Reasons for Judgment (2022-02-25) - Canada vs Patrick Fox

[1]

THE COURT: Mr. Fox is charged with a breach of probation on or about August 15, 2021. Mr. Fox admitted at trial that on August 12, 13, 14, 15 and 16, 2021, he was bound by a probation order made by Judge Rideout on April 12, 2021 which included the following condition number 6:

Within 48 hours of your release from custody, you shall take all necessary steps to ensure that any website, social media page, or any other publication which you have authored, created, maintained or contributed to, which contains any information, statements, comments, videos, pictures which refer to or depict by name or description Desiree Capuano, or any of her friends, relatives, employers or co-workers, including the websites published under the domain www.desireecapuano.com and www.desicapuano.com are no longer available via the internet or any other means.

[2]

The allegation is that contrary to s. 733.1 of the Criminal Code Mr. Fox breached that probation order made by Judge Rideout on April 12, 2021 by failing to comply with condition 6 on or about August 15, 2021.

[3]

Mr. Fox did not dispute at trial that on August 12, 13, 14, 15 and 16, 2021, the website www.desicapuano.com was operational and could be viewed by anyone capable of accessing the internet.

[4]

The Crown called a civilian analyst with the Vancouver Police Department who testified that she checked the website www.desicapuano.com on August 12, 13, 14 and 15, 2021 and it was accessible and active on each of those days. On August 15, 2021, the analyst accessed the website at 6:10 p.m. and it was still active and accessible, which was more than 48 hours after Mr. Fox's release from custody.

[5]

Constable Tanino testified that she interviewed Mr. Fox on August 17, 2021 for an hour and 10 minutes regarding his involvement with the website. Mr. Fox admitted at trial that the statement was voluntary.

[6]

According to Constable Tanino, Mr. Fox told her, on August 17, 2021, that prior to the probation order taking effect, he transferred ownership and control of the website www.desicapuano.com to a third party. He indicated that he could not identify the third party and he offered no proof of the transfer of the ownership of the website. Mr. Fox further stated that he transferred ownership and control of the website so that he would not be obligated to take it down in accordance with the probation order. Mr. Fox also told Constable Tanino that when his probation term ended, he would take back control of the website.

[7]

When Mr. Fox was asked if he had access to the website, he stated that he would not answer the question. He also stated that within 48 hours of his release from custody, he had sent an email to the editor of the website, as listed on the website, and asked for the website to be taken down. Although Mr. Fox said he would provide a copy of that email at a later date, he did not ever do so, even though his laptop was made available in the courtroom during the trial and he could have accessed the email. Mr. Fox claims that he did not access the email in the courtroom because he did not want the police to have access to all of his computer content in the courtroom. However, by that time, the police had already searched the computer. Furthermore, Mr. Fox could have asked for the court permission to access the email on his laptop himself in order to show it to the court without the police seeing the other content.

But this still would have resulted in the laptop being brought into the trial as evidence, which means the Crown would have the right to challenge it, and that would mean the court could order me to provide the encryption passwords, so the Crown/police could investigate it for the purpose of "determining the legitimacy of the email". Also, since the message is stored on gmail's server, not on the laptop, then there is no reason I would have to use that laptop to access it. I believe this was just a ploy to trick me into bringing the laptop into the trial so I would have to disclose the passwords.

Moreover, since it was the Crown's and Denhoff's belief that I owned and/or controlled the website, the email wouldn't have mattered because Johnson would have claimed it was, essentially, an email from me to myself, that I was editor@desicapuano.com.

He did not do so.

[8]

At the trial, Constable Dent testified about his investigation of Mr. Fox in August 2021. He was aware that Mr. Fox was released from custody on the morning of August 12, 2021 and Constable Dent was responsible for assigning an analyst to see if the website was still accessible after Mr. Fox's release. When Constable Dent received confirmation that the website was operational on August 12, 13, 14 and 15, 2021, he arrested Mr. Fox for an alleged breach of his probation. He then asked Constable Tanino to interview Mr. Fox on August 17, 2021.

[9]

During cross-examination, Mr. Fox asked Constable Dent a number of questions relating to his investigation and interview of Mr. Fox in 2020. Constable Dent testified that Mr. Fox told him in the 2020 interview that he had transferred ownership of the website to a third person and that he would regain control of the website at a later time.

[10]

Both Constable Tanino and Constable Dent acknowledged that they could not say whether the website had been taken down at any point on August 12, 13, 14 or 15. They could only say that when Constable Tanino checked the website at one point on each of those days, the website was operational.

[11]

During his testimony, Mr. Fox contradicted his earlier statements about transferring the ownership and control of the website www.desicapuano.com.

But as I stated in my testimony, regardless of any admissions I may have made, the indisputable fact that I was in custody at FRCC when the website went online irrefutably proves that I could not, possibly, have had any involvement in putting it online – I had no access to the internet or to the content TR 2022-02-25 p115l27-37. And, when Johnson asked me if it is now my "evidence" that I did not create the website, I stated "right now, under oath, subject to being charged with perjury and having sworn that…everything that I say is true…I say I had no direct involvement in putting that website online…", and I point out that that's proven by the fact that I was in custody at FRCC at the time TR 2022-02-25 p119l30–p120l1.

Since the actual, physical evidence and reality is consistent with my testimony and contrary to my statements to the police, then that obviously means I was telling the truth on the stand and lying to the police.

Also, Johnson asked me if I'm suggesting I admitted to things I didn't do. I replied that I had said things to the police that I and they knew were not true because I was deliberately trying to get them to start a prosection for criminal harassment. I further stated I don't see how that is much different from the police making false statements to me, in order to build a false rapport, so I would say things they can use against me. I said "If it's okay for them to lie and manipulate me then it should be okay for me to do it back to them" TR 2022-02-25 p113l40–p114l8.

The fact that the police, the prosecutors, and the judges all accepted my admissions without any investigation into them, even though it would have been impossible for the admissions to be true, proves that the police don't care about the truth – their investigations are strictly to find evidence to support a conviction and to ignore and suppress everything exculpatory; the prosecutors don't care about innocence or guilt – their interest is only in getting a conviction at any cost; and the judges are only interested in maintaining the APPEARANCE of fairness and justice. This has all been done deliberately, on my part, over the past few years, to prove this point.

Instead, he claimed that the original website, www.desireecapuano.com, had expired because he stopped making monthly payments to the server. His friend, Liz Munoz, who resides in California, was responsible for making payments while Mr. Fox was in Canada and she apparently forgot to make the payments while Mr. Fox was in jail in Canada in 2018.

[12]

According to Mr. Fox, Ms. Munoz then launched a new website, www.desicapuano.com with the same content as www.desireecapuano.com and she was the owner of that website and was responsible for monitoring it. She did have a friend assist her in launching the website, however, as she apparently is not very technically savvy.

[13]

It was in November or December of 2018 that Ms. Munoz told Mr. Fox about the new website. Knowing that he was going to be released from custody at the end of December and would be bound by a probation order to ensure that the website was not accessible, Mr. Fox apparently instructed Ms. Munoz not to tell him anything about the website until his probation period was complete, so that he would not have to take it down.

[14]

He knew the website was online when he was released from custody because he checked online. He was also able to say that there had been updates to the website in the last year and a half, which means that he must have been accessing it during that time.

[15]

Mr. Fox claimed that he told Constable Dent in 2020 and Constable Tanino in 2021 that he transferred ownership and control of the website because it was "simpler" than telling them that Ms. Munoz launched the new website of her own volition. That explanation is not compelling.

[16]

It is in no way simpler to say that he transferred ownership and control.

Denhoff is ignoring the much more significant reasons I gave for why I provided that explanation to the police, namely "…I was very actively seeking to convince the BCPS to prosecute me for criminal harassment based on the new website. And in fact, even to this day, I would still do everything that I can to try to convince the BCPS to prosecute me for criminal harassment based on this new website" TR 2022-02-25 p111l9-15. And, "…that if I had said in the letter [to Fontana] that my friend had arranged for the website to be put back online with no involvement or…not in response to a request from me, that would mean I would have nothing to do with the website and, therefore, cannot be prosecuted for criminal harassment based on it" TR 2022-02-25 p113l8-15.

If the police already have a belief about something, then making a statement or "admission" which is consistent with that belief will, generally, be acceped by them without further inquiry or investigation. Whereas, if I had made a statement contrary to their belief they would have continued to interrogate me on it until I said something to discredit the statement, or they would simply not believe it and refuse to pursue or accept any evidence which would support the statement – which is exactly what happened in this case, with the email I sent to editor@desicapuano.com (the police didn't believe I sent the email, and if I did it would have been exculpatory, so the police made no real attempt to verify it). So, in that respect, it IS easier to say what the police, prosecutors, and judges already believe than to say the truth, when the truth is contrary to what they believe. Consider these Reasons for Judgment – how frequently Denhoff completely ignored or claimed to not believe any of my statements which were not consistent with the guilty verdict she wanted to impose – yet she accepts and completely believes, without a second thought, any of my statements which ARE consistent with a guilty verdict, even though those statements could not, possibly, be true.

It is, however, more incriminating, which Mr. Fox obviously realized before testifying in court.

It is no more or less incriminating to say I put the website online then transferred control to a another party; or to say I never had control in the first place; because the events in question occurred before any of the probation orders came into effect. Whether one thing occurred or the other, I wasn't on probation at the time and so whether I put the website up then transferred it, or whether someone else put it up and I never actually had control of it, either way I couldn't have possibly breached probation because I wasn't on probation.

The main reason for the differences in my statements to the police and my statements on the witness stand is that my statements to the police were not under oath, I was under no obligation to tell them the truth, to be precise, or to be completely forthright; whereas, on the witness stand I was being very careful to be as precise, accurate, thorough, and complete as possible. This is evidenced from a number of my responses, for example, about me and Capuano never having been legally married because we had an annulment not a divorce.

[17]

In addition, the new website, www.desicapuano.com not only has all of the old information from the former website he used to harass his former spouse, but it includes updates about his ongoing court processes in Canada.

[18]

It is notable that according to Mr. Fox, he and Ms. Munoz have drifted apart and are no longer in frequent contact. It is simply absurd to suggest that Ms. Munoz, who is not in regular contact with Mr. Fox, would pay for a website that is entirely related to Mr. Fox's harassment of Ms. Capuano and to Mr. Fox's criticisms of his legal processes.

This is a patently incorrect inference on the part of Denhoff. There is nothing in the record to support it. I never once said that Munoz was paying for the hosting with her own money. In fact, it was being paid for with my money, she was just responsible for ensuring the payment was issued to the hosting provider on time. This is another completely unsupported, false assumption by Denhoff.

First, the cost of keeping the website online is only about $15 per month. That's about 50¢ a day. That is so negligible it barely warrants consideration. This fact did not come up in the trial. Neither Denhoff nor Crown inquired.

Second, Munoz filled the maternal role in my son, Gabriel's, life for much of his childhood. Munoz was devastated when Capuano showed up out of the blue, took Gabriel away to Arizona, took very deliberate steps to have me deported to Canada, then immediately and completely cut Munoz out of Gabriel's life. None of this was discussed at the trial either. If Denhoff had doubts about the plausibility of my testimony about Munoz's willingness to put any resources into keeping the website online she should have given me the opportunity to explain, rather than drawing false inferences.

Third, the time and effort required to maintain a website like desicapuano.com is, literally, almost completely nil. The website can go months without ANY intervention at all.

Fourth, it was never stated or implied at the trial, that Munoz had any ongoing involvement in the website beyond putting it back online in 2018. This is an inference that Denhoff is making but it's based on absolutely nothing at all.

Fifth, the website is not based on my supposed "harassment" of Capuano. It's based on exposing all the bad conduct Capuano has engaged in over her life – such as abducting Gabriel and stealing him away from all the people he considered family, like Munoz. If the website actually constituted harassment then the BCPS, or police, or Capuano herself would be able to obtain a US injunction to compel the hosting provider to take it down.

Sixth, regarding Denhoff's reference to "Mr. Fox's criticisms of his legal processes", there is, in fact, copious physical evidence on this website which supports and even clearly proves all of my claims of corruption and misconduct that has been occurring in my cases. And not one person in the BCPS or the Ministry of Attorney General or the Ministry of Justice has denied any of my claims. This is relevant because it is due to that corruption and misconduct that I has been repeatedly prosecuted, imprisoned for the past seven years, and thereby cut off from my son and repeatedly and consistently defamed in the Canadian news media.

Seventh, this statement by Denhoff contradicts her later statement in paragraph 25, that I could have contacted Munoz and asked her to take down the site, or provided her information to the police. If Denhoff believes it is simply absurd to suggest Munoz was keeping the site online, then why does she later claim one of the things I could have done to cause the website to be no longer available is to contact Munoz? Here, Denhoff is claiming she believes Munoz isn't involved with the site; in paragraph 25 Denhoff is claiming she believes Munoz is involved with the site. Either Denhoff is full of shit here or she's full of shit in paragraph 25.

Moreover, in a letter written to Detective Fontana on June 6, 2019, Mr. Fox was encouraging the police to charge him with criminal harassment of Ms. Capuano. His apparent purpose was to force Ms. Capuano to testify and for him to be able to cross-examine her on what he claimed were her lies in a previous trial before Justice Holmes.

This is false! I explained in my testimony that my intention was to provoke the BCPS to prosecute me for criminal harassment again so I could expose all the corruption, misconduct, and perjury that occurred at the previous trial, thereby bringing the justice system into disrepute. It had nothing at all to do with Capuano or with trying to force her to testify.

Denhoff is, again, cherry picking only the parts from my testimony and explanations which will appear to support the Crown's case, while ignoring everything else. Johnson was trying to get me to admit that the purpose of my letter to Det. Fontana was to try to instigate another criminal harassment prosecution so I could cross-examine Capuano. However, I had stated "…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 misconduct and the perjury that occurred at the first trial and that would be the objective of that" TR 2022-02-25 p112l19-25.

In Johnson's direct-examination of Det. Tanino, he asked her if I made any statements about my goal of bringing the justice system into disrepute. Tanino read from the transcript of the interview where I explained my plan and intention of bringing the justice system into disrepute and exposing the corruption in the justice system by either forcing a new criminal harassment prosecution or by the Crown's persistent refusal to pursue a new criminal harassment prosecution TR 2022-02-23 p16l35–p18l10.

Given the preceding two sections, it is unfathomable that Denhoff would think my goal of being prosecuted for criminal harassment would be, primarily, to cross-examine Capuano. That would only be a means to the end of exposing the corruption and bringing the system into disrepute.

[19]

In that letter, Mr. Fox stated:

Particularly since by publishing the new website, I have engaged in exactly the same conduct which Justice Heather Holmes declared founded much of the basis of the guilty verdict in 2017 (at the first criminal harassment trial). I mean, if the website constituted criminal harassment at that point, then it must certainly still constitute criminal harassment now.

[20]

In that letter, Mr. Fox was making a clear admission that he launched, owned and controlled the website www.desicapuano.com.

However, it is indisputable that I was in custody at FRCC at the time, which means I did not have access to the internet or to the material for the website. It would, literally, have been impossible for me to launch or have any access to the website, and more importantly, to the hosting account. My admissions to the police were indisputably and irrefutable false!

During sentencing submissions, Denhoff revealed that she had believed I, and inmates in general, have access to the internet from within BC Corrections facilities TR 2022-02-25 p143l44–p144l43. This is a major, major issue because it means during my testimony and while preparing her Reasons for Judgment Denhoff believed I had access to the internet, including the ability to publish and maintain the website and to forward the editor@desicapuano.com email at any point. The moment Denhoff realized I, in fact, did not have access to the internet she should have either vacated the verdict and reconsidered it, or declared a mistrial.

I don't really believe Denhoff thought I had access to the internet, though, because that was referred to repeatedly throughout the trial, including during my cross-examintion of Det. Tanino TR 2022-02-23 p28l45 - p29l35. I believe Denhoff just used that as an excuse to justify her otherwise outrageous verdict. Either that, or she wasn't even paying attention during critical parts of the trial.

I do not accept his current explanation that he was lying to the police about publishing the website so that they would charge him with criminal harassment. It is apparent from Mr. Fox's frequent statements that he will never remove the website, and that Mr. Fox launched the website in order to continue to harass Ms. Capuano and to encourage the police to charge him so as to be able to cross-examine Ms. Capuano.

[21]

In his final submissions at trial, Mr. Fox argued that the Crown has not proven its case of a breach. First he argued that there is no evidence that he owns or has control over the website. As noted, Mr. Fox admitted to Constable Fontana, in a letter dated June 6, 2019 that he published the new website and engaged in criminal harassment.

This does not establish I had any involvement in or control over the website during the period of probation in this matter. The letter to Fontana was written almost three years prior. Even if I had admitted, in that letter, that I had been the one that put the website back online, it doesn't mean that now, three years later, I still have any involvement with the website.

Then, of course, there's that whole issue that the website was put online while I was in custody and so it couldn't have been the one who put it online, regardless of whatever "admission" I may have made about being the one who did it.

And, I most certainly DID NOT admit to engaging in criminal harassment. What I said was that if such conduct constituted criminal harassment at the time of the criminal harassment trial then it must constitute criminal harassment now. The implication being that the Crown's adamant refusal to prosecute me for criminal harassment based on the current website proves that the Crown DOES NOT actually believe the website constitutes criminal harassment.

In addition, Mr. Fox told both Constable Tanino and Constable Dent that he would take the website back when his probation ended, indicating he has retained control over the website.

It indicates nothing of the sort. Once I take it back, then I will have control over it, but until that time I do not. If you relinquish ownership and control of something to another party with the understanding that at some point in the future, when certain requirements are met, they may give it back to you, then until that time comes it is no longer yours. For example, if I give somebody my jacket with the understanding that if the day ever comes they no longer want it they'll offer it to me before they offer it to someone else, well then it's no longer my jacket. It now belongs to that other person. And he may, or may not give it back to me at some point in the future. But I can't, legally, take it back from him without his consent – it's no longer my property. Just because I may believe he will give it back to me at some future time does not make it mine, nor does it give me any control over the jacket. And, in the meantime, that third party is entitled to do as he pleases with the jacket. Same fucking idea, jackasses!