Transcript of Bail Proceedings (2022-06-15)
Synopsis
This is the transcript from the first day of my bail hearing in this matter.
This is the hearing where the prosecutor (Adam Flanders) admitted, on the record, that the BC Government believes I am playing a game of chicken with them, and because of the media attention I and the prosecutions against me have gotten, the government cannot be the one to "blink" in that game of chicken p12l10-13; p17l24-36.
The judge, Ellen Gordon, also repeatedly expressed her concerns that over the past six years, while I've been repeatedly prosecuted for refusing to take down the website, no one in the BC or Canadian justice systems have done anything to try to get the website shut down p4l27-p5l18; p25l21-p27l5 (other than, of course, prosecuting and imprisoning me, which clearly isn't causing the website to be taken down).
Flanders' statements in this hearing also clarify that the BC Government is not interested in taking down the website - they're interested in proving they can make me take down the website. This is not about protecting Capuano, as they keep insisting, it's about proving they can make me do what they ordered me to do.
PDFBCSC File No. 33526-1-W
244069-10-BC
Vancouver Registry
In the Provincial Court of British Columbia
(BEFORE THE HONOURABLE JUDGE GORDON)
Vancouver, B.C.
June 15, 2022
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT
JUDICIAL INTERIM RELEASE HEARING
JUDICIAL INTERIM RELEASE HEARING
BAN ON PUBLICATION 517(1) CCC
244069-10-BC
Vancouver Registry
In the Provincial Court of British Columbia
(BEFORE THE HONOURABLE JUDGE GORDON)
Vancouver, B.C.
June 15, 2022
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT
JUDICIAL INTERIM RELEASE HEARING
JUDICIAL INTERIM RELEASE HEARING
BAN ON PUBLICATION 517(1) CCC
Crown Counsel: Adam Flanders
Appearing on his own behalf: Patrick Fox
INDEX
EXHIBITS
- NIL
RULINGS
Vancouver, B.C.
June 15, 2022
Flanders:
And so for the record it's Flanders, F-l-a-n-d-e-r-s, first initial A., appearing for the provincial Crown, he/him pronouns. Dealing with number 1 on Your Honour's list, the Fox matter. This is Mr. Fox, just by way of introduction.
Judge:
All right. And what are we doing today?
Flanders:
We are likely going to do a lengthy -- well, in talking to him he's confirmed that we will be proceeding with a judicial interim release hearing.
Judge:
All right.
Flanders:
There's a great deal of back story in this case and that's why it's been set aside for -- for the length of time that --
Judge:
Pardon me?
Flanders:
There's a great deal of back story in this matter. It's been going on for some time. And so that's why it's been set aside for Your Honour's morning.
Judge:
All right.
Flanders:
But I don't know if Mr. --
Judge:
And on what basis is the Crown seeking detention?
Flanders:
On -- on all the bases actually.
Judge:
All right.
Flanders:
So primary ground, secondary ground and ultimately a tertiary ground.
Judge:
Okay.
Flanders:
But perhaps I'll let Mr. Fox bring up anything that he wants to before we get going in earnest.
Judge:
All right. Mr. Fox.
Fox:
I don't know that there's anything that I would bring up at this point until I've heard what the Crown's arguments are. There's not really much for me to say.
Judge:
All right. Have a seat.
SUBMISSIONS FOR CROWN BY CNSL A. FLANDERS:
Flanders:
And so, again, as I've said, the Crown is seeking Mr. Fox's detention on the primary, secondary and tertiary grounds. Just for the purposes of the record and Your Honour's iteration, Mr. Fox does typically choose to represent himself and he's -- he's done so on another court appearance where we discussed bail, and so I assume that's still the case that he wishes to be self-represented.
Fox:
Yes.
Flanders:
I am, before we get started, seeking a publication ban under s. 517(1).
Judge:
There will be a ban on publication on any evidence heard -- any evidence or submissions heard in this case until such time as all charges have been dealt with in court and completed.
Flanders:
And for reasons that I'm going to get into, as part of that ban I am asking that the materials that I provide to the court and also a copy to Mr. Fox not leave the court -- the courtroom.
Judge:
I think it is part of that ban. Thank you.
Flanders:
And so this is a copy for Your Honour of materials that I'll be referencing.
Judge:
Thank you.
Flanders:
And so --
Fox:
I'm sorry. I may have some objection to this not leaving the courtroom.
Judge:
Pardon me?
Fox:
I may have some objection to this -- the request that this not leave the courtroom.
Judge:
I'm sorry. You may have some objection ...
Fox:
Oh, to this artefact that was just given to me by the Crown --
Judge:
Why?
Fox:
Well, I mean, it seems that there might be stuff in here -- sorry, I just -- this is the first I've received this, so I'm not really sure all of what's in here, but this is something that was provided to the court, right, so it's becoming part of the record, is it not?
Judge:
Yes.
Fox:
So then shouldn't I be allowed to have a copy of it?
Judge:
Didn't you just get a copy of it?
Fox:
Oh, yes, but the Crown wants me to give this back to them?
Judge:
The Crown wants...
Fox:
Me to give this back to them.
Flanders:
At the -- at the conclusion of the bail hearing I would like to and it's because of some problems that have occurred. Part of this case is disclosure of court materials in what the Crown says is a harassing fashion of his ex-partner.
We are in the midst of a complicated disclosure process. It involves a laptop that's sent to the facility.
And so he will receive any germane materials for certainly the trial, but it's the Crown's view that it should be received only in that format.
Judge:
Well, what is there in here that the Crown is concerned about?
Flanders:
Really I'm not concerned about any of the materials at the start. It would only be the materials found in Tab 7 which are part of the allegations.
Judge:
Sorry. Let me look at it. So is Tab 7 the allegations that form the basis of Count 3?
Flanders:
Yes, Counts 2 and 3.
Judge:
All right. Well, then, I'll direct that -- I'll direct that those portions be taken out of the book and the rest Mr. Fox can take with him to the prison when he -- or to when he's released.
Flanders:
Yes. I think that that would be acceptable. I have to -- I am going to be asking for a more formalized order that was used on a prior occasion with Mr. Fox. I have to review it to see if that -- if it's within that order.
Judge:
All right. Well, let's see what happens --
Flanders:
Yes.
Judge:
-- and then I'll worry at the time.
Flanders:
Yes.
Judge:
Have a seat, Mr. Fox.
Fox:
I'm sorry, though. Can I just respond very quickly?
Judge:
I haven't made any ruling. Just have a seat.
Fox:
Okay.
Flanders:
Thank you. And so as Your Honour has seen, Mr. Fox is before the court on a three-count information. All of those allegations are probation breaches. That refers to a probation order ordered by Judge Denhoff imposed on February 25th, 2022. That can be found -- that probation order is found at Tab 1.
And just briefly -- I mean, really the probation order's main focus seems to be what many probation orders that Mr. Fox has been on have -- have had as their focus, which is that he remove the contents of this harassing website involving his ex -- ex-spouse or ex-partner.
And so as I mentioned, there's -- there's a great deal of history and context here.
Judge:
Before you go on, may I ask a stupid question?
Flanders:
I don't imagine it'll be stupid, but ...
Judge:
No, it is. You'd said something about the police having seized a computer.
Flanders:
No. Sorry. I didn't meant to leave that intention [sic]. The way that we've been disclosing things to Mr. Fox, both on this matter and also some appellate matters, has been through a password protected laptop that is held at the facility and he has access to when he'd like to review things.
Judge:
Oh, I see. Okay.
Flanders:
And so that's --
Judge:
No, no, no, no.
Flanders:
-- how the disclosure --
Judge:
That's fine.
Flanders:
-- will come in this case.
Judge:
So what I don't understand is if the website existed before the probation order, right?
Flanders:
Yes, it did previously.
Judge:
Why is it -- and it contains matters which other judges have concluded were criminal in nature.
Flanders:
At one point, yes. The initial incident was a criminal harassment, yes.
Judge:
All right. So why can't the police have someone who knows how to do computer or internet things -- I mean, clearly I don't because of the way I'm speaking -- delete it?
Flanders:
So I believe Mr. Fox will get into this. But there is a jurisdictional issue as a component of that. So it's hosted outside of Canada, so any order from --
Judge:
I didn't make -- I didn't say an order. I just don't understand why it just can't be done.
Flanders:
There would need to be an American order sought and obtained. We would need to know where the server was. I mean, I'm speaking off the cuff somewhat because I don't know. I'm not a technical-minded person either. But it would have to be sought out. Mr. Fox has said that the server is hosted in Arizona. I don't know if that's actually true. So that order would have to be sought. And ultimately the -- at the conclusion of that the -- the server could simply be switched to another serve.
Judge:
I understand that, but --
Flanders:
Yes.
Judge:
-- I just wanted to know why. Okay. Anyway. Go on.
Flanders:
And unfortunately I don't even know what would go into getting an order in America from Canada --
Judge:
Well, I imagine it would be under the Mutual Legal Assistance Treaty. But anyway. Go on.
Flanders:
Right. And so, again, there is a great deal of history here, but I'm going to point out that Mr. Fox hasn't been granted bail in any of these matters that I'm going to go into since 2016. And so I'm going to suggest that Your Honour should follow all of those judges and should also decline to grant Mr. Fox bail.
To go into that history, just the judicial interim release history, he was first detained on the initial substantive criminal harassment charges on June 22nd, 2016.
Judge:
Sorry. One sec.
Flanders:
Sorry.
Judge:
Detained on --
Flanders:
In June 22nd of 2016. That was by Judge Werier. He remained in custody awaiting that trial until the end of it in 2017 when he began serving a lengthy sentence.
Judge:
All right. I'm just looking. Okay.
Flanders:
So since that bail hearing Mr. Fox has conducted four additional bail hearings all on breach allegations of -- of various kinds of various orders of the court, and he's been detained every time. By my count he has also had the benefit of three s. 525 hearings at the supreme court. Again he's remained in custody at the conclusion of those hearings.
And so put as finally as I can, every court in the last six years over five bail hearings, three bail reviews, have found Mr. [Fox] to be an unacceptable bail -- candidate for release. The only thing he has done since then is continue to breach, at least as alleged by the Crown.
And so throughout that period he has spent almost all of his time in custody either awaiting trial or serving a sentence, and so he has spent only very brief periods outside of jail before subsequently breaching and being returned to jail. On the case before Your Honour he was released from Fraser Regional on April 17th, and it alleged that he had breached by April 21st, essentially immediately.
Judge:
Pardon me. Essentially ...
Flanders:
Essentially immediately. Within three days. It's further alleged that he continued to breach into -- into May.
Judge:
When was he arrested on this?
Flanders:
Unfortunately with digital files, I mean --
Judge:
Pardon me?
Flanders:
Unfortunately without my -- I -- we no longer have physical files to note that down.
Judge:
Oh, right. Madam Registrar, what was the first appearance date?
Clerk:
It shows here, Your Honour, May 17th.
Judge:
Pardon me?
Clerk:
May 17.
Judge:
Okay.
Flanders:
And that accords with my memory. I note that --
Judge:
So then he would've had to be arrested May 16th. May 17th was a Tuesday.
Flanders:
And -- and I see Mr. Fox --
Judge:
All right.
Flanders:
-- nodding his head, so that makes sense. And I know he's been in for about a month now.
Judge:
Okay.
Flanders:
And so to understand this context that I've been bringing up, I direct Your Honour's attention to Tab 2. And so in 2017 Mr. Fox was convicted for that criminal harassment of his ex-spouse. Ultimately he had created a website, the sole purpose of which seemed to be to harass her quite explicitly. I don't know if Your Honour's familiar, but Mr. Fox was in and out of the news quite heavily in this period of time. He had suggested that essentially he would do anything within -- with the caveat, admittedly, of his view being that he would do anything within the law to essentially harass her or drive her to suicide.
And so the B.C. Court of Appeal in two separate decisions outlined Mr. Fox's conduct in relation to that website quite extensively.
Most recently they outline that at Tab 2, Fox, 2021 BCCA 308. And so I'll just briefly direct Your Honour to Tab 4 -- or, sorry.
Judge:
Sorry. What do you want me to look at at Tab 2?
Flanders:
Tab 2, paragraph 4.
Judge:
One moment.
Flanders:
And the court of appeal --
Judge:
Sorry. One moment.
Flanders:
Yes.
Judge:
Paragraph 24?
Flanders:
No. Sorry. Four.
Judge:
Oh, paragraph 4. Okay.
Flanders:
And they just --
Judge:
Wait. Let me read it. Okay.
Flanders:
And so that briefly outlines the background. In 2008 --
Judge:
Sorry. One moment.
Flanders:
Or sorry, 2018.
Judge:
Sorry. One moment.
Flanders:
Yes.
Judge:
Okay. 2018?
Flanders:
Yes. This --
Judge:
Yes.
Flanders:
And this is at Tab 3, Fox, 2018 BCCA 431.
Judge:
All right. One moment. So it's an earlier case.
Flanders:
It is. But it's really involved in this - - what I'll describe as an omnibus appeal process that Mr. --
Judge:
Okay.
Flanders:
-- Fox is involved in. And so beginning at paragraph 3 and really continuing --
Judge:
Let me read it.
Flanders:
Yes.
Judge:
Is it -- in what country is the complainant?
Flanders:
The complainant is in the United States. I believe she's in Arizona. At least that was --
Judge:
Okay.
Flanders:
-- true for some time.
Judge:
Okay. Do you want me to continue reading after paragraph 3?
Flanders:
Yes. And it is a lengthier --
Judge:
That's all right.
Flanders:
I had intended to just read it into the record.
Judge:
I don't mind reading what Madam Justice Garson wrote. Just give me a moment.
Flanders:
Sure. And -- and --
Judge:
Wait. Let me read it.
Flanders:
No, I know. But I'll just say to Your Honour that really it continues for quite some time.
Judge:
Well, when I get -- when I think I'm sufficiently informed, I'll stop reading.
Flanders:
Yes. Thank you.
Judge:
Okay. I've read some. Let me -- let me ask one question. When I look at the allegation in Count 3 today --
Flanders:
Yes.
Judge:
-- is it alleged that since his release in April, new material has been put on the website?
Flanders:
Yes.
Judge:
Okay.
Flanders:
And that --
Judge:
All right.
Flanders:
That is really the -- the heart of the Crown's case on that point.
Judge:
All right.
Flanders:
That there have been new materials that have been distributed essentially --
Judge:
Okay.
Flanders:
-- about the main complainant. I would just ask how far Your Honour got so that I know where to focus my submissions.
Judge:
Sorry. I just want to make a note of what I just asked you. Paragraph 20 of the trial judge's reasons, page 3.
Flanders:
Yes.
Judge:
I can go on if you want, but I felt I got a flavour for what -- what it was.
Flanders:
Yes. And I mean, I will --
Judge:
I'll read more. That's okay.
Flanders:
Thank you.
Judge:
Okay. I'm stopping at the appeal and grounds of appeal.
Flanders:
Yes.
Judge:
Okay.
Flanders:
And so I think that Your Honour used the perfect word that that's essentially the flavour of -- of the initial incidents. There's really two crimes for which he was convicted. One was the criminal harassment. The other was involving firearms seemingly attempted to be shipped across the border and bringing that firearm to that location to ship those items.
And so upon his conviction in -- I note that he's just --
Judge:
Oh, sorry. Can we stand down for a minute? You don't have to go anywhere, sir. I just need to do a -- a fast video appearance.
Flanders:
Yes.
Judge:
That's the one I said was coming from 307. Just have a seat. It'll take me two and a half minutes, max.
Flanders:
Thank you, Your Honour.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
Judge:
Okay. Let's go back. Mr. Flanders.
Flanders:
Yes, Your Honour.
Judge:
You can stop it, Madam Registrar. Well, for the time being. Okay.
SUBMISSIONS FOR CROWN BY CNSL A. FLANDERS, CONTINUING:
Flanders:
So as -- as I was saying, Your Honour, that essentially gives the flavour for the -- what I'll call the inciting, substantive charge. Upon his conviction in 2017 he was sentenced to custody with probation to follow. He'd spent a significant period of time in custody. And so even though he received a sentence that would ordinarily put him into the federal system, it's my understanding that he -- with the amount of time he had to serve, a probation order was available.
And that sentencing decision -- and I won't go into it -- is found at Tab 4. That's from the B.C. Supreme --
Judge:
Pardon me?
Flanders:
The sentencing decision from that matter is found at Tab 4. I'm not going to go into that, but just for Your Honour's iteration, that sentencing decision is there. It really has the most context of the inciting incident. But a term of his first probation order was the removal of this website from the internet. He didn't remove it, is the Crown's position.
Three subsequent court orders following convictions, rather, for breach probation had the same term or similar terms to remove the website and not post to it.
And since -- since that time he's essentially steadfastly refused to remove the website, is our view, from the internet and has continued to post to it. In the Crown's respectful submission he's flagrantly disregarded this series of court orders ordering him to do so.
Now, I'll note that in addition to his -- I just note that Mr. Fox is standing.
Judge:
Yes, sir.
Fox:
I'm sorry. The pen that the clerk had given me has died. I wonder if somebody might have another. I'm not allowed to bring a pen from the jail, so --
Judge:
Here. Madam Registrar. I don't know if this works, but there seems to be pens here. Thank you.
Fox:
Thank you. Yes. Thank you.
Flanders:
And so before I get into the real meat of Mr. Fox's Canadian criminal record I will note Mr. Fox also has a criminal record in the United States.
Judge:
Did you hand that up?
Flanders:
Well -- so it's contained -- knowledge of that is contained in Tab 5, paragraph 12.
Judge:
Okay. One sec.
Flanders:
Those are the reasons of --
Judge:
One sec.
Flanders:
-- Judge Sutherland.
Judge:
What paragraph?
Flanders:
Paragraph 12.
Judge:
That certainly sounds like an American-imposed sentence for that offence.
Flanders:
Yes. And it -- and it is relevant on these proceedings because Mr. Fox still maintains that he is an American citizen and that he is in B.C. and Canada unlawfully and he has no status here, and that has been --
Judge:
Well, I'll just say this. Even if that's true it's of no moment to me because there are many people who enter Canada illegally and commit crimes contrary to the Criminal Code and their citizenship status or otherwise non-status in Canada is of no moment. The issue is whether a crime has been committed.
Flanders:
Well, and I say it to some extent because I anticipate that that will be part of his submission
Judge:
Well, he can make the argument, but he's heard what I said. Thank you.
Flanders:
Yeah. It is also relevant because some of the things he say -- he says -- well, his credibility is at issue.
Judge:
Well, I --
Flanders:
The perjury conviction is --
Judge:
-- I read -- I read --
Flanders:
Yes.
Judge:
-- you know, the history of him being in the United States and one of the facts you asked me to read, so ...
Flanders:
Yes. And so Tab 6 is where we reach the Canadian criminal record, the JUSTIN conviction list. As I mentioned, it has those first two offences dealt with in 2017. And then again he goes through these -- this period of fairly consistent breaches. And I'll note that on these breaches he's receiving significant sentences, Your Honour. And in my view that's a reflection of the seriousness with which we have to treat these breaches.
I know that breaches are always not viewed as the most serious criminal charge, but it really is --
Judge:
Well, not in this court.
Flanders:
Well, yes.
Judge:
No, no, no. I view -- I view the violation of a court order seriously.
Flanders:
Right. And I would suggest that even where -- or especially where he has repeatedly breached the same order in the same way, it is becoming even more serious. It really comes down to that he's committing crimes against the administration of justice at this point.
It is really the Crown's submission that he has at various junctures said that he will never take this website down, that he -- it certainly seems to be his position that he will never take this website down no matter what they -- the justice system does.
But my position is that that cannot be allowed to stand that essentially the -- in this game of chicken that Mr. Fox has set up that the justice system can't blink on this type of order and that he needs to start following it.
And so just for the purposes of the record, again, he's received a 12-month jail sentence, a 6-month jail sentence, the equivalent of 16 months, 12 months, all for -- for breaches. One of those breaches involved -- at the time he was on an order not to leave British Columbia, and he surrendered himself to the United States, seemingly made a refugee claim in the United States. He was held for some period of time and then returned to Canada. And that's important because the Crown says that he is a primary ground risk. I'll get more into that, but that is what -- partially what grounds the Crown's concerned that he will simply flee to the United States and not show up for court if he's released.
Now, as far as what he's before the court on. Again, the terms of Mr. Fox's probation order required him to attend at the probation office and tell his probation officer what efforts he had made to remove the website. Now, candidly, he did -- he did appear and I anticipate that there will be a legal issue of whether or not he was required to attend again
in order to -- in order to comply with the condition fully, which is that it's a two-part order really. He has to comply --
Judge:
And what tab is that order again, again? One?
Flanders:
That's Tab 1, yes.
Judge:
All right. Let me just read that conviction. Okay.
Flanders:
And so Mr. Fox did report on April 19th. He was directed to continue reporting.
Judge:
Pardon me?
Flanders:
He was directed to continue to report
so that he could report what steps he had taken in compliance with the order, and he refused to do so, citing that it was his view that he only needed to report on one occasion. And so I don't shy away from -- I anticipate that that will be Mr. Fox's argument at a trial, but that it's an argument.
Ultimately the Crown's view is also that he did not take down the website
and that in fact it continued to go through -- between May 1st and May 11th new postings were in fact uploaded onto the website. And those can be found --
Judge:
Sorry. Slow down, please.
Flanders:
Certainly. And so I'm referring to Tab 7.
Judge:
Sorry. Where can those be found?
Flanders:
Tab 7.
Judge:
Okay. So can you just direct me to what's new.
Flanders:
Everything that we've included in the booklet is new from the Crown's perspective.
Judge:
I see.
Flanders:
Like, they are dated.
Judge:
Oh, I see. Like May 11, 2022.
Flanders:
Yes.
Judge:
Gotcha. Okay. Can you just give me a moment to read it?
Flanders:
Yes.
Judge:
Thank you. So all the stuff on the left -- okay. I'm reading the stuff on the right, but what's the stuff on the left?
Flanders:
Those are links to other articles or -- or sometimes the articles. So if Your Honour notes "Judge Katherine Denhoff and her delusional reasons for judgment" --
Judge:
Yes.
Flanders:
-- is the article. "I defraud the public and still nothing happens to me" is another article. And essentially they're -- they're in -- at least as I review them, I believe they are in date order.
Judge:
Okay. All right. So -- but I see some of them are quite old. Like some are 2016 and '15. Okay.
Flanders:
Yes.
Judge:
Let me just finish reading this. Do I really need to go any further than the specious comments that still means "still"?
Flanders:
No. I think again Your Honour has the flavour.
Judge:
I got the flavour of it, yes.
Flanders:
I can say that all of the postings are -- are sort of consistent over time. It's often written from the perspective of his ex-wife. And -- and obviously --
Judge:
Well, I think this one's clearly written from Mr. Fox's perspective.
Flanders:
That -- that first one yes, but there are --
Judge:
Well, is there anything about after -- is there anything since his release from custody about the -- the initial complainant?
Flanders:
Yes.
Judge:
Where is that?
Flanders:
And so unfortunately it's not paginated because it's --
Judge:
That's okay.
Flanders:
But if you go down to what would be the next article, "I defraud the public and still nothing happens to me, perspective, Desiree," that is written -- that's what I'm referring to that it's written from the perspective of --
Judge:
Okay. So that's on the first page.
Flanders:
No. Sorry. That's -- if Your Honour continues to flip. And as I said, they're not paginated, but it's -- it's many pages in.
Judge:
Okay. I'll look for it.
Flanders:
There's actually a photo -- photograph halfway down showing Ms. -- Ms. Capuano.
Judge:
Sorry. May 8, 2022?
Flanders:
Yes.
Judge:
"I created a Go Fund campaign"?
Flanders:
Yes. And that is again written from -- as if she is writing it, but --
Judge:
Okay. So -- just give me a moment. I'm sorry. I'm just reading it.
Flanders:
Right.
Judge:
Okay. Thank you.
Flanders:
And so the Crown's position is that really this is just a continuation of the same pattern of breaching that he's had throughout since he was released in 2017. I won't go through -- through the details of them, but Tabs 8 through 11 hold the various probation orders he's been on over the last six years. Again, all of them required some type of condition where he would remove it or not add to it and in the Crown's view he's been convicted several times of that exact thing. And that is the rub in this case. Mr. Fox's behaviour in some ways is inexplicable.
Judge:
Is ...
Flanders:
Inexplicable. It is very focused on continuing this website, ultimately continuing to harass Ms. Capuano. And so it seems that he is incapable of doing what the court has ordered, and for that reason he will almost certainly breach any order that Your Honour could impose upon him while he remains in the community. He's repeatedly shown that he won't be bound by those conditions. Specifically this condition.
I'll just direct Your Honour's attention back to Judge Sutherland's reasons on a similar bail hearing.
Judge:
Which tab again?
Flanders:
At Tab 5.
Judge:
Five?
Flanders:
That's Tab 5, yes. Specifically paragraphs --
Judge:
Sorry. One moment. Paragraph ...
Flanders:
Sixty-three through 66.
Judge:
Okay. Give me a moment. Thank you.
Flanders:
And so essentially the Crown views those comments by Judge Sutherland as the secondary ground concern in a nutshell. It's a telling comment in the sense that it demonstrates Mr. Fox's commitment to continue in this campaign to harass Ms. Capuano and to breach this court's orders.
How Judge Sutherland viewed the primary ground is found just after that beginning at paragraph 68.
Judge:
I'm not really all that concerned with the primary ground.
Flanders:
Well, and, again, I bring it up only because he did flee to America --
Judge:
I know.
Flanders:
-- on one occasion.
Judge:
I know. He -- I know. I get it.
Flanders:
I -- I also bring it up because more recently than that, in the Crown's respectful view, the primary ground is -- is -- has been made more relevant or it's been made clearer.
I was contacted some time ago by David Layton from the Crown's office who is running the appeal -- again, this omnibus appeal with Mr. Fox. And so that was back on June 2nd. Mr. Layton informed me by email that -- and I'll just read out the email. [ as read in]:
Today he --
And he was referring to Mr. Fox.
-- and I were before Justice Frankel for a case management appearance at which time he stated both off the record to me directly and on record --
Judge:
Pardon me? At which time --
Flanders:
... at which time he stated both off the record to me directly and on the record to Justice Frankel that he will be leaving Canada as soon as he is released from custody.
Judge:
All right.
Flanders:
To Justice Frankel he added that he recognizes that this will mean that his appeals will likely be dismissed as abandoned if they haven't been heard by then. [As read in]:
In an off-the-record discussion with me after the appearance, Mr. Fox also said that he realized that leaving Canada will result in a warrant being issued for his arrest. He did not explain why he believed this would happen, and I didn't ask.
And so again Mr. Fox is essentially informing us he's still very focused on leaving Canada at basically all costs. And so we don't, in my respectful submission, have to guess what Mr. Fox plans to do. He has told us. Given the first opportunity he is going to again attempt to enter the United States. Given his history I imagine he will again claim that he is an American citizen. He will potentially again make a refugee claim, at which point he will be detained by the Americans and sent back to Canada in due course, I would imagine. But, again, none of that involves attending court regularly, appearing for trial.
And so in the Crown's respectful submission, for all the reasons he's been detained every other time, Mr. Fox should be detained again, in my respectful submission. He continuously violated court orders and he's made it clear through his conduct that will not abide by these conditions or any conditions imposed by the court. And so he will continue to breach both his old probation order, continuing to commit new offences, and we can't have any confidence that he won't continue to breach any new order that Your Honour were to impose.
As I mentioned, the Crown has these primary ground concerns. But, finally, there is this tertiary ground issue. As I've mentioned, there -- this -- this case has over the years received a lot of public attention. It's been advertised quite heavily. Or not advertised. It's been discussed in the media quite heavily.
Now, Judge Sutherland quite specifically that he didn't need to address the tertiary ground because of his findings on a primary and secondary ground, but I'm going to request that Your Honour make that finding. I would urge Your Honour to make the finding here because Mr. Fox has essentially thumbed his nose at the justice system quite heavily for six years.
He's made it a point to suggest that he will not be constrained by orders of this or any court in B. C. And as recently as June 2nd, as I mentioned, he's informed the court of appeal that he will simply flee the jurisdiction despite being bound by this probation order and also needing to attend to this matter in court.
And so if Mr. Fox were released, it would bring the administration of justice into disrepute and it should be noted for the public
for what I'm -- and for what I'm sure will be future bail hearings conducted by Mr. Fox that he is simply no longer releasable given his -- given his prior conduct. That he is too great a risk on the primary, secondary and ultimately this tertiary ground to be released and it would bring the administration of justice into disrepute, in fact, in my submission, if he were released.
Judge:
Okay. Give me one moment.
All right, Mr. Fox. Can you stand up, please, sir. I'm going to start asking you questions, all right? How old are you, sir?
Fox:
Forty-eight.
Judge:
Where were you born?
Fox:
Florida.
Judge:
Where in Florida?
Fox:
Hollywood in Broward County.
Judge:
All right. And where did you grow up?
Fox:
Mostly in Los Angeles.
Judge:
What part of Los Angeles?
Fox:
North Hollywood.
Judge:
What school did you go to?
Fox:
North Hollywood High School, then UCLA.
Judge:
What did you take at UCLA?
Fox:
Computer science.
Judge:
Pardon me?
Fox:
Computer science.
Judge:
Did you graduate?
Fox:
Yes. Bachelors.
Judge:
So you have a bachelor of fine arts or a bachelor of arts?
Fox:
Bachelor of science in computer science.
Judge:
Pardon me?
Fox:
Bachelor of science in computer science.
Judge:
Oh, okay. And what year did you graduate?
Fox:
'96.
Judge:
All right. And where did you go then?
Fox:
I --
Judge:
Where did you go after you graduated?
Fox:
Where did I go? I remained in Los Angeles.
Judge:
Okay.
Fox:
In the 90s I had spent some time in some other states on business. Texas, Colorado, et cetera, but my primary residence remained Los Angeles.
Judge:
All right. And where did you live then in Los Angeles?
Fox:
Let's see. I moved around quite a bit in the 90s as --
Judge:
I know.
Fox:
-- my career was going.
Judge:
Give me some addresses.
My family all lives in Los Angeles. I'm very familiar with the city.
Fox:
Okay. So first I stayed in North Hollywood for I think the first year after I graduated. Then I lived for a while in Marina del Rey. And I'm not going chronologically here. I'm just going from my memory. I lived in Marina del Rey for a while, West Hollywood. Eventually I moved down to the area called South Bay.
Judge:
Called ...
Fox:
South Bay. Which --
Judge:
South ...
Fox:
South Bay.
Judge:
As in the South Bay in San Francisco?
Fox:
No, no. The part of Los Angeles that includes Hermosa Beach, Redondo Beach.
Judge:
Oh, I see. Okay.
Fox:
Torrance.
Judge:
Yes. All right.
Fox:
And so I lived in Torrance for a number of years. Eventually I moved to Phoenix in -- well, I lived in Phoenix also briefly in 2000 and 2001.
Judge:
All right. where -- where's your family?
Fox:
I don't really have any anymore. My parents are deceased and I have no extended family that I've ever kept in contact with. I have --
Judge:
No siblings?
Fox:
No. I have a son and of course my ex-wife.
Judge:
Okay. What's your son's name?
Fox:
Gabriel.
Judge:
Pardon me?
Fox:
Gabriel.
Judge:
And what was his date of birth.
Fox:
September 27th, 2000.
Judge:
All right. So what year did you meet the complainant?
Fox:
I met her in January of 2000.
Judge:
And when did you get married?
Fox:
In -- I believe it was August of 2000.
Judge:
And when did you separate?
Fox:
October 2001.
Judge:
Okay. When did you come to Canada?
Fox:
I was deported here in February 2013, but in March I went back to Los Angeles, and then I was deported here a second time in May of 2013.
Judge:
Okay. I'll phrase the question this way. Why does the United States believe you're a Canadian citizen?
Fox:
My answer to that would be I believe that the United States does not believe I'm a Canadian citizen. They know exact who I am. IRCC and CBSA documents from here in Canada --
Judge:
Sir, you're not answering my question, and you understood my question.
Fox:
Well, yes of course --
Judge:
No, no, no, no. No, no, no, no.
Fox:
Okay.
Judge:
I asked a very specific question and I asked it very fairly not to hurt you. So remember -- pay attention to what I'm asking you.
Fox:
Yes.
Judge:
Why does the United States believe that you're a Canadian citizen?
Fox:
Right. And my answer to that is --
Judge:
Not "my answer to that is." You know the answer. What is it? Why do they think you're not American?
Fox:
But I don't believe that they do.
Judge:
Well, they can't -- they wouldn't be -- sir, the only reason they deport you to Canada is because they believe you're Canadian.
So I'm asking why do they believe you're Canadian?
Fox:
I can't answer that because it's based on the assumption that they do believe that, but --
Judge:
Okay. All right. So -- all right. So where are you living now, sir?
Fox:
Well, currently at North Fraser.
Judge:
Well --
Fox:
I have no --
Judge:
-- where are you planning -- if I were to release you, where are you planning on living?
Fox:
I would have to go to a homeless shelter because since I've -- since my arrest in 2016 I've not had a fixed address in Canada.
Judge:
Where were you arrested?
Fox:
I was staying at the Belkin House shelter.
Judge:
Pardon me?
Fox:
Belkin House. Salvation Army Belkin House.
Judge:
Okay. And that was -- that's where you were arrested?
Fox:
Yes.
Judge:
And is that where you stayed after Judge Denhoff's sentence expired?
Fox:
That is correct, yes.
Judge:
And were you -- did you initially go to Belkin House because the jail directed you there, or you went there on your own?
Fox:
I went on my own.
Judge:
Okay. All right. So what else did you want to tell me about why you think you should be released? And there's certain things I may stop you because judges can make only so many inquiries and I have to protect your right to remain silent, so I may stop you.
Fox:
Right. Well, I would like to respond to some of the points that the Crown had made.
Judge:
Go ahead. If I tell you that you're entering into --
Fox:
Sure.
Judge:
-- an inappropriate field, I will tell you.
SUBMISSIONS FOR ACCUSED BY PATRICK FOX :
Fox:
Oh, first I want to clarify. With respect to the firearms charge that the Crown had brought up.
Judge:
I'm not in the least bit concerned with that.
Fox:
Oh, okay. Well, I did --
Judge:
I'm not concerned with that.
Fox:
Okay.
Judge:
I'm concerned with the website. Forget -- the firearms --
Fox:
Right.
Judge:
-- I'm not concerned with.
Fox:
Since 2018 the current website that's online -- because this is the second website. There was another original website that was hosted at DesireeCapuano.com. That one was created and went online in 2014. But while I was serving my sentence in 2018 that website went off line very briefly and then this newer current one which is hosted at DesiCapuano.com went online. That went online while I was in custody and all of these prosecutions that have been brought against me since 2019 about failing or refusing to take down the website, the Crown has failed to provide any proof, any tangible proof or evidence whatsoever that I actually have any involvement with this website.
Judge:
Okay.
Fox:
And the fact that the website was put online while I was in custody at FRCC establishes that I couldn't have been involved in putting it online, that some third party must have been doing that. But also over the past few years while I've been in custody there have been a number of updates or posts made on the website while I've been in custody. So, again, since I don't have access to the internet from within North Fraser or Fraser, there's no way that I could've made those posts. So that also shows that someone else is actually maintaining this website.
Judge:
All right. Let me ask you something.
Fox:
Sure.
Judge:
Okay. Mr. Flanders, has anyone checked if since May 16th anything has been done to the website?
Flanders:
I certainly haven't because I haven't wanted to make myself a witness. I don't know if police -- nothing I've seen from police has indicated that they've been monitoring it continuously.
Judge:
All right. Since his arrest. Okay.
Flanders:
Yes. But I -- I mean, I --
Judge:
That's okay.
Flanders:
I have access to it. I can go and look at it --
Judge:
All right.
Flanders:
-- if Your Honour would like.
Judge:
Go on, Mr. Fox.
Fox:
Can I -- can I respond to one point that the Crown made. He kind of -- he brought it up at length, I believe, the issue of my citizenship.
I was deported from the U.S. to Canada, but as I was about to say earlier, IRCC and CBSA documents, which I don't have on me here because I didn't think that they were going to be brought up, those documents also clearly state that I was born in the United States, and so the Canadian government is well aware of the fact that I was born in the United States. It's there in their own records. And those are actually on the website, I understand.
My statement -- and I have stated this a number of times over the past few years that I will never take down the website. The Crown keeps ignoring the fact that the reason I say I will never taken down the website is because I don't own the website now. It's not -- it's not in my control to take it down. By saying that I'm thumbing my nose at the system. I'm saying that I don't have the capability to take down the website. If I'm released right now or if I'm kept in custody, the website is still going to be online. And if I get sentenced to two years or four years for this, it's not going to change anything. The website will still be there.
Now, with regard to Count 1. I did report on April 19th, and there's no dispute about. To probation, I mean. I spoke with an officer named Julie who was not the officer -- probation officer specifically assigned to me and they wanted me to come back --
Judge:
This is where you can't --
Fox:
Oh, okay.
Judge:
This is where --
Fox:
Right.
Judge:
-- it's not appropriate.
Fox:
But all I would say on that, then --
Judge:
This is where it's not appropriate.
Fox:
It's my understanding that when I was released from Fraser back in April the website was already offline at that point. And so there was nothing for me to do to comply with --
Judge:
Who told you that?
Fox:
That the website was offline?
Judge:
Yes.
Fox:
Well, I checked it myself when I was released. And when you would try to pull it up at that point, it would give -- I think it was a 403 error message, meaning prohibited or access denied or something.
And then shortly after that, a few days after that, then it changed from that to prompting for a password, so --
Judge:
Pardon me?
Fox:
A few days after that it changed so that it required a username and a password to access it. And I don't have that username or password, so I don't know what was going on with it.
Also I want to point out that all of the prior convictions related to the same allegation about failure or refusing to take down the website are all still currently on appeal. And in each of them I think the grounds of appeal are -- some of the grounds are very strong, and even Mr. Layton himself has agreed that there are some very strong grounds that I'm raising.
And when I had said to Mr. Layton on -- I guess it was June 2nd that I intended to leave Canada as soon as I can once I'm released. I also mentioned to him that if I were released on bail, though, I wouldn't be able to do that because as the Crown had pointed out here that would result in a warrant for my arrest. Then Homeland Security or the U.S. authorities would end up just sending me back here anyway. So when I had said to Mr. Layton that I intend to leave Canada as soon as I can, that would mean after this matter would be completed.
Also I've never made a refugee claim or asylum claim in the U.S. That was Homeland Security that brought that up.
I also disagree with the Crown's position that releasing me would bring the justice system into disrepute.
Judge:
I'm not -- you don't have to --
Fox:
Okay.
Judge:
-- address that one either.
Fox:
So those are the points that the Crown made that I wanted to address. I did have some arguments that I wanted to bring up, but --
Judge:
Go ahead.
Fox:
Okay.
Judge:
If it's inappropriate I'll tell you it's inappropriate.
Fox:
Sure.
Judge:
There's only certain things as a judge I can inquire from an unrepresented accused.
Fox:
Right.
Judge:
So if you go into that area I'll say "be quiet, sir."
Fox:
Thank you. I think it is very relevant and very significant that the website has been online, whether the first or the second website, they've been online since 2014. And over the past few years since the criminal harassment conviction they've still been online, yet the Crown and Ms. Capuano herself, neither of them have done anything at all to try to get the website taken offline. Even -- you had brought that up earlier. You had asked about that.
Ms. Capuano, unless she's moved, but the last I heard she was living in Arizona. The website is hosted with a hosting provider in Arizona. It would be a very simple thing for her to go to court there and get --
Judge:
I don't know about that, but okay. I have your argument on that point.
Fox:
Right. Yet she --
Judge:
I don't know about that, so -- and there's no evidence about her, so don't go into that.
Fox:
Likewise, the Crown could take some steps to try to get the website taken down. Like, it's clear that prosecuting me for these things and locking me up in jail is not going to result in the website coming down. It's been years that this has been going on and for six years of my life I've been in jail because of this and the website is still there. The Crown --
Judge:
You know what I'm going to do, sir?
Fox:
Sure.
Judge:
I'm going to stop this proceeding right here, right now.
Fox:
Okay.
Judge:
For the time being. I'm seized of it. In fact, Madam Registrar, I'm ordering a transcript of what we've heard so far. And what I want is for the Crown to investigate why not -- and I'm aware that since Madam Justice Holmes made the initial order on November 10, 2017, that the website be taken down. I am quite curious as I asked you before your -- when you first commenced, I want to know why the police have not worked with counsel for the Department of Justice of Canada through MLAT, Mutual Assistance -- Mutual Legal Assistance Treaty, to get it taken down. And I'm very curious about that why -- because I don't know, but I suspect that could've been done. I just say that. I'm not sure. But if it takes you a week to find out, Mr. Flanders, if it takes you two weeks to find out, Mr. Flanders, that's fine with me. But I want that --
Flanders:
I think it will take some time.
Judge:
-- answer -- I want that answer before we continue because Mr. Fox is right, quite frankly. That is significant to me.
Flanders:
Well, I -- I will do that. I will make those inquiries.
Judge:
No, no, no. That's significant to me and I'm adjourning these proceedings. Right now -- I'll tell you. I'm in court -- today is June 15th. I'm in -- the only problem is next week some days I'm in courtrooms that don't have prisoner's boxes.
Flanders:
Well, for this inquiry I wonder whether or not it makes sense for us to --
Judge:
Yes.
Flanders:
Not having him brought in person. I know that's an inconvenience, and so --
Judge:
Do you mind appearing by video?
Fox:
I prefer to be here in person if I'm going to be making any submissions or arguments.
Judge:
No. Because next week is just to find out if they know.
Fox:
Oh, I see. Okay.
Judge:
So February -- February. June 22nd in whatever courtroom I'm in.
Flanders:
What day of the week is that, Your Honour? Because --
Judge:
Wednesday.
Flanders:
Wednesday. Okay.
Judge:
That's why I said a week. Why?
Flanders:
I just wanted to -- I don't have a calendar in front of me. I'm in court just Tuesday and Thursday, so I want to make sure --
Judge:
Oh, okay. So June 22nd at 9:30 in whatever courtroom I'm in. And Mr. Fox can appear by video. And I'm adjourning it for the Crown to attempt to discover why it is the authorities have made -- or I'll even rephrase it. What, if any, attempts have the authorities made to have the website taken down? And why is it that the authorities can't have it taken down? Like, it just seems virtually perverse to me, but -- you know, as I said, I'm certainly not a website designer. I've never created a website. In fact I've never put anything on a website. So I really don't know how to works, but hopefully we'll -- we'll find out.
So I'll see you next Wednesday, Mr. Fox.
Fox:
Okay. Could I just say, first, thank you for -- for this. And the other thing is I wanted to mention I have no objection to staying in custody longer if we could get to the bottom of this situation.
Judge:
Well, I've already ruled that you're going to stay in custody longer --
Fox:
No.
Judge:
-- until --
Fox:
What I mean is if it's going to take the Crown a week or two weeks or even a month to find out why this hasn't been done, I'm -- I'm fine with that.
Judge:
Okay. Good. Because I really need to know that answer.
Flanders:
Thank you.
Judge:
I'm really confused by that, so I want to know. Okay.
Flanders:
Now, just because we have the time available and Mr. Fox here, if he has more submissions involving that point.
Judge:
No. No, no, no, no, no.
Flanders:
I don't know if it makes sense to continue.
Judge:
He's had a very significant portion -- part of his argument which is, judge, it's going to be very hard to prove that I'm the person because I was in custody and sometimes the website appears to be down. I don't know that answer, but what I do need to know is how is it possible that in six years of prosecutions nobody has bothered to try to take it down. And I'm certain, certain, certain knowing Madam Justice Holmes as well as I do, and now she's Associate Chief Justice Holmes, that she wouldn't have asked why the authorities can't do this to protect the complainant. So I need to know that answer.
Flanders:
Yes.
Judge:
All right. Thank you. Okay. I'll see you -- even though you know how much I hate video, Mr. Fox, I'll see you next Wednesday by video.
Fox:
Thank you.
Judge:
Thank you. And, Madam Registrar, I'm going to ask you to send a direct message --
Flanders:
Actually, Your Honour, Mr. Sheriff is pointing out we still haven't dealt with this book of authorities, whether he'll be taking this back.
Judge:
Oh. Leave it with the Crown for the time being, sir.
Fox:
Okay. I do just want to point out, though, that the Tab 7 that he had concern about looks like it's all just stuff that's on the website anyway.
Judge:
Sir.
Fox:
No, I understand.
Judge:
You know what? I'm not going to get into it now. Give it back to him. You'll see it next time you're here in person.
Fox:
Right. Thank you.
Judge:
Okay.
Flanders:
Thank you, Your Honour.
Transcriber: A. Pinsent