencing Proceedings (2022-02-25)

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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 25, 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

PROCEEDINGS AT TRIAL

WITNESSES FOR THE ACCUSED
- PATRICK FOX - for Accused
Submissions for Crown by Cnsl C. Johnson
Submissions by the Accused

PROCEEDINGS AT SENTENCE

Submissions on Sentence for Crown by Cnsl C. Johnson
Submissions on Sentence by the Accused

EXHIBITS

EXHIBITS AT TRIAL

EXHIBIT 1: Letter from Patrick Fox to Detective Jennifer Fontana, dated June 6, 2019

Vancouver, B.C.

February 25, 2022

Johnson:

Morning, Your Honour, Chris Johnson, J-o-h-n-s-o-n, I appear for the Provincial Crown --

Judge:

Yes.

Johnson:

-- and I can recall the Fox matter.

Judge:

Thank you. And you concluded your case on Wednesday --

Johnson:

Yes.

Judge:

-- and now it's Mr. Fox's opportunity to present his case.

Johnson:

Yeah.

Fox:

I would like to testify.

Judge:

All right. Feel free to come up to the witness stand and bring any documents with you that you'll want to refer to.

Fox:

I may or may not require some of these during -- probably during cross-examination, so should I --

Judge:

Just take them with you, sure.

Johnson:

And I've provided Mr. Fox with a pen, Your Honour, and he has some paper, I see.

Judge:

Oh good. Okay. Thank you for doing that.

PATRICK FOX

the Accused herein, called on his own behalf, affirmed.

Clerk:

Please state your name and spell your full name for the record.

Fox:

Patrick Henry Fox, P-a-t-r-i-c-k, H-e-n-r -- H-e-n-r-y, F-o-x.

Judge:

Okay. Thank you. Now, feel free to stand or sit, whatever is more convenient for you. Perfect. Okay. So, because you don't have a lawyer assisting you with the questions, you can just relate your story to me in the fashion that you feel is best; okay? So, just tell me what you want me to know.

EVIDENCE BY THE ACCUSED:

Fox:

Okay. In 2018, I was serving the sentence on the index offence at Fraser Regional Correctional Centre and in that year, the original website, which was accessible at desireecapuano.com had gone offline because the hosting plan expired and it hadn't been renewed in time. And my -- a friend of mine --

Judge:

Sorry, what -- what expired?

Fox:

Oh, the original website, which was accessible at desireecapuano.com.

Judge:

It expired. Okay. You'll have to tell me on -- I'm not very technically --

Fox:

Right.

Judge:

-- knowledgeable, so you'll have to explain that to me a little bit. Why -- why would it expire?

Fox:

Sure, but first, can ask -- I should have brought the water with me.

Judge:

Oh, of course, feel free to get it.

Johnson:

I'll hand it to you.

Judge:

Okay, Mr. Johnson will hand it to you.

Fox:

Thank you.

Okay. The reason that it expired was because the hosting plan, which had to be paid for periodically, had ran out and needed to be renewed.

Judge:

Oh, okay, in other words, it had been paid -- prepaid and the payment had run out?

Fox:

Right, right. And the reason that happened was because I had automatic payments set up with my bank account, but that account eventually ran out of money. And so, my friend in Los Angeles, who I have no objection to naming, Liz Munoz --

Judge:

How do you spell the last name?

Fox:

Oh, M-u-n-o-z.

Judge:

Okay. In Los Angeles, yeah.

Fox:

Right. She had overlooked or forgotten to make sure that the plan would continue to be paid for.

Judge:

Okay.

Fox:

So, that's why the original website had gone offline.

Judge:

Mm-hmm. And that was in 2018 it went offline?

Fox:

Yes.

Judge:

Okay.

Fox:

And then at some point thereafter, in 2018, the new website was put online. It was set up with all the same -- all the same content as the original website. In November or December, my friend, Ms. Munoz, had informed me that she had taken care of that, that the website had been put back online.

Judge:

Sorry, so -- so, in 2018, it -- the same website was put back online with the same content by Ms. Munoz?

Fox:

Well, it couldn't have been by Ms. Munoz herself; she wouldn't have the technical expertise to do that. And so, somebody else would have had to have to done it for her.

Judge:

But at her request?

Fox:

At her request. Now, I want to emphasize, it was not because I had requested that she do that, I guess she just did it because she was responsible for looking after the original website.

Johnson:

And sorry, was that in November or December of 2018? I missed that.

Fox:

It was in November or December that she informed me of it. When it actually was put online, I have no idea.

Judge:

Okay.

Fox:

And so, I informed her at that time that because of the probation conditions, which were going to be starting at the end of December, I'm prohibited from having any involvement in the website. So, I told her, I don't want to know anything about who had put it online, or any other information about it because as long as I don't know, then I can't be compelled to say who it is that's running it. So --

Judge:

Okay. So, just stop for a second --

Fox:

Sure.

Judge:

-- because I'm taking notes of what you're saying and unfortunately, I can't write as fast as you can speak.

Fox:

Right, sorry.

Judge:

So, just give me a moment to catch up. Just give me a minute, I have to catch up.

Fox:

Yeah.

Judge:

Okay. Go ahead.

Fox:

Before I continue, I should say I drank a lot of coffee before I left the jail this morning, that's why I'm a little jittery and --

Judge:

That's fine and if you need a break to use facilities, just -- just let me know.

Fox:

Okay.

Judge:

Yeah.

Fox:

Thank you. So, sorry, I'm trying to remember where I was.

Judge:

You -- what you said is you knew you were going to be released at the end of December, so you told Ms. Munoz that you could not have anything to do with the website, so don't tell you who relaunched it or anything about it.

Fox:

Right. So, I told her until the probation period ends, I'm prohibited from having anything to do with the website and so, I don't want to know anything about who put it online, et cetera, so that I couldn't be compelled to disclose that information.

And so, I know it was online at the time that I was released at the end of December because I checked and so, I know that it was sometime prior to that.

Now, given that technically, I never actually had physical ownership or control of the website, because I was in custody, it would have been impossible for me to be the person who put it online.

Judge:

Okay.

Fox:

And my ability to contact the people or person that is currently maintaining the website, if, in fact, anybody even is, is only through the email address editor@desicapuano.com, which is on each page of the website.

Judge:

Okay.

Fox:

Sorry, I'm trying to think if there's anything else that would be relevant to that at this point that I should say.

No, I don't think that there's any other information about that that I can offer up. I'm sure there'll be questions that will come up on cross-examination though.

With respect to -- with respect to the current allegations, I was released from custody on August 12th from FRCC. And then on the 13th, I had sent an email to that address, editor@desicapuano.com requesting that they take down the website because of the probation conditions and about how I could be prosecuted and convicted about this. But I have no idea of anybody is even monitoring that email address.

Now, I do understand that there have been updates made to the website over the past year or year and a half, while I've been in custody and so, clearly, somebody is doing something with the website.

Judge:

Yes?

Fox:

I don't think that there's much more that I can say about actions that I took related to the current charge because I was only out of custody for five days. And like, if I had sent the email on -- on the 13th, I mean, I would have to wait maybe a couple of days or so to get any kind of response, or maybe even a month or two months, I have no idea, to be honest. Beyond sending an email to them, requesting that they shut it down, I don't know that there's much more that I could have done. I could contact the hosting provider, GoDaddy, but since I'm not the account holder, I mean, they're not going to make any changes to the account at my request.

Judge:

Okay.

Fox:

I would like to say that with respect to the statements that I had made that upon -- or once the probation orders expire, I intend to return to running the website, I don't believe that there is anything inappropriate or questionable about stating or intending to do that because if there's a probation order that prohibits a person from engaging in otherwise lawful conduct, once the probation order ends, there's -- there's no reason that they would not be allowed to continue or go back to engaging in that lawful conduct.

For example -- and I'll pause here.

Judge:

Yeah, go ahead.

Fox:

Oh, okay. For example, the order that was imposed by Justice Holmes, back in 2017, prohibited me from leaving British Columbia or from being within a hundred metres of the U.S. border and it prohibited me from using the internet for anything other than sending emails or for employment. Now that that order has expired though, I mean, there's absolutely nothing wrong with me now using the internet for any purpose whatsoever, or as long as it's lawful, or for returning to the U.S., or going near the U.S. border. And likewise, since there is nothing illegal about the website, there is nothing inappropriate for me to say that once the -- once the prohibition on having anything to do with the website is removed, that I would intend to go back to running it.

Also, it should be mentioned that once that that happens, most likely, I'm going to be back in the U.S. and so, it would be the laws there that would apply, not any laws that would be up here.

Judge:

I see you're looking at some notes. Are these notes you made for your testimony, or?

Fox:

These are actually notes that I prepared for my closing arguments --

Judge:

Okay.

Fox:

-- and so, I just want to scan over it quickly, see if there's something else I should mention here.

Judge:

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

Johnson:

No, I don't, Your Honour.

Judge:

Okay. Go ahead.

Fox:

And I bring up this next point because I'm sure it's going to come up on cross-examination. There has been -- there've been some allegations by the Crown about me stealing their e-disclosure laptop and some hard drives and such and I will say right now, I did not steal any of their e-disclosure material and I have absolutely no knowledge of what may or may not have happened with it.

Judge:

Okay.

Fox:

I believe that's all the relevant information I can offer at this time.

Judge:

Okay. So, that's the end of your testimony in chief? That's the end of your own testimony?

Fox:

Yes. I'm sure there's a lot that I'm overlooking because I don't have expertise in this, but…

Judge:

Okay. Well, just take your time.

Fox:

Well, no, what I mean is, I wouldn't even know what information --

Judge:

Oh, I see.

Fox:

-- would be relevant, or what information I should bring up.

Judge:

All right. Then I'll invite Mr. Johnson to conduct cross-examination.

Johnson:

Thank you, Your Honour.

CROSS-EXAMINATION BY CNSL C. JOHNSON:

Johnson:

Mr. Fox, I take it you acknowledge that you're here because of a probation order that requires you to make all reasonable efforts to take down the website www.desicapuano.com; is that correct?

Fox:

I acknowledge that I am here in relation to that probation order, yes.

Johnson:

And you would agree, just by way of your background, that this all started many years ago and ultimately, you were convicted by a jury and -- in Supreme Court and the judge was Madam Justice Holmes?

Fox:

I agree that I was convicted. I also acknowledge, though, that there is a copious amount of evidence of perjury and prosecutorial misconduct that occurred during that trial which is now publicly accessible on the very website that we're talking about here.

Johnson:

And would you agree that you appealed that and that your appeal was not successful?

Fox:

I would agree that I appealed that and the appeal was dismissed for failure to prosecute for the reason that I was at North Fraser and had no access to legal research source material, or educational material, to litigate the appeal.

Johnson:

And so, ultimately, you'd agree that your appeal was unsuccessful?

Fox:

I would -- well but saying that it was unsuccessful kind of suggests that it was dismissed on the merits and that's not the case.

Johnson:

I didn't suggest anything. I'm just --

Fox:

Okay.

Johnson:

-- suggesting that it was unsuccessful. That is, you were not successful in overturning your conviction?

Fox:

That is correct, I was not successful in overturning the conviction because it was dismissed for failure to prosecute.

Johnson:

All right. And just so that we're clear, because I'm going to be asking you questions about this, you acknowledge that you've been convicted of those offences, which I'll outline in a second, but also breaching the probation -- subsequent probation orders on a number of occasions?

Fox:

I agree with that.

Johnson:

And I'm just showing you a copy of your criminal record and I'm just going to ask you -- it's two pages on each side, if you could acknowledge that that is, in fact -- those are, in fact, the things that you've been convicted of.

Fox:

Sorry, there's an entry on here I'm not familiar with. I'm wondering what this is about? This last one?

Johnson:

The last one? Yes, that -- sorry, that is not a conviction --

Fox:

Oh.

Johnson:

-- that was the 525 --

Fox:

Right.

Johnson:

-- bail application that you made that was not successful.

Fox:

Right, right. Okay. Yes, then I would say everything appears to be accurate on here.

Johnson:

Thank you. And so, you agree that in November of 2017, you were sentenced for two offences. One was criminal harassment and the second one was possessing a firearm where not allowed?

Fox:

Yes, I agree with that. And I would like to point out that none of this is in dispute.

Johnson:

Right. And you were sentenced to a term of three years in jail, less time served, and three years' probation; is that correct?

Fox:

That's not correct. It was actually three years and 10 months in jail.

Johnson:

All right.

Fox:

Because it was three years on the criminal harassment, 10 months on the firearm --

Johnson:

Right.

Fox:

-- offence.

Johnson:

Now, let me ask you this, if it was three years 10 months and then you were given time credited, as of November 10th, 2017, how much time did you spend in jail on that charge?

Fox:

From November 10th, 2017 until December 30th, 2018.

Johnson:

Right.

Fox:

So, about 13 months, I guess.

Johnson:

And then you were released and you were on probation for a period of three years at that point.

Fox:

But wait, before I move on to responding to that one, that was that period of time after I was sentenced, plus all of the pretrial time. I think I had spent 17 months --

Johnson:

Yes.

Fox:

-- in pretrial custody up to that point.

Johnson:

Yes.

Fox:

Okay. And so, the next question then about -- sorry --

Johnson:

You said -- you indicated you were released from that jail sentence in December of 2018?

Fox:

Yes.

Johnson:

And then as of December 2018, you were put on -- the probation started to apply; is that correct?

Fox:

Yes, on December 30th, 2018, I was released from custody and that's when the first probation order took effect.

Johnson:

All right. And then in June of 2020, you were convicted of breach of a -- two counts of breaching of a probation order; is that correct?

Fox:

June of 2020 --

Johnson:

I believe the prosecute --

Fox:

-- that was the first one that you had prosecuted; right?

Johnson:

No, I believe that --

Fox:

Because the one that Bernie Wolfe had prosecuted, that was one about going near the border and returning -- or leaving Canada.

Johnson:

Yes, I believe that was the one that Bernie Wolfe had prosecuted.

Fox:

Is that the one you're talking about now?

Johnson:

Yes.

Fox:

Was that June? I thought it was March or -- anyway, it was in 2020.

Johnson:

All right. And then, again, on August the 19th of 2020, you were convicted of breach of probation?

Fox:

Yes.

Johnson:

And if it refreshes your memory, I was the --

Fox:

That was the one --

Johnson:

-- prosecutor.

Fox:

-- you prosecuted.

Johnson:

And then on April 12th of 2021, you were again convicted of breach of probation and again, to refresh your memory, I was the prosecutor?

Fox:

Yes.

Johnson:

And on both of those occasions, those two latter occasions, the specific breach was that you failed to remove the website, essentially?

Fox:

Well, essentially, but more specifically, on the first one, the allegation was that I had republished the website, rather than failing to take it down --

Johnson:

Right.

Fox:

-- because the Crown, apparently, at that time, was not aware that the website was already up and so, I was accused of putting the website online in March of 2019, even though it had already been up for, I don't know, six months or something, or a year at that point.

Johnson:

Right. And with respect to both of those convictions, that is, November of 2017 and -- sorry, I'm giving you the wrong dates. On -- the conviction on August of 2020, you received a jail term of six months and a probation order of six months; is that correct?

Fox:

From August 2020, that --

Johnson:

That was from Judge Phillips.

Fox:

-- that's correct, yes.

Johnson:

And then on April the 12th of 2021, with respect to that breach, you received a jail term of 16 months less time served and a probation order of one year; is that correct?

Fox:

More specifically, it was 16.5 months' jail sentence.

Johnson:

All right.

Fox:

And then the probation order, I guess, is one year.

Judge:

Sorry, did you say August 20th --

Johnson:

That --

Judge:

-- August of 2020 was by Judge Dhillon?

Johnson:

Judge Phillips.

Judge:

Okay. Phillips, oh, sorry. Yeah.

Johnson:

Judge N. Phillips.

Judge:

Yeah.

Johnson:

And then on April the 12th of 2021, that was Judge Rideout; is that correct?

Fox:

Yes.

Johnson:

And so, on that -- with respect to that conviction, you're still on probation for some period of time?

Fox:

Yes, I believe that will expire in August of this year.

Johnson:

Right. Now, with respect to your -- the matter where you were convicted by Judge Phillips, you've filed an appeal of that; is that correct?

Fox:

Yes, and that is still outstanding.

Johnson:

Right. And you've received transcripts of that appeal?

Fox:

Yes.

Johnson:

And I do have a copy. I just wanted to ask you about one portion of that --

Fox:

Mm-hmm.

Johnson:

-- if I might. And would you agree with me that what I've just handed up to you is a transcript of the trial that took place before Judge Phillips?

Fox:

It appears to be.

Johnson:

And on that occasion, you were convicted and then you made submissions to the judge?

Fox:

Yes.

Johnson:

Or argument. And if I could ask you to turn to page 53?

Fox:

Okay.

Johnson:

And there's a heading at line 9 which says: Submissions on Sentence by the Accused.

Fox:

Yes.

Johnson:

And first of all, I should ask you, this -- you've already agreed, I think, but this is a transcript of that trial; you agree with that?

Fox:

I agreed that it appears to be, yes.

Johnson:

Right. And if I could draw your attention to line 31 --

Fox:

Okay.

Johnson:

-- and I'm going to suggest that you made this submission to the court, where you said [as read in]:

And with respect to the probation condition about taking down the website, with all due respect to everybody who is here, there is absolutely no way the website is going to come down on my release from custody and I don't expect to be released from custody before the end of December 2021, end of probation.

Do you see that?

Fox:

Yes, I do.

Johnson:

And do you agree that you said that?

Fox:

Yes, I do agree that I said that and it makes perfectly good sense that I would say that. If I don't have any ownership or control over the website, then putting me on probation or locking me up in jail is not going to cause the website to come down. So, for me to say that the website is not going to come down when I get released from custody, I mean, it's not an admission that I have any intention of violating the probation conditions, it's not in my control to do so.

Johnson:

Right. And your explanation, somewhat similar, follows --

Fox:

Mm-hmm.

Johnson:

-- that, starting at line 38, where you said [as read in]:

But on my release from custody, I intend to return to the United States and so, I don't see how any probation conditions imposed here at this time are going to make any difference at that point.

So, regardless of what the decision is on that, the website is not going to come down. It's not going to go away. If I need to transfer ownership of the website to another party, so that I technically don't own it at the time, so be it, but that's all.

Fox:

Sure.

Johnson:

And so, that, you've already agreed, was in August of 2020; is that correct?

Fox:

Yes.

Johnson:

And Your Honour, I'm wondering if I could -- I've provided Mr. Fox with a copy and for fullness, I'll provide a copy to Your Honour.

Judge:

Okay.

Johnson:

And that portion of the transcript was on page 53.

Judge:

Right.

Fox:

Now, I would like to point out also though that the statements here in this transcript are submissions that were being made. I guess -- right, regarding the sentence.

Johnson:

Yes, I -- I think --

Fox:

This was not sworn testimony.

Johnson:

That's correct.

Fox:

Okay.

Johnson:

Now, Mr. Fox, do you agree that you, on June 6th of 2019, wrote a letter to Detective Jennifer [phonetic] Fontana of the Vancouver Police Department?

Fox:

Yes, I did.

Judge:

Sorry, what date? What was the date?

Johnson:

June 6th of 2019.

Judge:

June 6, 2019, and he wrote a letter to whom?

Johnson:

Detective Jennifer Fontana, F-o-n-t-a-n-a.

Judge:

Okay.

Johnson:

And I will supply you with a copy of that, Mr. Fox and can you verify that that's the letter that I'm asking you about, please?

Fox:

It certainly appears to be that letter, yes. And I can say, proactively, that at the time of writing this letter, I was very actively seeking to convince the B.C.P.S. to prosecute me for criminal harassment based on the new website. In fact, even to this day, I would still do everything that I can to try to convince the B.C.P.S. to prosecute me for criminal harassment based on this new website.

Johnson:

All right. And just for the record, when you refer to the new website, I'm assuming there's an old website. So, just so that we're all clear here, the old website that you're referring to is www.desireecapuano.com?

Fox:

Yes.

Johnson:

And when you say the new website, you're referring to www.desicapuano.com?

Fox:

Yes.

Johnson:

And with respect to this letter, essentially, I think you've said this already, but I'm suggesting that the main purpose here was that you were inquiring about being charged with criminal harassment?

Fox:

Well, first, let me say, I don't believe that this letter has been disclosed to me in this matter. I don't know if that raises some disclosure issue, but --

Johnson:

Well, it was an exhibit in one of your previous trials.

Fox:

Yeah, it was, yeah.

Johnson:

And so, going back to my question --

Fox:

Right.

Johnson:

-- you'd agree with me that the purpose of this letter was you were, I think, and disagree if you feel like it, but you were encouraging the police to charge you with criminal harassment?

Fox:

Yes, but more specifically than the police, what I want or wanted was for the B.C. Prosecution Service to prosecute me for criminal harassment.

Johnson:

Right. And just --

Fox:

The police did actually recommend a charge of criminal harassment on this and then the Crown specifically said no, that they won't.

Johnson:

That's correct, and you -- you, in fact, would agree that you've asked me to charge you with criminal harassment?

Fox:

Yes, I even said that I would plead guilty to any breach charges that you bring against me relating to the website if you would agree to prosecute me for that.

Johnson:

And just to be open here, the purpose -- the reason why you'd like to be charged with criminal harassment is because it would be criminal harassment of Desiree Capuano and you would get to cross-examine her?

Fox:

Whether I cross-examine her personally or another 486 -- it was a 486; right? The appointment of --

Johnson:

Yes.

Fox:

-- the lawyer? Or if it's done that way, regardless, the important point though is that if I were to be prosecuted for criminal harassment again, based on the current or new website, that would necessarily bring up or draw attention to all of the corruption and the misconduct and the perjury that occurred at the first trial and that would be the objective of that.

Johnson:

And with respect to this letter then that is before you, would you -- you've already indicated that it's yours, but on page 2 of that letter, if I could reference a portion, at the bottom of the page, where you wrote [as read in]:

On the other hand, how do you and the Crown explain not pursuing another criminal harassment charge to the many angry feminists and Canadian news media who adamantly refuse to accept that Capuano is simply an evil person?

Question -- question mark.

Fox:

Okay. Before we go any further, I would like to object at this point because I don't see how any of this has any relevance to the current charge.

Johnson:

Well, the next sentence, I believe does, and perhaps you could wait until I get there.

Fox:

Okay.

Johnson:

And the next sentence is [as read in]:

Particularly since, by publishing the new website, I have engaged in exactly the same conduct which Justice Heather Holmes declared formed much of the basis of the guilty verdict in 2017.

Do you see that?

Fox:

Yes, I do see that and I can explain that if I had said in the letter that my friend, Liz, had arranged for the website to be put back online with no involvement or not in any -- not in response to a request from me, that would mean that I would have nothing to do with the website and therefore, cannot be prosecuted for criminal harassment based on it. Since my objective was to antagonize or influence the police to prosecute or initiate prosecution for criminal harassment, then that wouldn't have really been consistent with what I was trying to accomplish.

Johnson:

But regardless, you'd agree that in this letter, you said [as read in]:

…since, by publishing the new website, I have engaged in exactly the same conduct…

Et cetera.

Fox:

Yes.

Johnson:

And --

Fox:

Yes, I do say that there.

Johnson:

-- and the clear reading of that, I'm suggesting, is that you published the new website, www.desicapuano.com.

Fox:

Well, I would say that would be a clear reading of that. I would also point out in my interviews with, for example, Detective Dent and Detective Tanino, I have admitted to a great many -- a great many potential criminal offences that I clearly had nothing to do with.

Johnson:

So, you're suggesting that you confessed to things that you didn't do; is that what your suggestion is?

Fox:

I'm suggesting that there have been times with the police, be it the RCMP or the VPD where I had said things that I -- and probably they as well -- knew that were not true because I was deliberately trying to get them to start a prosecution for criminal harassment. And I don't see how that is much different from the police making false statements to me, or misrepresenting issues to me in order to build a rapport and gain my trust, so that I would say things that they could use against me. If it's okay for them to lie and manipulate me, then it should be okay for me to do the same back to them, should it not?

Johnson:

Thank you.

Fox:

You're welcome.

Johnson:

And Your Honour, those are the questions I have about that letter and I'd like to file a copy with the court, please.

Judge:

Okay.

Johnson:

And if that could be the next exhibit.

Judge:

This will be the next exhibit then.

What exhibit is that, Madam Registrar?

Clerk:

Your Honour, I [indiscernible] --

Judge:

I don't know that --

Clerk:

-- [indiscernible].

Judge:

-- we have any exhibits so far in this, do we?

Clerk:

I [indiscernible].

Johnson:

That could -- that could well be, yes.

Judge:

I think this is Exhibit 1 then.

Johnson:

Thank you.

EXHIBIT 1: Letter from Patrick Fox to Detective Jennifer Fontana, dated June 6, 2019

Johnson:

And Mr. Fox, if I could have that copy back, please? Thank you.

Fox:

I'm sorry, since that's an exhibit in the case, shouldn't I be allowed to have a copy?

Judge:

Does he not have a copy?

Johnson:

He has a copy of that exhibit.

Fox:

Really? Where?

Judge:

Do you have a copy of the letter?

Johnson:

It is referenced in some of the materials that you have. I actually don't object to giving you another copy if --

Judge:

If you have another copy, it -- it would probably be helpful --

Johnson:

That's fine.

Judge:

-- to give it to him now. Sure.

Fox:

Thank you.

Judge:

So, you have no objection to that being Exhibit 1? Mr. Fox?

Fox:

Oh, yes, yes, I just marked it as --

Judge:

Okay. Thank you.

All right. Go ahead, Mr. Johnson.

Johnson:

Now, Mr. Fox, with respect to the matters that I've canvassed with you, you've indicated that you've been to the Court of Appeal and if I suggest that you've been there on a number of occasions, would you agree with that?

Fox:

Yes.

Johnson:

And currently, I gather, you have matters that are before Mr. Justice Fitch in the Court of Appeal?

Fox:

Yes, there are two matters before the B.C. Court of Appeals and then one in the B.C. Supreme Court that was a summary conviction appeal.

Johnson:

All right. And you, I gather, when decisions are made, you get copies of them, do you?

Fox:

Generally.

Johnson:

And I'm going to provide you a copy of a decision of Mr. Justice Fitch in our Court of Appeal, which entitled R. v. Fox and it's -- it's dated August 10th of 2021.

Fox:

Sure. Now, but before we go on with this, there is something that I would like to comment on with respect to this letter and your suggestion that there's an admission in this letter that is somewhat incriminating, I would like to point out that regardless of what statements might have made by me or by anyone else, the physical evidence fully supports what I am saying here today and what I've been saying all along. And I believe that the physical evidence far outweighs words that people can say. Continue.

Johnson:

Why, thank you. You've now got this decision before you.

And Your Honour, I intend to refer to several portions of it, so, it might assist the court if there was a --

Judge:

Yes, thank you, then I can follow along. Thank you.

Johnson:

And Mr. Fox, you'll see, if you look at page 3 of that decision, that this was an application by you for an order appointing counsel on your behalf in two appeals?

Fox:

Yes.

Johnson:

And you argued that, I take it, and there was a Crown counsel who argued on the other side and then this decision was granted; is that right?

Fox:

Well, it was partially granted on one of the appeals and I believe, dismissed on the other.

Johnson:

Well, when I said granted, I meant this decision was given, I should have said.

Fox:

Oh, oh, okay, yeah, yeah, yeah.

Johnson:

And I just want to canvass some portions of the decision. And so, if I could ask you to turn to page 4, under the heading of Background Facts in paragraph 4 -- do you see that?

Fox:

Yes, I do.

Johnson:

Where the court states [as read in]:

Since 2014, the appellant has engaged in a relentless campaign of harassment directed at his former spouse.

Fox:

I do see that and I do have a comment about that. What Justice Fitch is referring to in here comes straight from Justice Holmes reasons for sentence, which I believe the court had received from Mr. Johnson a couple of days ago. And I strongly object to the ongoing use by the Crown of Justice Holmes' reasons for sentence because I believe -- I believe it grossly misrepresents or mischaracterizes the facts of the situation. And it is my strong belief that if anything that is stated in Justice Holmes' reasons for sentence were actually true, then it would be shocking that the Crown refuses to prosecute me for criminal harassment, because apparently, I'm continuing to engage in the same conduct that she felt so strongly about.

Johnson:

And just looking at that paragraph going on --

Fox:

Mm-hmm.

Johnson:

-- where it states:

Among other things, the appellant created a website in the name of his former spouse. The website contains a large amount of private information about the appellant's former spouse and others with whom she is associated. The purpose of the website appears to be to denigrate, humiliate and intimidate her, to interfere with her personal relationships, and to impair her economic prospects and emotional security.

So, just on that paragraph, I'm sure you have more to comment, but just so that we're all clear, that is referencing, you say, the decision of Madam Justice Holmes in sentencing you; is that right?

Fox:

Yes, this is essentially just taken straight from Justice Holmes' reasons for sentence and I mean, I obviously dispute the accuracy of much of what is said in there, but regardless.

Johnson:

And --

Fox:

The point though is that I don't believe that those are Justice Fitch's words or opinion, he's just --

Johnson:

-- you think --

Fox:

-- going based on that.

Johnson:

-- you suggest that he's borrowed that from Justice Holmes, is that your explanation?

Fox:

Yes. But I'm not saying that he -- that I believe that he -- his opinion is one way or the other.

Johnson:

Right. When -- again, just for clarity, when Mr. Justice Fitch refers to your former spouse, we're talking about Desi or Desiree Capuano; is that correct?

Fox:

The best I can say on that is he's referring to the person that was known as Desiree Capuano because it's my understanding that she has legally changed her name since then and so, she is technically no longer Desiree Capuano.

Johnson:

Right. And she's your -- that person is your former spouse?

Fox:

Well, again, technically, since she had the marriage annulled, we were never legally married.

Johnson:

All right.

Fox:

And so --

Johnson:

Whether legally married or not, you were in a relationship with her.

Fox:

We were in a relationship --

Johnson:

I'm using the word --

Fox:

-- yes.

Johnson:

-- spouse in a general term.

Fox:

Yes, yes. I'm just clarifying that because the marriage was annulled, as opposed to a divorce, under U.S. laws, at least in Arizona and California, it's as though the marriage never existed.

Johnson:

Right. Now, if I could ask you to turn to page 6 of this decision, paragraph 9. That references your trial and conviction before Judge Phillips and I've already asked you questions about that; is that correct?

Fox:

Yes.

Johnson:

And you've seen this transcript and there's nothing, I'm going to suggest, in there that you disagree with? Paragraph 9?

Fox:

One moment, please, because I haven't read this recently.

Johnson:

Yes, take your time.

Fox:

Okay. Yes.

Johnson:

And then moving on to page 7, at the bottom of the page, paragraph 13, Events Giving Rise to Appeal, you see that?

Fox:

Yes, I do.

Johnson:

And paragraph 13, again, you'd agree with that, I take it?

Fox:

Yes, I'd agree with that.

Johnson:

And then onto the next page, it indicates that the appellant was tried in a Provincial Court of British Columbia before The Honourable Judge Rideout?

Fox:

Yes.

Johnson:

And then on page 9, at paragraph 20, the court quotes part of Judge Rideout's decision; you see that?

Fox:

I see it. Give me one moment, please, to give it a quick read. Okay. Yes, I do not agree with what he's saying there and that does actually form part of the basis of the current appeal.

Johnson:

Right. So, just on that point, you agree that Judge Rideout said that, but you appealed that decision; is that right?

Fox:

I agree that Judge Rideout did say that, yes.

Johnson:

Now, with respect to this particular case here, you heard the evidence from Catherine Meiklejohn that on four different occasions, she checked the website www.desicapuano.com. This is, I believe, August 12, 13, 14 and 15 of 2021 and she testified that that website was operational. And I take it you don't agree -- you don't disagree that at the time she checked, it was operational?

Fox:

I agree that she did check it once a day for a four-day period and at each of those times, it was -- well, okay, I can't say that it was or was not operational at that time, but I give her the benefit of the doubt that it was. Because the five days that I was out, I was not sitting there monitoring the website. So, whether or not it was online or not, I couldn't say.

But I also do remember that she also testified that she has no knowledge of whether or not the website was -- remained online in between those periods when she checked it.

Johnson:

Right.

Judge:

So, just for my understanding because I made a note and I reviewed this the other day, I understand, Mr. Fox, that you made that admission at the beginning of the trial, that the website was operational on the 12th, 13th, 14th and 15th of 2021.

Fox:

I believe that my admission was that it's my understanding or that I believe it was online because I -- I have no firsthand knowledge of it. As I said, I didn't continuously go and check that the website was still up and running.

I mean, more appropriately, I would say I don't dispute that the website was online for most of that time.

Judge:

Okay.

Johnson:

I take it that your explanation now is that -- well, first of all, with respect to the website www.desicapuano.com, do you now disagree that you created that website? Is that your evidence?

Fox:

First, let me say I -- I believe it's not necessary to put the www part in front because it's actually the host name, not the domain name and so, it is sufficient to just say desicapuano.com.

And right now, under oath, subject to being charged with perjury and having sworn that I'm going to say that everything that I say is true to the best of my knowledge and ability, I say that I had no direct involvement in putting that website online and that that would be evidenced by the fact that when it was put online, I was in custody at Fraser Regional Correctional Centre and had no access to the internet, or to the material, for that matter.

Johnson:

And your evidence, I gather, is that that website, desicapuano.com, is essentially a reboot of the old website?

Fox:

It is, for the most part, from what I've seen, mostly the same content that was on the original website, but it is clear that there have been some updates to, like, the layout and the colours, and there have been some additional posts that have been made on there. And I believe that the information related to Capuano's other son has been removed from it.

Johnson:

And you indicated today that you have a friend whose name is Liz Munoz?

Fox:

I do have a friend whose name is Liz Munoz, yes.

Johnson:

And she lives in California?

Fox:

To the best of my knowledge, she still lives there.

Johnson:

All right. And you talk to her on occasion and correspond with her?

Fox:

Not so much anymore because I've been in -- well, I've been exiled to a foreign country now for eight years and I've been in jail in this foreign country for five and a half years and over that period of time, people have a tendance to move on with their lives and gradually, over time, like, we've been moving apart because she has a life and she's gotten married and she's moved on with things and I'm sitting in jail.

Johnson:

Right. But she's still your friend --

Fox:

I would --

Johnson:

-- you've already --

Fox:

-- I would still consider her my friend, yes, but we're not in regular contact like we used to be.

Johnson:

All right. And your explanation, I gather, is that with respect to desicapuano.com, is that you gave control of that website to your friend, Liz Munoz?

Fox:

Technically speaking, I cannot say that I gave control of desicapuano.com to Liz Munoz or to anyone else because technically speaking, I never had control of it to give to her. When she informed me that it'd had been -- it'd been put back online and then I immediately told her, at that point, there's no point in giving any control of it to me. There's nothing I can do with it until the probation ends.

Johnson:

Could you suggest any possible reason why some other person, aside from yourself, would want to operate this website?

Fox:

Yes, I can. I can -- I can suggest a number of reasons why there would be quite a large number of people that would be interested in ensuring that this website stays online.

First of all, a person like Desiree Capuano, who has spent so much time and effort manipulating and exploiting people and lying to them and going in the public news media and telling all of these lies to -- to gain people's support back in 2016 and then when it gets exposed that she had actually lied about all that stuff, a lot of those people were very upset with her because they got sucked in by her and by her lies and such.

Johnson:

Right.

Fox:

Now, on top of that, there's all of the people that she hurt directly when she, for example, abducted Gabriel [phonetic], our son, and ran off to Arizona with him, taking him from all the people that he considered his family.

And then, of course, there's a lot of people here in Canada, as you've been seeing recently, with these protests that have been going on, there's an increasing number of people, even here in Canada, that have been getting upset with what they consider government tyranny and government overreach and it's my understanding that over the past few years, there have been less and less and less people who have been supporting Desiree and there have been more and more people who have been supporting the website. So, it's my understanding that there are actually quite a lot of people that would like to see the website stay up and running.

Johnson:

And when you say --

Fox:

Oh, let me -- let me also point out though that since, I guess -- well, since my arrest in two thousand -- well, no, let's say from -- okay, with the new version of the website, it's been -- it seems to me that the focus is much more on exposing corruption and misconduct that's been going on in my cases and in the hundreds of other cases here in the Vancouver Courts and on the parts of these LSS lawyers and the prosecutors and such. It's my understanding that there's been very little, if any, new information about Capuano put on there.

Johnson:

But the body of information about Capuano, as you call her, is still there on the initial website.

Fox:

Most of the content that was on the original website, it's my understanding, is also on the current website.

Johnson:

Now, you're aware, of course, that you are subject to the terms of a probation order which requires you to voluntary steps to remove that website; correct?

Fox:

I am aware -- well, hang on, my -- my answer is going to be a little bit more involved. So, can I ask you first, are we finished with this order, can I put it aside?

Johnson:

Yes, you may.

Fox:

Okay. I am aware that there is a probation order that requires me essentially to do -- or sorry, it requires me to -- sorry, can I -- I want to make sure I'm precise in the wording of it. I have a copy of it. It's in my legal box. Unless you have a copy I can borrow?

Johnson:

What are you looking for?

Fox:

I copy of the --

Judge:

Perhaps we can just give him a copy of the information.

Fox:

-- the probation order.

Judge:

The --

Johnson:

I only have a -- I don't have a copy of the probation order.

Judge:

What about the information?

Johnson:

I have a copy of the information.

Judge:

Perhaps he can look at the information.

Fox:

Okay. I do have the probation order in my legal box, if you want to…

Johnson:

I don't want to go --

Judge:

Do you want to --

Johnson:

-- into your things.

Fox:

Right. It's just that it doesn't have --

Judge:

Okay.

Fox:

-- the full wording of --

Judge:

Why don't -- why don't you retrieve it?

Fox:

Okay.

Judge:

Just -- you can get it now.

Fox:

Okay.

Judge:

You were answering, you said it requires you to --

Fox:

Okay. Yes, I am aware that there is a probation order currently in effect that I am subject to which requires -- or required me, within 48 hours of my release from custody to [as read in]:

…take all necessary steps to ensure that any website…

And then it goes on to articulate a number of other artifacts, or types of content.

Johnson:

All right. And I'm suggesting to you --

Judge:

Well, let -- let him finish his answer.

Fox:

Wait, wait, let me -- this -- this last part is very important:

Including the website published under…

Et cetera, et cetera.

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

I'm aware of that.

Johnson:

All right. And I'm suggesting to you that the only step that you may or may not have taken is that you say that you sent an email; is that right?

Fox:

In the five days that I was out of custody, in August of 2021, that is the only step that I have taken toward causing that website that I have no ownership or control, or involvement in to be taken down, yes.

Johnson:

And you'd agree with me then that you -- because you're a technical person, you didn't take all necessary steps? That's -- there's much more that you could have done.

Fox:

It is my belief and opinion that I took all necessary steps because we're talking about something that I don't own or control. I would like to point out that there are other copies of the same website online. For example, on the website archive.org, there's something called the Wayback Machine which contains snapshots of websites from all over the internet at specific points in time. In that Wayback Machine on archive.org, there are snapshots of desireecapuano.com and of desicapuano.com. It's the exact same content --

Johnson:

That's not the question I'm asking you, Mr. Fox.

Fox:

Well, you're asking if I took --

Johnson:

The question I'm --

Fox:

-- all necessary steps.

Johnson:

-- I'm -- I'm suggesting to you --

Fox:

Yes.

Johnson:

-- that the only step you took was sending, perhaps --

Fox:

Uh-huh.

Johnson:

-- possibly, an email.

Fox:

That is -- I agree, that is the only step that I had taken in that five day period, yes.

Johnson:

And you'd agree with me that there were other steps that could have been taken?

Fox:

Two things. First, I don't agree with you. Second, please, advise me what other steps could I have taken? Oh, in fact, if you articulate some other steps that I could have taken, then if this situation ever arises again, perhaps I will take those additional steps.

Johnson:

Well, you've already indicated that, first of all, you've transferred this to your friend.

Fox:

Well --

Johnson:

Did you --

Fox:

-- okay. I've been phrasing it that way so far because it's much simpler than giving the full explanation that I have provided here today. And so, it's much simpler to simply say that I transferred ownership or control to my friend, but as -- as I've testified about today, technically, I didn't transfer ownership or control to her because the ownership and control never went from her to me to begin with.

Johnson:

You told Detective Dent and he testified about that here --

Fox:

Yes, I also told him --

Johnson:

-- that you --

Fox:

-- something about where the children's bodies were buried.

Johnson:

Could you allow me to answer the -- ask the question, please?

Fox:

Please do. Sorry.

Johnson:

You told Detective Dent, in respect of this website that you did it very deliberately to transfer to another person, so that you couldn't be charged.

Fox:

Yes, that would be a simple explanation for it, yes.

Johnson:

And you've also indicated, on more than one occasion, that once your probation is over, you will take back control of the website.

Fox:

Well, there's actually more to that that you seem to be ignoring. When I was speaking with Detective Tanino, I had said to her that my intention would be that once the probation is finished, first, I won't be in Canada anymore, so I won't be subject to Canadian laws and at that point, I would seek to take control of the website back, but even if I'm not able to do that, like, if the person who has control of the website at that time isn't willing to give it back to me for some reason, then at that time, it would be an easy enough matter to simply put up a new website with the same content.

Johnson:

Regardless, I'm suggesting that you agree that you've said on more than one occasion that once you're probation is over, you're taking back control of the website.

Fox:

I have stated that and that roughly would be my intention. I say roughly because whether it's putting up a new website, or whether it's taking the original website or this website back, regardless, I'll no longer be on probation and no longer be in Canada, therefore, there will be nothing illegal about it.

Johnson:

And just on a -- something that you just raised, do you agree with me that you've been refused entry to the United States because you're not an American citizen, but you're, in fact, a Canadian citizen? Do you agree with that?

Fox:

No, I have been -- I -- sorry, I'm trying to think because this is a very legal topic that we're bringing up here now. First, I object because it has no relevance to this matter. But I will answer the question. I was denied admission to the United States because there is a prior order of removal based on a conviction for a false claim of U.S. citizenship, which is contradicted by the fact that I have a U.S. birth certificate and the facts that IRCC and CBSA documents clearly state that I was born in the United States.

Johnson:

So, I take it you do agree that you were refused entry to the United States?

Fox:

I was denied admission, yes. I've also been denied admission to Canada.

Johnson:

Mr. Fox, I'm suggesting to you that it would be a very easy thing for you to do to remove this website, but you adamantly refuse to do so.

Fox:

I understand that that is a suggestion that you're making and you're entitled to make that or any other suggestion, but is that a question that you went me to respond to, or?

Johnson:

It's a question.

Fox:

Oh, because you said, I'm suggesting. So, if it's a question, what exactly is the question?

Judge:

He's made an assertion to you that it's very easy for you to remove the website, but you have adamantly refused to do so.

Fox:

Okay. If that is the case, I ask you, what do you believe that I could do to cause the website to cause --

Judge:

Okay. Well --

Fox:

-- the website to be taken down?

Judge:

-- I'm just going to stop you right there.

Fox:

Okay.

Judge:

You probably know this from previous proceedings. Your role right now is to answer questions, not --

Fox:

Correct.

Judge:

-- to ask them. So, when Constable Dent was in the stand, you were allowed to ask him questions in cross-examination. He wasn't allowed to question you.

Fox:

Okay.

Judge:

So, similarly now, it's the prosecutor's opportunity to challenge your testimony by asking you questions. You're not allowed to ask him questions.

Fox:

Okay. Then I would say that I disagree with your assertion. It would be a very easy thing to do if I had the user account name with the hosting provider and the password so I can log into the account and if I had the authority -- the legal authority of the owner of the account to be able to that. But without the username and the password, I cannot log into the account and make any changes to it.

Johnson:

And having transferred the account to your friend and indicated on more than one occasion that you intend to restart the website, I'm suggesting that's false, what you just said.

Fox:

I -- I disagree with that suggestion or assertion because it's based on the false premise that I transferred ownership or control to my friend.

Johnson:

And I'm suggesting, Mr. Fox, that in fact, when you were released from custody on August the 12th of 2021, that you made no efforts whatsoever to remove the website.

Fox:

I disagree.

I would like to point out that when Detective Dent was testifying, he very openly admitted that the VPD made absolutely no -- well, I can't say absolutely no, they made no reasonable effort to verify that email that I had sent and they made no effort to determine whether or not I have any involvement in the website.

Johnson:

Well, just on that point, you'll recall that Detective Tanino testified that she asked you about that email and you said you wouldn't give it to her.

Fox:

No, no, no, no. That's actually not correct. What she said was that -- or what happened was that Detective Roberts and then Tanino, had asked for my passwords for my phone and my laptop, so that they could go into them and get the information. That's what I refused to provide.

Johnson:

Right.

Fox:

Now, contrary to what you had said to the court at my 525 hearing, they had never given me the option of allowing them access to my laptop with me present to make sure that they only pull up that one email. What they were asking for was my -- was access -- unlimited access to my devices so that they could check it outside of my presence and that's what I refused.

Johnson:

Do you recall asking me to have Detective Dent bring your laptop here to court?

Fox:

Yes, I --

Johnson:

And --

Fox:

-- intended to use that in my cross-examination of him, but that never came up.

Johnson:

-- and do you recall indicating to me that if he did bring it, you might choose to show us this purported email?

Fox:

I do not recall saying that to you. I do not recall saying anything associating that email with my laptop being here at jail.

Johnson:

You would agree, I take it, that I did advise you that Detective Dent did bring your laptop?

Fox:

Yes.

Johnson:

And you agree, I take it, that you chose not to ask him anything about it, or look at it?

Fox:

Yes. And the reason I wanted the laptop here was so that I could show that the efforts that they made to find that email on the laptop were -- were so minimal because they looked only at this Windows partition, even though I don't use Windows and they completely ignored everything in the Linux partition. They didn't even -- apparently, didn't even know that there was a Linux partition on there.

Johnson:

It would have been simple, I'm suggesting, for you to ask Detective Dent to let you access your laptop and show us this purported email.

Fox:

Here in the courtroom?

Johnson:

Yeah.

Fox:

Well, it would need to connect to the -- to the internet and I suppose that would be a possibility.

Johnson:

And you didn't do that?

Fox:

I did not.

Johnson:

And I'm suggesting, Mr. Fox, that, in fact, you didn't send an email because if you did, you would have showed it to somebody.

Fox:

Would I have?

Johnson:

That's my suggestion to you.

Fox:

I believe that your suggestion is inaccurate.

Johnson:

Thank you, those are all the questions I have, Your Honour.

Judge:

Okay. Did you have anything in response to the questions that the prosecutor asked that you would like to tell me about?

Fox:

Sorry, let me take a quick look at my notes.

Judge:

Yes, of course.

EVIDENCE BY THE ACCUSED, CONTINUING:

Fox:

Well, I could say one -- one concern that I would have with if I had brought the laptop into the courtroom in order to pull up that particular email, once the laptop becomes evidence in the matter, that could potentially open the entire laptop up to being scrutinized or investigated and that's one thing that I certainly would want to avoid because there may be other unrelated information or artifacts on the laptop that I would not want to share with everybody, perhaps related to my birth identity or citizenship, or my cases against the B.C. Prosecution Service, et cetera, or CBSA.

And in fact, I do recall that Mr. Johnson had mentioned something along those lines, that if I did bring the laptop in, a situation like that could -- could arise.

Judge:

Okay. Anything else?

Fox:

There's nothing that I can think of, sorry.

Judge:

Okay. That's fine. You can go back to your seat then.

Fox:

Okay.

(WITNESS EXCUSED)

Judge:

And feel free to take that water with you, if you like.

Fox:

Thank you, yes. Oh --

Judge:

Yes.

Fox:

-- there is one thing. It's not part of the testimony, but I should mention sometimes people find my presentation a little off-putting and so, I assure everybody that it's not my intention to be assertive, or aggressive, or offensive to anybody, I think it's just because I'm an engineer and a scientist and so, I have a tendency to be very direct and say things in a less than tactful way.

Judge:

Okay. Well, if I think it's inappropriate, I'll let you know. But thank you for that warning.

So, now, at this point, I'm just -- I'm going to ask you, Mr. Fox, do you have any other evidence that you're going to be leading as part of your case? Like, are you calling any other witnesses?

Fox:

There will be no other witnesses, no. And I don't believe that I have any further evidence.

Judge:

Okay.

Fox:

Oh, well, I'm not sure if this is an appropriate time to bring this up, certainly it will be on appeal, but this -- one of the situations that has arisen this time, as has in all of the previous cases, is since I'm in custody and I have no resources on the outside to assist me with things, obviously, I have no access to physical evidence to support my claims. And so, it creates a situation where once I finally get released from custody and then I appeal, part of the basis of the appeal is newly discovered evidence that I didn't have access to at the time of the trial. And so, I fear that that's probably going to be the situation that's going to arise here as well, because there's, for example, the email that I had sent, which I don't have physical access to and that's why I'm not able to present it here. And I'm not about to give the Crown or the police access to my electronic devices to pull it up on their own.

Judge:

Okay. So, at this point then, there's nothing that you can think of that you want to put before the court as part of your own case?

Fox:

That is correct.

Judge:

All right. So, you've concluded your case and now we'll have submissions.

It's time for the morning break and if you would like to take a little bit longer morning break, in order to review your notes, I know you said you do have some notes for your final submission, but if you'd like to review those, just in terms of your recent testimony, if you want to add anything to them, just take the extra time that you need; okay?

Fox:

Okay. Thank you.

Judge:

So, Madam Registrar, I'll just ask, if you don't mind, if you could call me please, when the parties are ready; okay?

Oh, is this the only exhibit?

Clerk:

Yes.

Judge:

Okay. Sorry, do you have --

Johnson:

Do you need a copy of anything that --

Judge:

Do you have a copy of the letter?

Johnson:

Yes.

Judge:

Because I've written on -- I thought this was my copy, I'm sorry. So, that was the only exhibit, I think, was the letter; right?

Clerk:

Yes.

Judge:

Okay. The other ones are court decisions. So, we'll mark that one formally that Mr. Johnson just gave to you. Okay.

Sheriff:

Order in court.

(PROCEEDINGS ADJOURNED FOR NOON RECESS)

(PROCEEDINGS RECONVENED)

Judge:

Okay. Thank you.

Johnson:

Recalling the Fox matter, Your Honour.

Judge:

Yes, thank you.

Johnson:

Now, Mr. Fox testified, which means technically that he should argue first.

Judge:

Right.

Johnson:

I am prepared to go first if that's to his advantage, just out of --

Judge:

Okay.

Johnson:

-- courtesy, or he can proceed.

Judge:

Sure. So, typically, when a defendant testifies, or calls evidence in a -- in the defence case, they're obligated to argue first. But because you're not legally trained, Mr. Johnson has offered to make his argument first, so that you can understand what response -- what you're responding to. I'll still give you -- so then I would give Mr. Johnson an opportunity to reply to your argument and then I'll give you, although it's not usually the case, I'll give you an opportunity to surreply to him, so that you get the last say.

Fox:

Okay. Thank you. I would appreciate that.

I did want to ask though, while I was downstairs, an issue occurred to me that I had wanted to -- or there was something that I had wanted to state or a further clarification.

Judge:

Okay.

Fox:

Is it too late? Like, I don't need to be sworn in again.

Judge:

I don't have any problem with him adding to his evidence. Do you, Mr. Johnson?

Johnson:

No, I don't either, Your Honour.

Fox:

It just relates --

Judge:

Okay.

Fox:

-- to Mr. Johnson's question about me being denied to the U.S. and my admission that I had been denied admission.

Judge:

Yes.

Fox:

I want to point out that I was denied admission to the U.S. only two times and both times, it was because I told CBP or the border patrol that I had previously been deported from the U.S. to Canada. Now, there are other many, many, many times that I wasn't denied admission, where I just show my U.S. birth certificate and my driver's licence and I'm just waived through. So, it's only two times and it was because I brought it up the U.S. authorities, not because they looked into it.

Judge:

Okay.

Fox:

And so, that -- that was it.

Judge:

Okay. Good, thank you.

Fox:

Oh, I should also mention, as I had said, that I had also been denied admission to Canada back in the 1990s, two or three times I was denied admission from the U.S. into Canada. And that's all.

Judge:

Okay. In the 1990s?

Fox:

Yes.

Judge:

Okay. All right. Anything else you'd like to tell me?

Fox:

No, no, that's all, thank you.

Judge:

Anything arising from that, Mr. Johnson?

Johnson:

No, I can advise Your Honour I don't intend to make any submissions related to that, thank you.

Judge:

Okay. All right. So, then I will ask, Mr. Johnson, if you'll start your submissions first.

SUBMISSIONS FOR CROWN BY CNSL C. JOHNSON:

Johnson:

Thank you, Your Honour.

Mr. Fox has agreed that he's bound by a probation order and the allegation here is that he failed to comply with that order, specifically, within 48 hours of his release from custody, he was required to take all necessary steps to ensure that any website, et cetera, was removed.

And I say that the Crown's case establishes that Mr. Fox made no -- or minimal efforts at best -- to comply with that order. Mr. Fox says that he sent an email. He's given no further information about that email. He declined the opportunity to provide a copy of that email and so, it's the Crown's position that -- firstly, I say that email, on the evidence, is unlikely to exist, but even if it did exist, that falls far short of complying with the order and the positive steps that Mr. Fox is required to make.

Mr. Fox's explanation today, as it has been in the past, in a number of occasions, is that he's transferred ownership of this website to some other person, although today he did give us a name and --

Judge:

I don't think it's fair to say today that he's saying he transferred ownership. He's saying that it was simpler to say that previously and today he said he didn't transfer ownership because he never had ownership. Ms. Munoz launched the new website. He had nothing to do with it. That -- that's what I understood his evidence today to be.

Johnson:

I think that's -- that's probably true.

Judge:

Okay.

Johnson:

I don't say that that is true, but that's true that that's --

Judge:

No, no, I hear you.

Johnson:

-- his evidence.

Judge:

I just wanted to --

Johnson:

And --

Judge:

-- fairly summarize his evidence today.

Johnson:

Yes, I appreciate that, Your Honour.

And the Crown says that that flies in the face of Mr. Fox's other evidence, which is exhibited, most particularly in this trial, in the letter that he wrote that's Exhibit 1 and I gather his evidence about that is that he claimed that he published the new website for some ulterior purpose, but nevertheless, there is evidence before this court that he is, in fact, the person who published the website, the Crown says.

In addition, he made no bones of the fact, on the evidence here, that he advised the police that he fully intended to take control of the website once again, once his probation has expired. And I say, from that, the court can infer, as other courts have, that Mr. Fox is able to have some measure of control over this website.

The Crown says that it's an outlandish explanation at best that the website may have been taken down briefly between the 12th and the 15th and that there's -- that contradicts Mr. Fox's admissions, firstly, and secondly, the evidence of Catherine Meiklejohn. And in addition to that, there's no evidence before you on which you could conclude, in my submission, that the website would have been removed as a result of anything that Mr. Fox did. The website was clearly in existence both during the 48 hours that he was required to take all reasonable steps to remove it and so --

Judge:

I'm -- I'm not sure that it really has much relevance because he doesn't claim to have taken it down.

Johnson:

That's -- that's correct.

Judge:

So, he could only fulfill his probation order if he took steps to ensure that it was not accessible. He says he didn't take those steps because he didn't feel he was obligated to do it.

Johnson:

I don't disagree with that.

Judge:

Okay.

Johnson:

In any event, the Crown says that while they're -- I'm not in a position to prove whether Mr. Fox physically accessed this website, or did access it in any way, shape or form, the clear inference, on the evidence, given Mr. Fox's evidence and in particular, his statements in the past that he will never take this website down, coupled with his statements that as soon as his probation is over, he's going to reassume control, the clear inference of that is that Mr. Fox does and is able to exercise some measure of control over the website

Johnson's argument is fundamentally flawed. My statements that I will never take down a website that I have no ownership, control or influence over is indicative of absolutely nothing. The fact that I don't own it and don't have administrative access to it preclude me from being able to take it down.

And, my statements about taking back the website after the probation ends are also indicative of nothing because all that means is that as long as I am on probation I do not and will not own or control the website. It's no different than if I have a probation condition which prohibits me from possessing firearms and I say, while on probation, that as soon as the order expires I'm going to go buy more firearms. It doesn't mean that during the period of probation I have any control over the firearm I am going to buy after the probation expires.

and once one comes to that conclusion, the Crown says it's an inexorable conclusion that Mr. Fox failed to comply by taking any -- or at least, at the very most, minimal steps to comply with the probation order and as a result, the Crown says that it's been proven well beyond a reasonable doubt that Mr. Fox was in breach of that probation order.

Judge:

Thank you, Mr. Johnson.

Johnson:

Those are my submissions. And I -- I do -- I do point out that Mr. Fox has made this same argument that he's making before Your Honour to other courts and you have copies of decisions where the same conclusion that I'm urging upon you has been adopted by the courts.

Thank you.

Judge:

Thank you.

Did you want a little bit of time to respond to Mr. Johnson, or are you prepared to do so now?

Fox:

I'm -- I'm prepared, thank you.

Judge:

Okay.

SUBMISSIONS BY THE ACCUSED:

Fox:

First, I want to respond to a few of the points that Mr. Johnson had just made.

With respect to the -- to my -- my statements that when the probation conditions expire I intend to regain control or take over control of the website again, I'm pretty sure that I was pretty clear when I testified that what I had stated to the police was either that, or, if I'm not able to regain control of that website, to start a new website.

So, my statements to the police at that time provide no real indication, in my opinion, that I have any -- any control or ability to gain control of that particular website. What I had said to the police was that if I can't get control of that website back, I could start a new one.

And I would like to point out that even though the argument that I'm making with respect to ownership of the website or with respect to whether or not the website had actually come down in that period of time, I have made those arguments in the previous matters, but this is the first time that I've provided testimony in the matter. And part of the reason that the argument may not have had much weight in the previous cases was because there was no actual evidence, there was no testimony to support them. It was simply the arguments.

Sorry, [indiscernible] the probation order.

I should also clarify, because it did come up in Mr. Johnson's submissions a moment ago, what I had stated today is consistent with what I had stated previously, in that Ms. Munoz was the person who might have overseen putting the website back online, but she was not the person who did it herself. And so, when I state -- when I've stated in my statements to the police before that I have no knowledge of who's actually running the website, that is consistent with what I said today. Ms. Munoz was not the one that had done it. Someone else that she knew about at the time had done and I explicitly requested that she not inform me of who that person was.

Fox:

So, let's see, it -- it's my understanding, based on the specific wording in condition 6 of the probation order, which is the condition that I'm accused of breaching, that if I -- if I took down the website -- and this is, of course, assuming that I had the ability to take down the website, this is -- for the sake of argument, that if I had control and ownership of the website, then if I took down the website within 48 hours of my release, such that all of the content on the website ceased to be publicly available on the internet, at that exact moment in time, I would have fulfilled condition 6.

The content that's stated in the condition and there's quite a number of items that are listed there, but all of that content would, as of that moment, once the website is taken down, would no longer be available via the internet or any other means. And it's my understanding of condition 6 that there's no wording in that condition which state -- which states that the content must remain no longer available for any duration or period of time.

Judge:

Well, isn't that the very meaning of no longer?

Fox:

I'm sorry?

Judge:

Isn't that the very meaning of no longer? If something is no longer, it existed in the past and does not exist now. If I no longer own my car --

Fox:

Right.

Judge:

-- I owned it in the past, but I don't own it now. It's a continuing --

Fox:

But --

Judge:

-- it's a continuing state.

Fox:

-- but if -- if you're -- if a person is ordered to engage in specific conduct to cause something to no longer be available, then once they achieve that point where it's no longer available, it's my understanding that they have -- they have complied with that -- with that content or with that instruction. And given that condition 5 explicitly prohibits the publishing or the dissemination of any information, it seems to me that the intention would be for condition 6 to require the website to be taken offline and then condition 5 would prohibit putting it back online.

Judge:

Well, then it would have said, you must take it offline. Not that you must ensure that it no longer is available.

Fox:

Hmm. See, if -- if condition 6 had said no longer available and remain no longer available, or if it had said no longer available and remain as such, then that's how I would have understood that to mean. Otherwise, it seems to me that the two conditions, there's some overlap and they're kind of redundant, like. But anyway, so that would be my understanding of it.

Judge:

Okay.

Fox:

And so, even -- even if I had had the ability to take the website down, at the time, when I was released from custody, it would have been my understanding that condition 6 was telling me to take the website down and once I had done so, then that's it, the condition had been complied with.

And also, with respect to Ms. Meiklejohn's testimony about the website being online at the times when she had checked it, there was nothing in the probation condition that required me to notify any authorities, be it the VPD or the Crown, when the website was -- had actually been taken down.

Judge:

You don't have to take it down. The part I'm having difficulty with, is that you seem to think that the probation condition requires you to take it down and that once you've taken it down, you've satisfied your obligation. What it required you to do was to ensure that it was no longer available to anyone.

Fox:

In perpetuity? I mean, because --

Judge:

As long as the probation order --

Fox:

-- that raises the --

Judge:

-- is in existence.

Fox:

Well, if that's the case, then there's a gross misunderstanding on my part and I would have -- I would have hoped that the author of the condition would have been a little more clear on that.

If -- if it is the court's understanding that are no longer available is to be interpreted in that way, that it is to become no longer available and remain no longer available as long as the probation order is in place, then there's very little that I can say further on that matter.

Now, when Detective Dent was testifying, he stated that he believes that I'm still involved with the website. However, he admitted that that belief is not based on any actual evidence, but rather just his inferences from vague and indirect statements he claims that I had made when he interviewed me in 2020 -- or in September 2020.

And I would like to point out that it seems to be the Crown's position that I could have done much more to cause the website to be taken down, beyond simply sending an email to the email address that's on the website. And as I said, while I was testifying, I'm certainly open to any suggestions that the Crown might have about what additional steps they think that I could have taken. If they believe there's more I could have done, it would have been nice for them to provide me with that guidance, or that suggestion prior to my release from custody back in August.

I suppose then that that is all that I can say on that matter.

Judge:

Okay.

Fox:

Thank you.

Judge:

You have no other submissions?

Fox:

Well, I mean, I -- I could say that I do not believe that even the Crown believes that there is any sincerity at all to these claims that this website is causing any kind of harm to Ms. Capuano and that the Crown's real objective here is to get the information related to the allegations of the corruption and misconduct that's been going on in my -- my cases removed from the internet and even Mr. Johnson himself admitted to that in a prior matter, that the reason I'm being prosecuted is because this disclosure material and other evidence keeps ending up on the internet, not because of any perceived harm to Ms. Capuano.

And in case Mr. Johnson is wondering when it was that I claimed that he said that, it was February 2nd, 2021, before Judge Rideout.

And that would be all I would have then.

Judge:

Okay. Thank you.

Fox:

Thank you.

Judge:

What I'd like to do, it's about 10 minutes, or eight minutes before 12:00, I'd like to take the noon hour break. I think I'll be in a position to give my reasons this afternoon but I'd like to come back at one o'clock. I hope I'm ready at one o'clock. Are you able at one o'clock?

Johnson:

I am, yes.

Judge:

Are we able to do that, Madam Registrar?

So, let's come back at one o'clock then. If I'm -- if I'm not quite ready, I'll let Madam Registrar know.

Do you want to call me about five to 1:00?

Clerk:

Yes, Your Honour.

Judge:

Okay. So, we're going to come back at one o'clock. I hope to be ready by then because I know that this has been ongoing for you, Mr. Fox, for a long time and I've been able to give it considerable thought over the last few days, so I'm hopeful to be ready at one o'clock.

Fox:

Thank you.

Judge:

Okay? Thank you.

Sheriff:

Order in court.

(PROCEEDINGS ADJOURNED FOR NOON RECESS)

(PROCEEDINGS RECONVENED)

Johnson:

Chris Johnson, Your Honour, appearing for the Provincial Crown and recalling the Fox matter.

Judge:

Yes, thank you.

Mr. Fox, did you have anything else you wanted to say before I give my reasons?

Fox:

I'm -- actually, there was one issue that occurred to me while I was downstairs.

Judge:

Yes?

Fox:

I would like to request a publication ban on Ms. Munoz's name. Do you want me to provide a reason, or?

Judge:

Yes.

Fox:

There's a certain individual that has a history of violent, aggressive and psychologically unstable behaviour and I'm concerned that if this ends up in the news, which I'm sure it will be, that if Capuano -- that's who I'm referring to -- if she finds out that Ms. Munoz had some involvement in this, then I'm concerned that that may cause problems for Ms. Munoz. And Ms. Capuano does have a history of doing things deliberately to try to cause for Ms. Munoz.

Mr. Johnson?

Johnson:

I'll say this, I don't object to his request. I don't agree with the reasoning for it at all, but I'm also going to ask for a publication ban on the name Desiree Capuano or capuano.com because it's clear --

Judge:

Okay.

Johnson:

-- Mr. Fox has a history of publishing.

Judge:

So, there will be a publication -- oh, sorry?

Fox:

I do have a response to Mr. Johnson's request. It should be noted that in the beginning of this, back in 2016 and '17, there was originally a publication ban on Ms. Capuano's identity, but then at the start of the trial, she requested Crown counsel request that that publication ban be removed because the news media wanted to be able to interview her and such and so, she couldn't do that because of the publication ban.

Based on that, I don't believe that --

Johnson:

I don't have any knowledge of that, but --

Judge:

Well, I don't have any information that that --

Fox:

Oh.

Judge:

-- continues to be her position.

Fox:

It's -- it's in the transcripts from the trial.

Judge:

So, I am inclined to give a publication order for both of the individuals who have been named here. And what is the section, Mr. Johnson?

Johnson:

Oh, I apologize, Your Honour --

Judge:

Maybe you can look for it --

Johnson:

I can look for it.

Judge:

-- if you don't mind.

So, Madam Registrar, there will be a publication order with respect to the name Desiree Capuano and to the websites www.desireecapuano and www.desicapuano, and also to the name Munoz --

Fox:

Oh, Ms. Munoz?

Judge:

-- Ms. Munoz. Her first name is Liz; is that right?

Fox:

That's correct. L-i-z.

Judge:

To Liz Munoz and I will provide that -- Mr. Johnson is going to provide that section number to you.

All right. First of all, I want to thank both of you for your submissions. I have had some time to think about this matter because we started the trial two days ago and so, I was aware of all of the evidence and the expected defence of Mr. Fox as I'd been through his cross-examination and some of his remarks in court and so, I am in a position today to give my reasons.

My reasons are as follows.

[REASONS FOR JUDGMENT]

Judge:

Thank you. Are you ready to deal with sentencing, Mr. Johnson?

Johnson:

Yes, I am.

Judge:

Are you ready to deal with sentencing, Mr. Fox?

Fox:

Sure, yes.

Judge:

Okay.

SUBMISSIONS ON SENTENCE FOR CROWN BY CNSL C. JOHNSON:

Johnson:

I can be very brief, Your Honour, as you have the record before you, I believe.

Judge:

I do.

Johnson:

Mr. Fox has previously been convicted of this exact same offence and I think I indicated on a previous appearance that upon conviction, which has now just occurred, the Crown position is that he should serve a sentence of 12 months' imprisonment.

The Crown is also seeking an additional term of two years' probation with the same conditions that were granted by Judge Rideout, with some variation and --

Judge:

Okay. Now, I'm just curious, 12 months, I thought that was the Crown's position if he were to enter a guilty plea?

Johnson:

I actually said eight months in an effort to try to resolve this matter earlier.

Judge:

I see. And now you're saying 12 months?

Johnson:

Yes. And --

Judge:

I note this last -- his last sentence was for 16 months and 15 days.

Johnson:

Sentencing is always in Your Honour's purview and I've given a position --

Judge:

Right.

Johnson:

-- to Mr. Fox previously.

Judge:

Okay.

Johnson:

But I can't disagree with what you just said.

And a 12-month jail sentence would -- he's been in custody since August the 17th and so, I'll just do the math.

Judge:

Yes.

Johnson:

He has served, as of today, six months and eight days, which, at 1.5 is nine months, 12 days and deducting that from 12 months, would be a remaining time served of two months and 18 days.

Judge:

Right.

Johnson:

And I should say, with respect to the terms of probation --

Judge:

I mean, is there a reason you're seeking a two-year probation as opposed to a three-year probation?

Johnson:

I'll say that I was mistakenly thinking that two years is the maximum and I'm happy to concede three years' probation.

Judge:

Okay. The terms you're seeking?

Johnson:

Would be the number --

Judge:

Just -- if I might just stop for a moment, I'm just going to look at the probation order from Judge Rideout --

Johnson:

Yes.

Judge:

-- because I expect you may be mirroring it as you indicated. Okay. Go ahead.

Johnson:

So, number -- condition 1 would be the same: Keep the peace and be of good behaviour.

Condition --

Judge:

Right.

Johnson:

-- 2: Appear before the court when required to do so by the court.

And then I'd ask Your Honour to consider a reporting condition that you -- he report to a probation officer at 275 East Cordova within 72 hours of your release and thereafter as and when directed.

Judge:

Is there a reason for the reporting condition?

Johnson:

Yes, because I'm going to be suggesting another condition which would require him to provide information to a probation officer.

Judge:

Okay.

Johnson:

And nextly [sic], the same condition number 4, although, the name James Pendleton didn't come up in this trial whatsoever, so, I'm going to seek that same condition with the name of Desiree Capuano, but not Mr. Pendleton.

Judge:

Okay. As well as her friends, relatives, employers, or co-workers?

Johnson:

Yes.

Judge:

Okay.

Johnson:

And similarly, the next condition in Judge Rideout's order, I would seek the exact same condition --

Judge:

All right.

Johnson:

-- less the name of Mr. Pendleton.

Judge:

Okay.

Johnson:

And similarly, condition 6, I would seek the exact same condition.

Judge:

Mm-hmm.

Johnson:

And then I would ask Your Honour to consider an additional condition -- and I should say, Your Honour, I -- I have no way of determining when, exactly, Mr. Fox would get released from custody and so, I would be content to make that 72 hours, as opposed to 48 hours.

And then I'm going to ask Your Honour to consider this condition, which is: You are to report to your probation officer and advise, within 96 hours of your release from custody, as to exactly which steps you have taken to comply with the previous condition.

Judge:

Sorry, you are to, upon your release, report to your probation officer and advise, within 96 hours, the exact steps you took to comply with condition formerly number 6?

Johnson:

Yes, please, Your Honour.

Denhoff asks Johnson why he would request and she would impose a condition requiring me to take down the website within 72 of my release, rather than within 48 hours of right now.

Denhoff claims to not be aware that inmates at NFPC and FRCC have absolutely no access to the internet. She also, apparently, doesn't realize that a probation order doesn't come into effect until the accused party is released from custody at the completion of their sentence.

There's some back and forth between Denhoff and Johnson on this and eventually I get fed up with the stupidity and tell Denhoff the reasons she must impose the conditions for after I am released is because there is no internet access for inmate, at all, at NFPC and FRCC, and the probation order won't come into effect until I'm released from custody.

Judge:

Is there a reason why he can't comply with that while he's in custody? Does he not have access to the internet while in custody?

Johnson:

He does not have access to the internet while in custody.

Judge:

No -- no inmates do, or just him?

Johnson:

I know that he specifically doesn't have and I don't believe any inmates do, although I stand to be corrected.

Judge:

Because is Judge Holmes probation order still in effect? I think its expired.

Johnson:

I think it's expired.

Judge:

And I don't -- is there another probation order that prohibits you, sir, from having access to the internet?

Fox:

No, that was the only one.

Judge:

What -- why -- why wouldn't -- why am I asking for him to remove the website within 72 hours of his release? Why wouldn't I ask him to do it within 48 hours of now, if he has access to the internet?

Johnson:

I don't believe he does have access to the internet.

Fox:

I -- I might be able to answer that. The first is at North Fraser and at Fraser Regional, no inmates have any access to the internet. It's strictly forbidden.

Judge:

Oh, okay.

Fox:

The other reason would be because a probation order doesn't take effect until the period of incarceration is completed.

Judge:

Right.

Fox:

And so, the probation -- this probation order wouldn't actually take effect until I get released from custody.

Judge:

And so, you're not able to receive or send emails at all?

Fox:

Correct. Which is --

Judge:

No inmates -- yes?

Fox:

-- which is why I have not been able to get the email. Sorry, I'm -- it's --

Judge:

Okay. So --

Fox:

-- it's a little frustrating, this whole process.

Judge:

All right. Okay. Just was curious about that. I wasn't aware that you didn't have access to the internet.

Denhoff asks me "So, you're not able to receive or send emails at all"? I tell her that is correct, and that is why I've not been able to access or forward the email I sent to editor@desicapuano.com. She says "All right. Okay. Just was curious about that. I wasn't aware that you didn't have access to the internet."

This entire exchange is mind blowing! As soon as Denhoff realized that she found me guilty based on those false beliefs/assumptions she had about me having access to the internet she should have stopped and reconsidered her verdict. But she did not - she just plowed forward.

It should also be clarified, when I said "it's a little frustrating…", what I meant was dealing with the endless, mind numbing stupidity that seems to permeate the entire judicial process!

Fox:

Okay.

Judge:

Okay. Sorry -- I'm sorry to have interrupted you, Mr. Johnson, was there anything else?

Johnson:

No, that -- that was the end of what I was going to say, Your Honour.

Judge:

Okay. Mr. Fox --

Johnson:

And -- and I should say, Your Honour, that I'm seeking additional probation because of the main concern that I have with respect to this matter is that Mr. Fox remove the website.

Judge:

Sorry, you're seeking additional probation because?

Johnson:

The reason I'm seeking a longer term of probation, I suppose one could look at it as I'm not seeking the maximum imprisonment, but I am seeking the maximum of probation because that is --

Judge:

Of three years.

Johnson:

Yes.

Judge:

All right. Mr. Fox?

SUBMISSIONS ON SENTENCE BY THE ACCUSED:

Fox:

With respect to the proposed probation order, I do have some concerns about that. The fact remains that I have no status in Canada and I'm not allowed to work in Canada or receive any kind of government benefit. This was an issue that kept coming up on the previous order and I applied a number of times to have the condition requiring me to remain in British Columbia and to report removed so that I could go back to the U.S. and -- and work and live.

Part of the reason that I've not cared about staying in jail for the past few years is because if I'm stuck in Canada and I can't work or support myself, then being in jail is not that much more of a severe punishment.

So, I have a concern that if we impose another probation order for three years that requires me to report on a regular basis, I'm -- I'm stuck in that same situation now, where I'm stuck in a country where I'm not legally authorized to work and technically, I can't apply for any kind of visa and I wouldn't want to anyway, but I wouldn't -- I wouldn't qualify for it because I've convicted of an indictable offence.

Judge:

Well, that was why I asked Mr. Johnson about his reasons for asking for a reporting condition and as I understand it, it's really for the purpose of you advising the probation officer of all the steps you've taken to comply --

Fox:

Mm-hmm.

Judge:

-- with the condition that we've been talking about, in terms of removing -- ensuring that the website is not longer available and so, it would only be for that purpose and it wouldn't be an ongoing requirement to report.

That wasn't your intention that there be an ongoing --

Johnson:

No, that's correct.

Judge:

-- requirement? Okay.

Fox:

Okay. Because it was my understanding what he meant was for it to be ongoing because he had stated that I would report first upon my release and then as directed.

Judge:

Well, you would report upon your release and as directed, but then there would be a provision that your reporting was only for the purpose of advising your probation officer within 96 hours of all of the exact steps you have taken to comply with the condition in the probation order which requires you to ensure that the website is not available.

Contrary to his earlier request (p142l45-p143l2), Johnson now claims he was not asking for an ongoing reporting requirement.

I point out that Johnson had, in fact, requested I report upon my release and then as directed, which would mean after that first time reporting I would have to report again as directed by the probation officer.

Denhoff then misrepresented what Johnson had said, saying I would report upon my release and as directed, which would mean when I go to report the one time upon my release I would do so as directed by the probation officer.

But what Johnson had actually said was that I be required to report once upon my release "and thereafter as and when directed." He was unquestionably requesting ongoing reporting at the discretion of the probation office.

Fox:

Okay. So, can I take that to mean then that I would only have to report within a short period after my release and then beyond that, I wouldn't have to continue reporting?

Judge:

You'd report twice. You'd report first of all within 48 hours of release and then --

Fox:

Right.

Judge:

-- and then you would report within 96 hours to advise. Now, if, in that first 48 hours, you're able to tell the probation officer on your first meeting what steps -- exact steps you have taken to ensure that the website is not available, then you wouldn't have to report again.

Fox:

Right.

Judge:

So, probably what I would do is meet in the middle and say within 72 hours and that would give you sufficient time to deal with the website and you could report it all at the same time.

Fox:

Okay. And I'm wondering though what's going to happen upon my release when the website doesn't come down. Do we get to start this whole process over again? I just --

Judge:

Well, you're going to explain to the -- I have concluded that --

Fox:

Uh-huh.

Judge:

-- you have the ability to --

Fox:

Yes, I understand that.

Judge:

-- to ensure that it's not available.

Fox:

Right.

Judge:

Mr. Johnson is asking that I make an order that you take those same steps within a certain period after you're released from custody and --

Fox:

Mm-hmm.

Judge:

-- that you report to your probation officer about those steps that you've taken.

Fox:

I -- I understand all of that, but like, whether the Crown and the court accept it as being truthful or not, the simple fact is I don't have access or control over the website. The website is not going to come down.

Judge:

Okay. Well, you --

Fox:

If it means I'm going to spend the rest of my life in jail in Canada, so be it, but --

Judge:

-- you've heard my reasons --

Fox:

Right.

Judge:

-- about the steps you could take to have -- to ensure that that website is not available. I'll leave it to you. You're a very intelligent man.

Fox:

Mm-hmm.

Judge:

You are technically knowledgeable about the internet and so, I'm going to leave it to you, but I made some suggestions in my reasons that you can consider; okay?

Fox:

Okay. Now, another concern, or another thing I would like to bring up about the probation order, once I leave Canada and return to the United States, I understand that I would still be subject to the probation order, but is it possible to put -- to put something in there stating that once I am no longer in Canada, being that I'm not a Canadian citizen and I have no intention to ever come back to Canada, that at that point, it will no longer be enforced, or it --

Judge:

The intent --

Fox:

-- won't happen?

Judge:

-- here is to ensure --

Fox:

Mm-hmm.

Judge:

-- that you don't have any contact with Ms. Capuano during your probation term and that you not publish or allow any currently published websites or other information to continue to be available. That's the intent during the duration of the probation order.

You're going to have to seek legal advice about the impact of this probation order on you if you don't reside in Canada. I leave that up to you. I'm sorry, I can't give you legal advice.

Fox:

Okay. Well, clearly --

Judge:

But the intent of this probation order --

Fox:

Mm-hmm.

Judge:

-- is, for the longest period possible --

Fox:

Yes.

Judge:

-- to prevent you from the things that are stated in the -- in the preceding probation orders, being in contact with Ms. Capuano, publishing anything about Ms. Capuano, allowing any websites to be available.

Fox:

I -- I understand and I respect that and with all due respect to the court and to the Crown, I've been on probation under these same conditions for over three years now and it has had zero impact on anything. I don't know why the Crown would all of a sudden now think that imposing a new probation order with the same conditions is suddenly going to change anything. I mean --

Judge:

Well, I -- I can tell you what will happen is your period of incarceration --

Fox:

Mm-hmm.

Judge:

-- will continue to increase.

Fox:

If I'm in Canada, yes. But once I go back to the U.S., I mean, I don't think they're going to extradite me back to Canada for a breach again.

Judge:

I can't comment on that, sir.

I argue that I oppose another probation order, that I believe it will be futile and a waste of everybody's time and efforts. I argue in favor of a sentence of time served, and that a longer sentence will not have any deterrent effect, it will not make any difference whatsoever.

Denhoff asks why I say that. I respond, it's not going to change my behavior; I'm not going to do anything differently. I don't own or control the website; I have no influence over the website; I have no ability to cause the website to be shut down. So imposing punishments and probation orders on me is going to have absolutely zero effect on the website. Sending me to prison for four years and imposing a three year probation order is not going to make a third party in a foreign country, outside the jurisdiction of the Canadian justice system, take down a website that doesn't cost him anything and doesn't take any effort to keep online.

Denhoff repeats that she believes that I do have control over the website and that I have breached the probation order. Of course, the Crown has provided absolutely no evidence to support that belief.

Fox:

Okay. So, I oppose being in a position of another probation order. I think it's going to be futile and a waste of everybody's time and efforts, but -- and as for the sentence, I would argue in favour of time served. A longer sentence is not going to have any deterrent effect. It's not going to make any difference whatsoever, to be honest.

Judge:

Why do you say that?

Fox:

It's -- it's not going to change my behaviour. It's not going to make me do anything differently and I still insist that I don't have the capability to take the website down. So, leaving me in jail for another three months, or another year and a half, or even if you sentence me to four years, the statutory maximum for a breach, it's not going to cause the website to come down. Like, nothing is going to change. I mean, I understand that, okay, it'll get me off the street, so maybe I won't be out offending, but if I am out, I wouldn't be offending anyway. Like, the website will still be there, regardless of if I'm in jail, or if I'm outside and people are still going to be making updates to the website regardless.

Judge:

You remember -- remember, Mr. Fox, I'm sentencing you today --

Fox:

Mm-hmm.

Judge:

-- because I am of the opinion --

Fox:

Mm-hmm.

Judge:

-- that you do have control over that website --

And this is what "justice" comes down to in Canada!

It's irrelevant that there was absolutely no evidence that I had any involvement with, or influence over the website following my release from custody. It's irrelevant that Det. Dent admitted he had absolutely no evidence that I had any involvement or influence, and that he did absolutely nothing to try to determine whether I had any association with the website. And, it is completely irrelevant that it would have been physically impossible for me to have had any involvement in putting the website online or maintaining the website - because I was in custody during that time and had no access to the internet!

Even in the absence of any of that evidence, Denhoff is "of the opinion that I do have control over the website" and THAT is all it takes to convict and imprison a person in Canada!

Fox:

Yes.

Judge:

-- and that you are breaching, and that you have breached a probation order by not ensuring that it's no longer available.

Fox:

Right.

Judge:

That's the basis upon which you're being sentenced.

Fox:

Okay. So, I would argue in favour of time served, plus a day and I guess that's all the submissions that I would have.

Judge:

Okay. Thank you.

Well, I can tell you that I had a far more severe penal sentence in mind, given that this is the third breach, but Mr. Johnson has asked for 12 months. He is very experienced and senior counsel and he has explained his rationale for doing that. He wants a longer probation order, which I agree is prudent given the societal ill that we are trying to address.

So, my -- yes?

Fox:

I'm -- I'm sorry --

Judge:

No, no, that is fine.

Fox:

-- could I suggest, you said that you had a much stricter sentence in mind.

Judge:

Yes.

Fox:

Were you thinking of more than two years, perhaps?

Judge:

I was thinking of 24 months and a three year probation order.

Fox:

I would certainly be agreeable to two years, yes, because if it's over two years, then you can't impose probation; correct?

Judge:

Right. So, it would be 24 months, less a day and a three-month -- and a --

Fox:

Okay.

Judge:

-- three-year probation. Is that what you are asking for?

Fox:

No, I would ask for two years, so it would be over the two years less a day. Okay.

Judge:

All right.

[REASONS FOR SENTENCE]

Judge:

You do not have any submissions on that, Mr. Johnson?

Johnson:

No, I don't.

Judge:

Okay. Anything else, Mr. Fox?

Fox:

Well, I'm a little bit concerned that we're going to be right back in the same situation in two months and 18 days, or whatever it was. I really wish we could just kind of assume the website will be there forever and just give me a huge, long sentence right now, but that's not an option, is it?

Judge:

It is not.

Fox:

All right. So, then I guess we'll just finish up this sentence and then I will leave Canada and you all can do whatever you want with this.

Judge:

Okay. Thank you all.

Johnson:

Thank you, Your Honour.

Judge:

We'll adjourn now, thank you, Madam Registrar.

Clerk:

Your Honour, if I can get the ban?

Johnson:

Oh, sorry, I do have that.

Judge:

Yes.

Johnson:

Section 486.5(a).

Fox:

Could I have a word with Mr. Johnson though, before I go downstairs?

Sheriff:

Sure.

Fox:

Okay.

Johnson:

Go ahead, Mr. Fox.

Clerk:

[Indiscernible] Mr. Johnson [inaudible].

Johnson:

Yes.

Fox:

These are yours. You can have those…

(PROCEEDINGS CONCLUDED)

Transcriber: P. Moore