Transcript of Trial Proceedings (2023-03-28)
PDFCourt of Appeal CA49120
244069-10-BC
Vancouver Registry
In the Provincial Court of British Columbia
(BEFORE THE HONOURABLE JUDGE OULTON)
Vancouver, B.C.
Marche 28, 2023
REX
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
BAN ON PUBLICATION 486.5(1) CCC
244069-10-BC
Vancouver Registry
In the Provincial Court of British Columbia
(BEFORE THE HONOURABLE JUDGE OULTON)
Vancouver, B.C.
March 28, 2023
REX
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
BAN ON PUBLICATION 486.5(1) CCC
Crown Counsel: Tara Laker
Ryan Elias
Ryan Elias
Appearing on his own behalf: Patrick Fox
INDEX
- WITNESS FOR THE CROWN
- JOHNNY LAM
- SUBMISSIONS FOR ACCUSED BY THE ACCUSED
- SUBMISSIONS FOR CROWN BY CNSL R. ELIAS
- REPLY FOR ACCUSED BY THE ACCUSED
- SUBMISSIONS FOR ACCUSED BY THE ACCUSED
- SUBMISSIONS FOR CROWN BY CNSL T. LAKER
- REPLY FOR ACCUSED BY THE ACCUSED
- SUBMISSIONS FOR ACCUSED BY THE ACCUSED
- SUBMISSIONS FOR CROWN BY CNSL T. LAKER
- SUBMISSIONS FOR CROWN BY CNSL T. LAKER
EXHIBITS
- NIL
RULINGS
Vancouver, B.C.
March 28, 2023
Elias:
Your Honour, if we could call the first matter on your list, the Patrick Fox continuation.
For the record, it's Elias, E-l-i-a-s, first initial R. I use he and him pronouns please. And I'm here with my colleague, Ms. Laker, with the Provincial Crown.
Mr. Fox is here in the courtroom and as I think you heard, I believe he wants to stand down for a little bit. We just provided him some -- some information that he wants to --
Judge:
Yes --
Elias:
-- digest.
Judge:
-- that's what I wanted to confirm, since I stood down to allow some other things to happen in the last half hour and then I wanted to make sure.
So, Mr. Fox, what -- it's that you just received this disclosure?
Fox:
Yes, this is related to some of the requests I submitted from the previous appearance and I just literally received this upon arriving in the courtroom this morning.
Judge:
I see, okay.
Fox:
But this request to stand down is separate from the previous one. The previous one was because --
Judge:
No, I understood.
Fox:
Oh.
Judge:
And I -- it was communicated to me --
Fox:
Right.
Judge:
-- and I said that's fine. I'm just saying I didn't come into the courtroom to canvass, but at this point, I just wanted to make sure that we're -- that I'm using the court time appropriately.
So, you just received this disclosure; you want half an hour to look at it. Crown agrees with that. Yes, okay. I'll stand down. We'll come back at 10:30.
Fox:
Thank you.
Sheriff:
Order in court, all rise.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
Judge:
Please be seated.
Elias:
And I see Mr. Fox at the door there.
Judge:
All right. So, counsel had previously introduced themselves and Mr. Fox is here.
We're -- we're ready to proceed now with the continuation of the trial?
Elias:
Yes, it sounds like we're ready with -- for Mr. Lamb --
Judge:
Thank you.
Elias:
-- he's outside.
Judge:
All right. Mr. Lamb, if you could take the witness stand again. And it's a different day, you're still being cross-examined, but I'll ask you to be affirmed again.
Lam:
Sure.
Judge:
Or under oath, I --
Lam:
Under -- under oath.
Judge:
Okay. If you would step forward and allow Madam Clerk.
JOHNNY LAM
a witness called for theCrown, sworn.
Clerk:
Please state and spell your first and last name for the record.
Lam:
Johnny Lam, J-o-h-n-n-y, last name is Lam, L-a-m.
Judge:
Thank you, Mr. Lam. You can have a seat if that's what you'd like to do.
Fox:
Good morning, Mr. Lamb.
CROSS-EXAMINATION BY THE ACCUSED, CONTINUING:
Fox:
Are you familiar at all with the Hunchly software?
Lam:
I am not.
Fox:
Oh. Are you aware of whether the Hunchly software is a desktop application or client/server?
Lam:
I am not.
Fox:
Are you aware of when a user runs the Hunchly software, whether it's running on their local machine or remotely?
Lam:
It's running on the server -- remotely on the server.
Fox:
Are you guessing that? Or is that something that you know for certain?
Lam:
I'm not sure.
Fox:
Hmm. Sorry, I need a moment. These questions were -- or the responses were not what I was anticipating.
Judge:
No, take a bit of -- take some time.
Fox:
And if the witness has no knowledge of the Hunchly software and how it works, then that has a significant impact on what I would ask him.
Judge:
Take a minute or so to look at the questions you wanted to ask Mr. Lam and . . .
Fox:
When you had testified previously, you had made reference to a server with the name Haida [phonetic]?
Lam:
Mm-hmm.
Fox:
Do you know, is that server configured as a file server or some other type of server?
Lam:
I don't know that because I don't configure that server.
Judge:
I'm sorry, your voice went down. I didn't hear that, Mr. Lam.
Lam:
I'm sorry. I said, I don't know because I don't -- I didn't configure that server, so . . .
Judge:
You don't know --
Fox:
Right, right.
Judge:
-- because you didn't configure that server.
Lam:
That's right.
Judge:
Okay. Thank you.
Fox:
Okay. Do you have any knowledge of whether that server provides any packet forwarding?
Lam:
I don't know that. Sorry, I don't know that. Do you -- I don't know if you want to turn the mike down.
Judge:
That will not amplify your voice.
Lam:
Oh.
Judge:
So --
Clerk:
Helps to record it.
Judge:
-- it does record it --
Lam:
Okay.
Judge:
-- however.
Lam:
Sure.
Judge:
It's more just that I --
Lam:
Okay.
Judge:
-- your voice has a tendency to go down. So, just remember to keep it up.
Lam:
Okay.
Fox:
So, then do you have any knowledge of when a user, such as Catherine Meiklejohn runs the Hunchly software, in order to perform her duties, if the instance of the Hunchly software is running on her local desktop?
I know I asked a more general version of that question earlier, but now I'm asking you --
Lam:
Right.
Fox:
-- specifically about Catherine Meiklejohn.
Lam:
Right. No, I don't know that.
Fox:
Do you have any knowledge of the flow of the packets from where the Hunchly software is being run until they get to the internet? For example, which routers or devices those packets would be going through from the local Hunchly installation until they get out to the internet.
Lam:
I don't know the exact path.
Fox:
Well, right. And of course, I'm assuming it's fair to say that if you don't know where the packets are originating from, whether they're on Ms. Meiklejohn's machine or some other machine, you can't possibly know the path that they would be taking to get to the internet.
Lam:
That's correct, yeah.
Fox:
Did -- did anyone advise you or tell you to say, when you testified today, that you have no knowledge of these matters?
Lam:
No.
Fox:
Do you have any -- wait, sorry.
Given the witness' responses so far, that he has no knowledge of those initial matters, I don't see how I can really proceed with any of the other questions --
Judge:
Okay. Well --
Fox:
-- because they were all kind of dependent on him having knowledge of that.
Judge:
-- okay, but you want -- if you -- again, if you want to take a minute and look at your notes and see if there's any other areas of questioning, go ahead.
Fox:
Okay.
Fox:
Do you have any knowledge of why there would be no records in proxy server access logs on Chancellor 2 [phonetic], that we had looked at previously that were entered as an exhibit here? Do you have any knowledge of why there would be no records of anybody accessing, or attempting to access the desicapuano.com website on these days?
Lam:
I do not.
Fox:
Okay. When -- do you recall that when you were here on March 7th and you had testified primarily on direct? You were answering questions for the Crown. Do you recall the testimony that you had provided at that time?
Lam:
Yes.
Fox:
Okay. And do you recall testifying that the Hunchly users go through -- initially, you had testified that the Hunchly users go through the Chancellor 2 proxy server to access the internet?
Lam:
Yes.
Fox:
Okay. And then shortly after providing that testimony, do you recall that the Crown had asked the court if we could stand down and then we took the morning break?
Lam:
Yes.
Fox:
And do you recall that when the court had stood down, the judge had left the courtroom first? Do you recall what happened immediately after that?
Lam:
Yes, I went outside to the waiting area.
Fox:
Okay. And --
Lam:
Mm-hmm.
Fox:
-- did Mr. Elias and Ms. Laker go with you outside?
Lam:
Yes.
Fox:
And without getting into any details of what might have been discussed, do you recall any -- any discussion about the testimony that you had just provided about stating that Hunchly users go through the Chancellor 2 proxy server?
Lam:
I was to verify with -- with the [indiscernible]
Fox:
Okay. And was the Crown that requested that you verify that?
Lam:
I wasn't sure, so I had to -- I had told the Crown that I had to verify with my technicians at work.
Fox:
And then while you were out there, while we were stood down, did you make any phone calls or contact -- contact anybody?
Lam:
Yes, I used -- I used my phone to call one of my senior technicians --
Fox:
Okay.
Lam:
-- to confirm --
Fox:
So --
Lam:
-- yeah.
Fox:
Okay. So, that would be somebody at the VPD, someone that you work with at the VPD?
Lam:
That's correct, yeah.
Fox:
And you had asked them about the network topology in that respect, about how it's configured?
Lam:
The only question I asked was with -- whether or not the traffic from the Hunchly software --
Fox:
Mm-hmm.
Lam:
-- exited through the proxy or through that -- over internet connection.
Fox:
Okay. But would that be based on the user account of the person that's using the Hunchly software, or would it be based on the IP address of the host that the Hunchly software is running on? Or would that be based on the Hunchly software itself somehow?
Lam:
I didn't ask those questions.
Fox:
Right. Before you came and testified on March 7th, do you recall how many times you had communicated with the Crown, specifically, either Mr. Elias or Ms. Laker regarding this matter?
Lam:
Just one time.
Fox:
And do you remember when that was, approximately?
Lam:
I believe it was the day before --
Fox:
Right.
Lam:
-- just to prep me for being interviewed.
Fox:
Right. Now, when you say to prep you for being interviewed, what do you mean by prep you?
Lam:
Because I'm not a sworn member, we're not trained to be providing witness statements. So, it was just to go over the -- show me the room, like, the courtroom and the scenario.
Fox:
And did they ask you any questions at that time about some of these issues that would be discussed? For example, the Hunchly software and whether or not they Hunchly users go through any particular gateways or routers?
Lam:
Yes and talking about the logs as well.
Fox:
Right, right. And did you tell them, at that time, that the Hunchly users don't go through the proxy server?
Lam:
Yes.
Fox:
Okay. So, you had told them at that time, the day before you testified, that the Hunchly users do go through the proxy server, but then, when you came and testified, you stated that they don't go through the proxy server. But then you called the office to verify?
Judge:
I think -- isn't it the reverse?
Fox:
Well, we're -- we're speaking first about the discussions that he had with the Crown before he came to testify.
Judge:
Okay. So, if you could just rephrase your question, because I remember Mr. Lam's testimony and how --
Fox:
Yes.
Judge:
-- in chief, he changed something.
Fox:
Yes.
Judge:
And now you're asking him about the interview with the Crown. If you could just rephrase that last question. It wasn't --
Fox:
Sure.
Judge:
-- clear to me.
Fox:
So, to make sure that I have this chronology correct, my understanding is that what you're saying is that the day before you came to testify, when you spoke with the Crown, you had told them that the Hunchly users don't go through the Chancellor 2 proxy server; is that correct?
Lam:
I said, yeah, [indiscernible], yeah.
Fox:
Right. And then on the next day, you came and testified and before we stood down, you testified that the Hunchly users do go through the proxy server; is that also correct?
Lam:
Yes, I said that. But that was a mistake, yeah.
Fox:
Right.
Lam:
Yeah.
Fox:
And then we stood down --
Lam:
Mm-hmm.
Fox:
-- and then you made a phone call to the office and spoke with someone else about it there. Then you came and testified that you were mistaken and that the Hunchly users don't go through the proxy server.
Lam:
Yes.
Fox:
Okay. And if I understand this correctly, you're now saying that you actually have no knowledge about how that's configured, or how that's set up, or how that works.
Lam:
No, that's why I called to confirm, yeah.
Fox:
Right. But what we're talking about then would be hearsay; right? I mean, it's not your own firsthand knowledge of how it works, but rather, what somebody else at the office had told you.
Lam:
Yes.
Fox:
Okay. So, it seems to me -- and correct me if I'm wrong, but it seems to me that someone else in the VPD, in the IT department, actually has the knowledge of these matters, not yourself.
Lam:
That would be correct, yeah. I was called for the logs.
Fox:
Right, right.
Lam:
Yeah.
Fox:
And the reason I had requested your testimony was because you were the one, specifically, that had provided the logs -- or that had ran the query on the logs and provided the logs to Detective Meiklejohn. That's why I requested you.
But, given that the position is now that you have no knowledge of these matters whatsoever, I don't believe that there would be any further questions that I could ask. Really, these questions should be directed to the person in the VPD's IT department who actually has this knowledge.
Judge:
Okay. So, you're -- you're not asking a question there, Mr. Fox. And it's not accurate to say Mr. Lam has knowledge whatsoever. There's certain areas that you want to question him about that he's answering in ways that perhaps you --
Fox:
Okay. My --
Judge:
-- weren't expecting.
Fox:
-- my apologies. Let me rephrase that then.
Fox:
Given the information that I've been provided through your testimony this morning, just now, regarding your level of knowledge, or lack there of, of the Hunchly software and the Hunchly users, it is my understanding that -- that's not really a question, sorry.
Judge:
No, you can suggest something to a witness --
Fox:
Mm-hmm.
Judge:
-- in the form of a question. Like, you -- you say to him, it's my understanding that this. Do you agree with that or not?
Fox:
Right.
Judge:
So, if you want to take a minute, if that's the way that you'd like to ask Mr. Lam a question, that's acceptable.
Fox:
Honestly, at this point, Your Honour, I'm of the opinion that the person who should be testifying would be whoever it is in the IT department that has this information. And I'd assumed that Mr. Lam had the information and that that's why he was the one who ran the query and provided the information to Detective McElroy and it certainly seemed, when he testified three weeks ago that he had the information, but it's becoming apparent now that he doesn't have the information that I would be seeking, the information that would be relevant here. And so, I don't -- I don't see the point in pursuing further questions with Mr. Lam.
Judge:
Okay. Well, again, if you need to recalibrate and look at your notes and see if there's any other areas of questioning, otherwise, we can move on, see if Crown has any re- examination questions and let Mr. Lam go. But it involves sort of on the spot looking at your notes and so, I want to give you a minute or two of you need that, to think about whether you have any other questions for Mr. Lam.
Fox:
I don't believe I would require additional time. I've had sufficient time to contemplate while I was downstairs.
Judge:
Okay.
Fox:
What I would like though, at some point, would be to have a few moments to speak with the Crown about this, but after Mr. Lam would be excused and --
Judge:
No, but that's -- okay, that's a separate issue. So, you're -- you're -- you don't have anymore questions for Mr. Lam --
Fox:
That is correct.
Judge:
-- that's correct? Okay.
Any questions in re-examination for Mr. Lam?
Elias:
No, Your Honour, thank you.
Judge:
All right. Thank you very much, Mr. Lam --
Lam:
All right.
Judge:
-- you're excused.
Lam:
Thank you.
(WITNESS EXCUSED)
Elias:
Your Honour, I've just -- I've just asked Ms. Laker to pass along to Mr. Lam that he should wait around for a few minutes, just in case anything arises from the conversation where I might want his --
Judge:
Oh, I see.
Elias:
-- his further input.
Judge:
Okay. So, Mr. Fox had asked to speak to Crown. That would be an off-the-record conversation he wants to have with him before continuing.
Fox:
I mean, I don't -- I don't see that it necessarily needs to be off the record. I just don't want to waste the court's time with it.
Judge:
Well, it just seems to me perhaps -- I won't go far. Why don't you discuss and then if --
Fox:
Sure.
Judge:
-- I'm needed, I'll come back in and we can continue with the case.
Fox:
Okay. Thank you.
Judge:
Okay? So, I'll just stand down briefly, I'm -- I'm going to remain close by, as I said.
Sheriff:
Order in court, all rise.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
Judge:
All right. So, I came back in because even though we had a period of standing down this morning, I know that Madam Clerk, Mr. Sheriff didn't have their break and I understand that you're still talking.
Laker:
Yes.
Judge:
So, I thought we'll take the morning break; we'll allow you to continue talking. Is there likely to be an application, or you -- you need to talk a bit more and see?
You need to talk a bit more, Mr. Fox?
Fox:
It's -- it's my understanding there is likely going to be an application, yes.
Judge:
By you.
Fox:
Yes.
Judge:
Okay. All right. We'll take the break now, returning at --
Fox:
Possibly two applications.
Judge:
Okay. All right. Returning at 11:30.
Sheriff:
Order in court, all rise.
(PROCEEDINGS ADJOURNED FOR MORNING RECESS)
(PROCEEDINGS RECONVENED)
Judge:
Please be seated.
Elias:
Your Honour, sorry for -- sorry for keeping you waiting.
Judge:
No, no, that's fine.
Elias:
Recalling the Fox matter, of course.
I believe Mr. Fox likely has two different issues he wants to canvass. One involving disclosure, as I think you probably anticipated. The witness -- possibly the production of the witness, the senior technician Mr. Lam referred to in his evidence. I think Mr. Fox will have an application about that. And there's also an issue with the search warrant that he raised with Ms. Laker that I think he may want the -- to bring -- to bring up as well.
So, I'll let him say his piece about those two.
Judge:
An issue about the search warrant?
Elias:
Yes.
Judge:
Okay.
Elias:
I may be wrong, but I think that's -- I think that's what Mr. Fox wants to -- wants to discuss.
Judge:
Okay. Thank you.
Mr. Fox?
SUBMISSIONS FOR ACCUSED BY THE ACCUSED:
Fox:
The first matter, about the witness -- I was thinking about this while I was downstairs and I'm a little torn on this because from my perspective, the sooner I get this over with and get out of custody, the sooner I can leave the country and get on with my life.
But at the same time, it is my belief that these proxy logs constitute physical, tangible evidence that the testimony provided by Ms. Meiklejohn and Detective McElroy is either false, or they were just mistaken about what they were accessing. And it seems to me that it's -- it's critical to my defence to be able to show whether or not somebody actually accessed the website from VPD's network on that day and the proxy logs would seem to show that nobody accessed the website.
And I'm very, very, very troubled with Mr. -- or about Mr. Lam's testimony today and his claims that he had no knowledge of certain technical aspects of how the software works, or how their network is configured, in light of the testimony he had provided three weeks ago where he was testifying that he did have knowledge of some of these matters.
So, on the one hand, I don't want to delay this by requesting further adjournments to get a witness who does actually have knowledge of these matters. On the other hand, I don't want to risk being found guilty of something based on what I'm confident is false testimony that was provided by some of the Crown's witnesses.
I know I can't ask the court for -- well, I certainly wouldn't ask the Crown for guidance on the matter. But my initial thought would be not to delay this with an adjournment, to request -- like, I'm also troubled by this idea that the Crown knew where I was going with these proxy logs and they spoke with Mr. Lam a couple of -- or sorry, they spoke with him at least that one time. If they knew he didn't have the knowledge that I was seeking, like, why wasn't this brought up sooner, so that I could have requested somebody else from VPD to come and testify?
I guess really the first thing -- to an extent, I think that what I would want to request would be a mistrial because it seems that things are just snowballing way out of hand with this trial and it seems to me that some of these are very simple, easy matters. Like, the evidence is very clear on them about whether or not somebody from VPD's network accessed the website on that day.
Sorry, I'm trying to think, as I stand here, about what it is that I should be asking for or how I should be proceeding on this.
Part of me is thinking -- well, we could just proceed and -- with the arguments, the closing submissions and I could say in the closing submissions that, based on the proxy log, it shows that nobody accessed the website. But then there is some suggestion that maybe it's because the network is configured a certain way and I could argue that we should discount Mr. Lam's testimony. Because on the one day, he testified that he had knowledge that it's configured this way and that's why nothing shows up in the proxy logs. But then he comes today and claims he has no knowledge of how it's configured and that he wasn't involved in configuring those servers and he really doesn't know.
Sorry.
Judge:
No. Well, first of all, I would -- I would say -- I don't know if you're formally bringing an application for a mistrial but there's a very high burden for a mistrial and it's a fatal wounding of the trial process and it would -- if it were granted, it would result in the trial being reset again and bearing in my mind my trial management powers, first of all, I don't think there's been a fatal wounding of the trial process, which is the most important part. But also, the implications of that, I think, are -- wouldn't be fair to the process, to the Crown, to you, to anybody.
If I thought there'd been a fatal wounding, that would have to be dealt, but really, the test hasn't been met.
What -- what is happening is there was certain disclosure that you sought back in the pretrial conference portion of this matter and it was provided and it was provided because I thought that there was something I wanted to allow you to explore.
Now, as the evidence has come out, it seems that that -- that evidence doesn't -- it isn't what you expected. So, then the question becomes what to do about it.
Fox:
Well, on the matter though of the evidence not being what I had expected, I would like to point out that when Sergeant Shook testified, he -- he testified that all users on the VPD network do go through the proxy server and when Mr. Lam testified, first he testified that the Hunchly users do go through the proxy server, but the Crown immediately, realizing that completely destroyed their allegations against me on those matters, requested a recess, stepped outside and spoke with him in private. Then he came back in and changed his testimony.
Judge:
Okay. So, this is -- sounds like a matter for argument, but I -- but I have to correct you because -- a few things.
When a witness is in chief, it's different than being in cross-examination. You -- you'll recall, in this trial, there was what I believe was an innocent mistake, but a witness who was in cross-examination spoke to the Crown. That should not have happened because judges remind witnesses not to discuss the case or their evidence when they're under cross-examination.
Mr. Lam was an examination in chief and you asked him about that. First of all, Crown was under no rule or prohibition to talk to their witness when the witness is in chief, but you did ask him that and he said no, I told them that I wasn't sure, that I needed to check.
So, just to -- I think it's important because to understand, first, they're allowed to talk to their witness at that stage of proceedings. And second, the evidence I heard was that Mr. Lam was the one who brought it up to them and then went and checked something. And there's nothing untoward about that. Okay.
Fox:
Okay. Then -- then I guess I would have to say, as much -- as much as it pains me to do so, I would have to say that I believe the only way that I could get a fair and reasonable defence would be for somebody who has knowledge of these network issues to be able to clarify or provide definitive testimony about whether or not these proxy logs mean that somebody from the VPD's network actually attempted to access the website on that day.
So, yes, I would say then I would ask for an adjournment for somebody from the VPD who does have knowledge of this matter to be able to testify about this.
And it's my expectation the Crown is going to say that this is really just a fishing expedition but I would disagree with that because the proxy logs show that there is some evidence supporting what I'm saying. I'm not just fishing for evidence. What I'm asking for is somebody to confirm definitively, one way or the other, whether or not these logs actually prove what I'm saying, or what I believe they prove.
Judge:
Well, what -- what do you say the proxy access logs prove?
Fox:
I say that they show -- they prove that nobody on the VPD's network made any attempt to access the website -- or access anything at desicapuano.com on the dates in question, May 16th and 17th.
Judge:
I mean, that's not my understanding of Mr. Lam's evidence. He -- he -- again, I haven't looked back to review it, but from memory, he was explaining that the proxy access logs were speaking about running security checks on websites that were, as I understood it, being accessed, to make sure there was no malware, that there was -- there was nothing that would harm. Basically -- I'm trying to think of the technical words, which I don't know. But basically, that they represented a scanning, for security purposes, of websites that were being accessed.
Fox:
Yes.
Judge:
Right. So . . .
Fox:
But that would -- that would mean that every website that would be accessed, through the proxy server, there would be a log entry to reflect -- sorry, to reflect that in the report that was provided by him.
Judge:
So, okay, when you requested Mr. Lam, you'll recall that Crown said we're actually finished, we want to close our case and I said, well, you know, perhaps Crown could consider whether they would present Mr. Lam and they did that. And you were able to cross-examine Mr. Lam.
Fox:
If --
Judge:
You know, at a certain point, you know, if you have a defence you want to put forward, it would be up to you to put forward that defence. I think, in my asking the Crown if they would consider doing that so you could ask your questions, that was to give you some latitude. But at a certain point, Crown is -- Crown could say, we want to close our case and then it's over to you, Mr. Fox, what do you want to do? Are -- are you going to testify? Are you going to call any witnesses?
Fox:
Okay. And if I make speak completely frankly for a moment, I will say that I don't believe for one moment that Mr. Lam's testimony today that he had no knowledge of these certain matters, I don't believe that that was truthful at all. I believe that he does have the knowledge of these and I believe that he was instructed to just say that he didn't have the knowledge. But I can't prove any of that, so, I'll let that go.
If the Crown were to close its case, would I have the opportunity to attempt to subpoena or get somebody from the VPD's IT department who would have knowledge about these matters to come and testify about this?
Judge:
Well, I think that's something that you should get legal advice about, which I shouldn't be giving you.
Fox:
Right.
Judge:
There may be --
Fox:
Well --
Judge:
-- duty counsel in the building, but it -- but -- but perhaps you wouldn't necessarily know -- I can say this just as information, not advice, it seems to me what you're wanting involves an application for disclosure, as well as potentially a subpoena. And so, that would come to the trial judge to access -- to access the matter from all angles and decide whether that's an application for further disclosure that I would grant.
So, we're not -- I don't know for sure whether Crown is closing its case. I don't know, perhaps that is something that -- that I should know now and Mr. Fox should know.
Elias:
Yes, Your Honour, we are inclined to close our case at this stage. We're -- we're certainly content with the Crown evidence.
Judge:
Okay. So, you said inclined to close your case. Is that -- are you -- is Crown leaving it open? Is Crown -- I haven't heard your reply yet to what --
Elias:
Yes.
Judge:
-- Mr. Fox is requesting.
If I can summarize, if I've understood. correctly, Mr. Fox, are you seeking -- are you seeking to adjourn this matter? Are you seeking further disclosure? Or are you going to argue based on the evidence that's already been presented? That's the choice.
And if you want to speak to duty counsel before deciding that, you can do that.
I think for -- I want to be very clear what's being requested, so I can answer as clearly as possible.
Fox:
Yes, I am requesting an adjournment for the purpose of seeking the testimony of somebody from VPD's IT department who would have knowledge of these specific matters.
Judge:
Okay. But there's -- as I said, you -- you would -- you don't know -- first of all, you -- you're making a disclosure request; right?
Fox:
Would --
Judge:
You don't know that person would be.
Fox:
That is correct. I don't know the identity of that person. Would that be a disclosure request, to first identify who the person is, or?
Judge:
Well, this is what I wanted you to talk to duty counsel about, but it sounds to me as though it would be.
You're in custody. You've been in custody 10 months -- more than 10 months, if you want to make that application and further delay the trial, it has to be for something -- first of all, it has to have merit and then it has to be for something tangible. And it seems to me, at this point, you don't have that. You don't know who this person would be. You don't know if they could give you the evidence that you're hoping to obtain from a witness.
So, that's why I'm saying --
Fox:
Okay.
Judge:
-- seems to me that disclosure comes before adjournment. And the disclosure is something that the trial judge has to decide, based on everything.
Fox:
Right.
Judge:
Is there -- is it fair, at this point, to adjourn the trial for this disclosure? So, I have to be satisfied that it's likely relevant to your defence.
Fox:
Okay. Then I would say, yes, I agree that I would be submitting a disclosure request and then, from that, a subpoena, probably.
Judge:
Okay. And do you want to talk to duty counsel though, before you do that?
Fox:
No, I don't.
Judge:
You sure?
Fox:
I've spoke with duty counsel before --
Judge:
Okay.
Fox:
-- and I don't believe that it would really benefit me or help me.
Judge:
Okay. All right. So, I think then Mr. Fox is seeking disclosure of a witness who can -- from the IT department who can testify as to how proxies --
Fox:
Well, ultimately, to testify about whether or not the packets from the Hunchly users, when they use the Hunchly software, whether those packets go through a proxy. Actually, not even about that. Whether or -- okay, whether or not the Hunchly users go through any proxy server which would have been included in this report that was generated. It wouldn't necessarily have to be the same proxy server, but . . .
Judge:
So, whether or not Hunchly users go through any proxy server?
Fox:
Well, any proxy server that would have been included in this report that was provided to me previously. Because remember, Mr. Lam had testified that the Splunk software consolidates information from multiple machines and so, it wouldn't have to be specifically the same -- like, it wouldn't have to be Chancellor 2, but as long as it was any one of the machines that would be included in the Splunk configuration.
Judge:
All right. Well, I think though -- so, that's your question, whether or not Hunchly users go through any proxy servers to access the internet?
Fox:
Yes, but also it is my -- it is my very confident belief that the Hunchly -- the activity of the Hunchly servers is logged. Maybe not necessarily in the same proxy server, but it is logged somewhere and I would think that it would have to be because this is evidence in criminal trials. And so, I would be seeking testimony regarding that as well.
But I would assume it would be -- the same person would have this knowledge or this information and so, I would hope that that person, when they would come to testify, would be able to testify about those two matters.
Judge:
Okay. And to be clear, the two matters, whether Hunchly users go through any proxy servers and whether there are logs of the activity of Hunchly users?
Fox:
Yes, correct.
Judge:
Okay. And so, that -- that's -- that's it, that summarizes what you're looking for?
Fox:
With respect to that matter, yeah. That's independent from the search warrant issue which we'll get to after.
Judge:
All right. And Crown, first of all, with respect to your case?
Elias:
Yeah, we're -- we're ready to close, Your Honour.
Judge:
Okay. So, Crown has closed its case.
And Crown's position on this application for further disclosure?
SUBMISSIONS FOR CROWN BY CNSL R. ELIAS:
Elias:
Your Honour, I appreciate what Mr. Fox is asking for and this is sort of a path we have -- we have started down in the evidence. But the Crown's position, at this point, is that what he seeks is it simply isn't -- isn't relevant.
We have evidence from -- from Mr. Shook and Mr. Lam about first, the question of what's maintained on these logs and how -- how information rolls over, over time, and so there's no -- no way to be certain what should or shouldn't be reflected in the proxy log that was captured in October.
So, if Mr. Fox is seeking dispositive evidence that a user did or did not access the website on May 16th, the evidence, as we -- as I understand it, just isn't going to be there to show us either way.
Judge:
Now, is that based on your review of the evidence that's already been presented in this trial? And if so, could you indicate to me where?
Elias:
Yes, I think it was Mr. Lam's evidence. I'd have to -- I'd have to go back through my notes, that -- that what's reflected on the log that he provided is only security entries scanning -- scanning a handful of files and that there likely were, at some point, logs that would have shown up on this, logging attempted access by the VPD or that resulted in those security scans, but that those logs have likely been written over, or -- or lapsed either way. But they're not -- they're not maintained forever. So, he simply couldn't comment on what might have been -- what might have been logged five months earlier. Because this isn't something I inferred, that -- that they normally track as closely as we're now -- as we're now tracking it in this case.
And I believe -- I believe that's Mr. Lam.
Judge:
I'm looking at his -- my notes of his evidence: We only keep a month or two of access logs before it's rolled over.
Elias:
Yes, precisely.
Judge:
Okay.
Elias:
So, we have some -- I'm not sure if he used this term, but some breadcrumbs in the logs for security scans that were performed, but not the logs of the actual access attempts and there's no reason to believe that those -- those exist anymore. They're -- they're gone.
The second question is the issue of whether Catherine Mickeljon's access would have been reflected in this -- in this log in the first place, whether it potentially goes through a server that -- that is collect -- that -- that the logs of which would have been collected from the search or whether it -- whether it has another route to the internet that wouldn't have been reflected in this log.
I think it would be fair to say that his evidence on that was -- was equivocal, as Mr. Fox explored with him in cross-examination, he said one thing, consulted with a coworker, said another thing, but ultimately, it seems pretty clear that Mr. Lam just wasn't sure either way.
Judge:
Well -- well, I think, in fairness, though, his own evidence, the weight of which falls to be determined but he said one thing, then he corrected himself and he said he'd been mistaken.
Elias:
Yes.
Judge:
His own evidence was that Hunchly users would not go through --
Elias:
Yes. Yeah. I agree.
So, I just want to ask Mr. Fox something before I continue, but I'm -- oh.
Fox:
I'm -- I'm sorry. I just wanted to say, wasn't it other way around? His own evidence was that the Hunchly users did go through the proxy, but then he spoke with somebody else and was advised by them that they didn't. Because his first testimony was --
Judge:
Right.
Fox:
Okay.
Elias:
Yes.
Judge:
But he said -- okay, what I heard, if I could summarize it, is in his interview he told the Crown the Hunchly users don't go through the proxy. Then he came to court and he said they do. Then he thought about it and he called someone and he said, actually, I was mistaken and he went back to what he first said; right? That they -- they don't go through the proxy logs.
Fox:
Yes, yes. But I was basing it only on his testimony, not on his interview with the Crown before that because we really have no proof that that interview even really occurred and that he said that in the interview, like, there's no recording of the interview.
Judge:
Well, what we have in evidence is that that was his testimony under oath.
Fox:
Right.
Judge:
That that was what his discussion was with -- with Crown.
Elias:
So, Your Honour, what I was just discussing with Mr. Fox is --
Judge:
Mm-hmm.
Elias:
-- the disclosure we provided this morning included a summary of some conversations that Ms. Laker and I had with the VPD that I think encapsulate what a VPD witness would ultimately be able to testify to.
Judge:
Oh, I see.
Elias:
Which Mr. Fox -- Mr. Fox is leery about me giving it to you because it's -- it's unsourced information. I spoke to a couple different VPD officers about it and I haven't told him -- I didn't provide their names. So, I'm --
Judge:
But it -- it seems to me that it's relevant to my deciding a disclosure application if there -- to the extent that it's -- you know, I recognize you're not sourcing it, it's your understanding --
Elias:
Yeah.
Judge:
-- but --
Elias:
With -- with those caveats, in my -- in my view, it's appropriate for you to look at and sort of -- to understand what -- what we expect may come of such a witness if they were called.
Judge:
Right. I don't necessarily need to look at it, but in terms of thinking of likely relevance or whether -- what Mr. Fox is seeking is even available, it seems to me important that I -- that I know this.
Elias:
Yeah.
Judge:
You're objecting to that, Mr. Fox?
Fox:
No, no. I was just going to ask if the Crown could at least say whether the parties he spoke to were technical people that worked in the IT department or nontechnical people because that would make a big difference in these matters.
Like, from the wording that's used in this, I get the impression that they weren't IT people.
Elias:
But they were, Your Honour. This is -- these are my summaries, so, I'm not an IT person, so, I apologize to Mr. Fox if I -- if I phrased things in way that he wouldn't expect from someone who knew more deeply than I do what they were talking about.
I spoke to two different members from the cyber crimes unit and my understanding is that they went away and made inquiries elsewhere in the VPD and came back to me to give information. So, I don't know exactly where all this comes from.
But my overall understanding of -- this was -- to try to figure out how the Hunchly server works and how it's -- or Hunchly access to the internet works, is that -- is that there are no access logs the way it's set up.
The reports that Hunchly generates are the evidence of what Hunchly users saw. That's the purpose of the software, is to generate these screen captures that say what was accessed [indiscernible].
It appears that it's a -- it's a VPD server, but -- and it's run on -- runs on VPD infrastructure, but it's not -- because it's used for -- for these public opensource searches and I think some covert searches, it's a different -- a different server entirely. It doesn't, I'm told, go through the ordinary VPD proxy server such that it would be reflected in the log -- in the proxy server log that we -- we produced and that the VPD is reluctant to provide a lot of information about because, in their view, it's a security issue because I think -- I infer that it's used as a -- as a covert investigative tool, to some extent, this -- this server. So, that's -- that's the information I have.
The thing I want to focus on is that I'm told that these logs simply don't exist. The logs of May 16th access to a certain website through -- through whatever -- whatever firewall or proxy server the Hunchly users use isn't logged in the way that Mr. Fox is hoping they are. So, there won't be -- there won't be evidence either to corroborate or contradict Catherine Meiklejohn's evidence that she accessed the website at that date, at that time.
That, combined with the uncertainly about whether anything is even retained, because the access -- access logs roll over quite quickly because this isn't -- this isn't information that's archived, in my submission, it's -- it's exceedingly unlikely that anything -- anything of relevance could -- could come of calling additional VPD witnesses to testify about this. So . . .
Nor do I have at my fingertips the name of a particular person who would be -- who would be an appropriate witness. That's something that we would need to look into further if -- if you were inclined to direct that we make that disclosure.
Just one moment. I want to . . .
And Ms. Laker -- Ms. Laker just pointed made a good point to me, which is that Crown is also perfectly content to admit there are no logs of this sort, if that's helpful to Mr. Fox. So, there -- admit that the absence of this corroborating -- this corroborative evidence that he thought might -- might exist. So, I know he's looking for evidence that contradicts what -- what the Crown witnesses have said, but if there's admission we could make along those lines that would assist, we'd be happy to make it.
Judge:
Okay. All right.
Fox:
May I reply to just two points very quickly?
Judge:
Yes, go ahead.
REPLY FOR ACCUSED BY THE ACCUSED:
Fox:
With respect to the issue of the rollover of the logs, I would point out that if it was a matter of the logs rolling over and that's why there's no record of them, then these references to Desi Capuano [indiscernible].com also would not have been found. Like, the fact that those log entries still existed means that every other log entry from that date should have also still been in the -- in the logs for the respective devices: It -- it wouldn't have been rolled over already.
And so, rollover might be an issue now because more time has passed, but as of the time that this report was made, the data would have rolled over.
The other point that I wanted to bring up was that it seems very troubling or very suspicious to me that in the process of investigating things related to the internet, the VPD does not bother to record the IP address of the server that they were connecting to. And you'll recall, when I was cross-examining Ms. Meiklejohn and Detective McElroy, I asked them about that because the hostname could change at any time. You see, an IP address is associated with the computer, the hostname is associated with an IP address. But it's easy to mask a hostname on a person's local computer or with DNS on a network or something.
And so, for the police to say that they accessed the website but based only on the URL of the website that they were accessing doesn't actually prove that they were accessing the website that I was required to ensure was no longer available, which is another reason that I think that these logs are very important because the logs provide a more technical view and more reliable view because they're made by a machine, not by a person who could tamper with the information or such.
That's all. Thank you.
Judge:
What about the Crown being willing to make an admission that there are no logs?
Fox:
I would ask them to clarify a bit what they mean by that because to say that there are no logs today doesn't mean much because the logs may have been rolled over by now. I mean, it's been almost a year since this has happened. What we do know is that as of the time that this report was generated in -- on October 12th, there were some entries that contained the string desicapuano.com but not referring to the actual website desicapuano.com.
Judge:
Right. But in terms of the application before me, the logs would have to be presently available. That's a relevant point. So, if the Crown is willing to admit they're not . . .
Fox:
I would wonder, how does the Crown know that?
Judge:
Well, I mean, for the purposes of the case in front of me, the Crown's willing to make an admission of fact and you accept it, that's a fact.
Fox:
I would not be prepared to accept that without knowing what that admission is based on.
Judge:
Okay. So, what about the second application?
What I'm going to do with respect to the first one, I'm going to ask Madam Clerk if she can give me the record of proceedings with respect to this matter and give my ruling at 2:00 p.m.
But let me hear about the application with respect to the search warrant.
SUBMISSIONS FOR ACCUSED BY THE ACCUSED:
Fox:
The issue with the search warrant was -- and it came to my attention after Sergeant Shook had testified and we had gone through that whole process. It actually just came to my attention after the March 7th appearance.
In the report provided by the digital forensics unit, it made no reference to when the data was extracted from the phone. I stumbled across the information in a report written -- or a narrative written by Sergeant -- Detective McElroy which was generated or disclosed to me December 15th, I believe it was, that the data was extracted on August 18th and that corresponds with the modification date timestamp that I'd seen in some of the information that was extracted from the phone. The issue though is that the warrant was only valid for a two-week period in July. I think it was July 15th to 28th.
And so, what I'm requesting at this point, with respect to the search is that all of the information extracted from the phone and Sergeant Shook's testimony related to that be excluded because the search was executed far outside the time authorized by the warrant.
Judge:
Is Crown able to respond to that application?
Laker:
Yes, and it's a very brief response, Your Honour.
SUBMISSIONS FOR CROWN BY CNSL T. LAKER:
Laker:
With regards to and the reason for why I'm responding is because I spoke with Mr. Fox about this.
Judge:
Yes.
Laker:
And he's accurately explained to the court what his concern is.
When I look at the search warrant, it says that Sergeant McElory was authorized to have the search conducted between -- or to have it conducted between July 15th to July 28th. And what she said in her evidence was that at that point, once the search warrant was granted, is that she took the cellular phone, or the mobile phone of Mr. Fox's from the exhibit locker and then turned it over to the DFU, the digital forensic unit, on July 15th. So, it was done on that date, which then, ultimately, satisfies, in my submission, that requirement.
And from that point onwards, that is when the search has started and any resulting evidence that was obtained from that search, in my submission, is valid.
Judge:
So, your -- your position is the search began within the parameters of the search and even if it ended beyond, that's not a problem?
Laker:
Yes. Yes, and if you look at the wording in page 3 of the search warrant, it says here, which is the timing that Mr. Fox has expressed concern about, he says -- it says here that [as read in]:
This is therefore to authorize and require Detective Constable Amber McElroy or her designate to enter the said premise between July 15th, 2022 up to and including July 18th, 2022.
And then it says [as read in]:
And to search the cellular phone, the things/data and to bring them before me or some other justice or submit a report in writing in respect of anything seized.
Judge:
Okay. May I see a copy of that?
Laker:
Yes. It's an -- it's an exhibit actually. I think --
Laker:
-- it's 10. Yes.
Judge:
Exhibit 10.
Laker:
Exhibit --
Judge:
Okay.
Fox:
Which .pdf is it in? Which disclosure package? I can't remember.
Laker:
I can give you a copy too, Mr. Fox, for reference.
Fox:
No, that's okay, I have it here.
Judge:
Okay. If it's Exhibit 10, I have the exhibits.
All right. Anything -- anything further from either Crown or Mr. Fox?
Fox:
I did have something that I wanted to respond to that, but sorry, I'm just looking for my copy of the exhibit. I -- well, okay. I'm going to use that.
REPLY FOR ACCUSED BY THE ACCUSED:
Fox:
I would point out that the part that the Crown had just referred to, the wording, where it says [as read in]:
This is therefore to authorize and require Detective Constable Amber McElroy or her designate to enter the said premise between . . .
The dates, et cetera.
It seems to me that there's a bit of a -- probably a copy and paste error that occurred here. I think that was happened was this wording was just copied from some other warrant because that really doesn't seem to apply in this instance. There as no entrance to any premises or anything. They -- they seized the devices at the time of the arrest and so, it is my understanding that what's being authorized here, or what was intended to be authorized was for the search of those devices to occur between those dates. That would also be consistent with what Detective Dent had testified in one of my previous trials, his testimony. And I realize this is not evidence, but I had questions about a search that they had performed before and his response was that it's their understanding that as long as the data is extracted within the time specified in the warrant, then that complies with the warrant.
So, based on that, it's my understanding that what's important is the date that the data was extracted from the device and then copied onto their server, not the date that Detective McElory would have provided the device to DFU.
I mean, if we accept that argument, then that would mean that the police could, theoretically, seize any device, give it to DFU and they can sit on for five years before searching it and that the search would still be valid. I think that that would just be unreasonable expectation.
Judge:
All right. Well, I think what it turns on is an interpretation of what the warrant authorized. So, I'll -- I'll look at that over the lunch hour as well the other argument before me.
Fox:
I should say also, I was expecting the Crown wasn't going to oppose this because it seemed very clear to me.
But I had also spoken with Ms. Laker, at the time when I brought this to her attention, that there was the issue that I brought up when I was cross-examining Sergeant Shook about how some of the files that were on the phone, that were extracted from the phone, some of the database files had date modification timestamps that were after the date of my arrest. And I had some concerns that the VPD may have possibly modified some of the data in that it seemed to me that the account that Sergeant Shook was referring to, that were related to or associated with desicapuano.com had been added to the phone by the VPD after I was arrested. And so, I had mentioned to Ms. Laker that if the information from the phone is not going to be excluded, it seems important that somebody should be able to explain from V -- or somebody from VPD should be able to explain why it is that those databases were modified, coincidently on the same -- with the same date and time as when the data was extracted from the phone.
So, if the data from the phone is not going to be excluded, then there is, I would say, likely going to be a request for an additional subpoena. I'm -- I think I know who it was that did the extraction. It's not explicitly stated in the DFU report, but I'm pretty sure it was Detective Yingling. So, in that case, I do have the identity of the -- of the person.
Judge:
Okay. So, we're on day five of a trial. If -- if there's challenges to search warrants, that's the reason that there are pretrial conferences and you canvass this and you set it up ahead of time and you give the Crown notice. There -- there has to be a reasonable limit and as the trial judge, I'm going to be setting it, as the trial is now on day five, to entertain new applications when there's been all this time leading put to this trial to consider whether or not there was anything to be challenged in the search warrant, for example.
Fox:
And I apologize and I completely agree with you and I believe that these matters should be addressed with -- long before the trial, but in this particular instance, you may recall that Mr. Poll, when he had conduct of the case, said that they weren't going to be using any information from the phone. And then it was on the first day of trial that Ms. Laker then said that they were going to be seeking to admit evidence from the phone and that they were going to be calling an expert witness, Detective -- or Sergeant Shook, to testify about that. So, that's why this was not addressed long before because I was led to believe that they weren't going to be using that information.
Judge:
Yes, okay. I remember both those things. Okay.
Fox:
Oh, also though, it didn't -- I didn't become aware of the fact that the phone was searched outside of the time of the search warrant until just a few weeks ago because, like I said, it wasn't stated in the DFU when the phone was searched. It was -- I stumbled across it in another, like, other parts of the disclosure where it was mentioned by Sergeant -- or Detective McElroy.
Judge:
All right. Okay. Thank you.
Does Crown have any case law about the parameters of the search warrant, that issue? Or are -- are you content with what you've already told me?
Laker:
Your Honour, I'm content with what we've provided you.
Judge:
Okay.
Laker:
I think we can just leave it at that.
Judge:
All right.
Laker:
Thank you.
Judge:
So, I'm going to take the record of proceedings with me.
Clerk:
It's all the way.
Judge:
Hmm?
Clerk:
It's all the way out, Your Honour.
Judge:
Thank you.
All right. Adjourning until 2:00 p.m.
Sheriff:
Order in court, all rise.
(PROCEEDINGS ADJOURNED FOR NOON RECESS)
(PROCEEDINGS RECONVENED)
[RULING #1]
Judge:
With respect to the second issue, and this is the search warrant issue, I have some questions for Crown just before ruling on that and that is, I think it would be Ms. Laker?
Laker:
Yes.
Judge:
All right. So, what do you say is the significance of the August 18th date? And here, again, I looked at Sergeant McElroy's evidence. Her evidence was that she took the phone out of the evidence locker the day that she got granted the search warrant. She doesn't mention August 18th specifically. She talks about having a discussion with the forensic identification unit and so, can you tell me, the report -- the 5.2 has August 18th as the date too. And then Sergeant Shook looked at the phone starting January 12th.
Laker:
Yes.
Judge:
So --
Laker:
My understanding, I believe this was under cross-examination of Sergeant Shook, Mr. Fox asked Sergeant Shook about this August 18th date.
Judge:
Okay. So, this is why -- where I need help from counsel because I -- again, on the lunch hour, I was looking at certain testimony and --
Laker:
Yes.
Judge:
-- and not -- so, you're saying -- and what was the evidence on that point?
Laker:
I think it -- I -- my colleague is -- I believe, is looking through his notes but my recollection of Sergeant Shook's evidence, when he was being asked questions by Mr. Fox, is that there was a date of August 18th referenced in the raw data that was provided to Mr. Fox. And Mr. Fox asked Sergeant Shook about that date of August 18th and why it says something along the lines of modified data, or something.
I believe that that is the date that the data was extracted from the phone and then provided to Sergeant McElroy, who then searched that data and came -- and highlighted certain further areas that she wanted the expert to subsequently analyze.
Judge:
From my review of Sergeant McElroy's notes, absent the mentioning of the date of August 18th, she did describe a process like that where she had had a discussion and narrowed down -- okay, I wanted to make sure I understood what Crown said the August 18th date represents. And again, it's not that there's evidence, basically, there's evidence from which you're asking there be an inference that that was the first day somebody extracted the data from the phone at DFU and it wasn't Sergeant McElroy who did that.
Laker:
No.
Judge:
Okay. I wanted to understand what your position on that.
And any reply to that, Mr. Fox, as to --
Fox:
Yes, I just want to clarify, in the disclosure that was provided to me December 15th --
Judge:
Mm-hmm.
Fox:
-- there's a police statement 11 which is -- it's one of the narratives. It's entitled --
Judge:
Mm-hmm.
Fox:
-- Analysis of 2266177-1, Fox's cellular phone and it's in there where Detective McElroy writes [as read in]:
Detective McElroy was advised on August 18th, 2022 at 1523 hours that the digital forensics unit had extracted the data from . . .
Et cetera.
Judge:
Okay. Thank you. That helps even more because -- okay, thank you.
Fox:
Okay.
Judge:
So, it's in the disclosure, it's not something that I've seen and it wasn't something that I made note of. And it may be that Sergeant McElroy did mention that date but it wasn't in my notes. And so, I was left looking at the report to a justice and wanting to make sure I understood. Okay.
Fox:
I could also say that there was some discussion of the date of August 18th when I was cross-examining Sergeant Shook because there was the issue of the files having the timestamp of August 18th and I was asking him about that and he said he didn't have any knowledge of that.
Judge:
Right. Yes. Okay.
Fox:
I was saying that some of the files had been modified on that date.
Judge:
I remember -- I remember that line of questioning too. Okay. All right. Thank you.
Some -- something further, Mr. Elias?
Elias:
Just the one thing I'll add is there actually is evidence of August 18th directly on Exhibit 11, which is the data 5.2 form.
Judge:
No, exactly.
Elias:
Yes.
Judge:
I looked at the 5.2 form, which is Exhibit 11 on the trial. I looked at Exhibit 10 and then I had the question of where does the August 18th date come from, which -- which you've both helped me to answer. Okay.
Let me just -- okay, I think I need to take just 15 minutes, just to incorporate that knowledge and then I'll come back in 15 minutes to give you my ruling on the search warrant issue; okay?
Fox:
Before -- before you go --
Judge:
Mm-hmm.
Fox:
-- I just want to mention very quickly, it's not relevant to the search warrant issue, but the other issue. I just want to point out that Mr. Lam had said that the logs generally roll over every one to two months --
Judge:
Right.
Fox:
-- but in this report, it was generated in October but is referring to data from May, which is actually five months. So, that actually shows that the data is kept in the logs much longer than just a month or two.
Judge:
Well, okay --
Fox:
Like, it's -- it's -- I'm not asking you to --
Judge:
-- so --
Fox:
-- change any decisions, I'm just pointing --
Judge:
No, no, I know. But -- but I think what I would say to you and again, we're not -- we're not arguing, but I just want to say how I look at that. I understood Mr. Lam to come and say that what we were looking at were the -- what did he call them? The security module logs.
Fox:
Mm-hmm.
Judge:
And again, this is an inference, but it may be that they get kept for longer. Because when he was being asked about the access logs -- specifically about the access logs --
Fox:
Okay.
Judge:
-- that's when he said, oh, one to two months, I think they roll over.
So, I appreciate, yes, it's inference, but that's -- that was my thinking when I -- when I saw that.
Fox:
Okay.
Judge:
Okay.
Fox:
Thank you.
Judge:
So, 15 minutes.
Sheriff:
Order in court, all rise.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
Judge:
Please be seated.
[RULING #2]
Judge:
Okay. So, Crown has closed its case. Mr. Fox, are you presenting a defence case?
Fox:
Yes. Since the information from the phone is not going to be excluded, that raises the issue then of the appearance or evidence that the data on the phone seems that it was tampered with or modified after it was seized from me and this wasn't an issue that I'd brought up sooner because well, first, again, I had no idea that the Crown was going to be proceeding with this until the start of the trial and then it wasn't until Sergeant Shook was testifying that I began to realize that the files appeared to have been modified. And when I asked him about it, though, he said that he had no knowledge of that.
Judge:
Okay.
Fox:
Now, some of the -- based on his testimony about what he found on the phone, it creates the appearance that I may have had some involvement with the website because he claimed that there were two accounts -- or information about two accounts in a particular database on the phone and that was one of the files that had a late -- sorry.
Judge:
So, though, can I just make sure -- like, important that you understand --
Fox:
Mm-hmm.
Judge:
-- you need to be giving evidence if you want this to be something I rely on in deciding the case.
Fox:
Right. Where I'm going with this is --
Judge:
Yes?
Fox:
-- I believe it is critical to my defence, at this point, to have the person who performed the extraction of the files from the phone to testify why it is that some of the files were modified after the phone was seized from me. Specifically modified on the date that she extracted the data. Because it appears to me that the information that Sergeant Shook says that he found in that database, I know that it couldn't have been there. And so, what I'm -- my argument is that somebody else put that information into the phone before they gave it to him and he searched it. And that would be consistent with the date modified timestamp of that particular database file being August 18th, 2022. The phone wasn't in my possession at that point. There's no way I could have done it. And so, it certainly appears that when they extracted the data from the phone, somebody modified the data before it was -- before it -- oh, also, I should mention, even a copy of the entire extraction was provided to me, that particular file, I've never been able to open. I have it right here on the laptop and I brought this up to the Crown before as well. So, it's troubling to me that the one file that is the most incriminating here, that contains these two pieces of information, one, I can't open it, and two, it has a date modified timestamp of August 18, 2022.
Judge:
So, Sergeant Shook was here and he's an expert in analyzing data from devices. So, you had an opportunity to cross-examine him about what I think you're putting forward now, that somebody modified your data when they extracted it.
Fox:
Well, at the time that they extracted it or after. Most likely, what would happen is before they extracted the data, the probably, on the phone itself, put the information in. But I should say that I did actually ask Sergeant Shook about this when I cross-examined him.
Sorry, my throat's dry. I think I'm --
Judge:
No, that's fine.
Fox:
-- dehydrated or something.
And he had said, at the time, that because he wasn't involved in the extraction, he would have no knowledge of that.
And certainly, this is something that I could have thought out or pursued much sooner, had this information about, for example, Sergeant Shook and the Crown's intention to use the data from the phone, had that been made known to me earlier, then I could have brought this out earlier. But because all of this didn't happen until the trial actually started and so . . .
Judge:
Sure, but -- so, right now, are you saying you want to present defence evidence? Are you going to testify? Have you decided that?
Fox:
I don't intend to testify.
Judge:
You still don't?
Fox:
What I'm hoping at this point --
SUBMISSIONS FOR ACCUSED BY THE ACCUSED:
Fox:
Oh, I should mention also, I also brought this up to Ms. Laker when I spoke to her on March 8th about the issue of the search warrant, I also told her at that time that in the event the Crown is going to be opposing the exclusion of that data, then I would want somebody from VPD to be able to testify about why these files were modified. And so, my point is I'm not just bringing this up now at the very last --
Judge:
Mm-hmm. No.
Fox:
-- very late point.
Since that time, I haven't been able to reach Ms. Laker by telephone because apparently there's some issue, I can no longer call her telephone number from the jail, so I had to communicate by mail again.
Judge:
Hmm.
Fox:
Oh, and in this case, I'm pretty sure we do know who it was that performed the extraction. It doesn't explicitly state in the DFU report it Detective Nancy Yingling, however, she is referenced indirectly. Something to do with some photographs of the evidence. So, I'm pretty sure it was probably her because she was involved in the extractions in a previous case of mine.
Judge:
So, you don't intend to testify but even though Sergeant Shook was here and could be cross- examined, you say you asked him this question, which is about your suggestion that somebody modified data in extracting it and he said he didn't know. I haven't looked back at Sergeant Shook's evidence on this point.
Fox:
Mm-hmm.
Judge:
I don't know if Crown has any -- this is -- I would expect -- this sounds like yet another application for disclosure of a witness and production and then you would be seeking a subpoena, strictly speaking; right?
Fox:
I guess that would -- yeah, I guess that would be the process.
Judge:
and I have a similar task, to assess whether -- what the likelihood this is that it's likely relevant to your defence.
Fox:
See, I didn't consider it very important at the time that Sergeant Shook was testifying because I was relying on the proxy logs proving that nobody had access to the website and my opinion, at that time, was that since it couldn't be proven that the website was actually online, it wouldn't matter, even if the Crown had clear evidence that I was involved in the website. If it wasn't online, there was no breach. And so, that's why it wasn't a very huge issue to me before. But now, since the Crown is resisting -- or, I shouldn't raise it that way -- since the Crown is opposing the exclusion of the data from the phone, plus the -- they're fighting the issue of the proxy logs in the meaning of the proxy logs, so now it seems to me that I'm in a position where I really have to kind of pursue every avenue. I can't just assume that something's not going to be relevant because this other evidence proves that what they're saying can't be true.
Judge:
Well, I don't know if Crown wants to take the afternoon break now and consider their reply, or?
SUBMISSIONS FOR CROWN BY CNSL T. LAKER:
Laker:
Well, Your Honour, what I can say is that we are fairly certain that it was Constable Yingling who did the data extraction. We can't say for certain if it was.
My response with regards to Mr. Fox's concerns about the data having been modified when it was extracted is that Sergeant Shook did speak to that to a certain degree, in that he was asked by Mr. Fox about whether or not some of the data could have been modified post-extraction. And my -- my recall is that he replied that the method of extraction will sometimes vary case-to-case, but that extraction programs strive for not modifying data at all, or as little as possible.
So, my submission is that -- that is a fairly complete and thorough answer to the query that Mr. Fox currently has and as to whether or not requires further disclosure, I just do not see that there is any possibility that it was -- that it will answer the questions that Mr. Fox has currently and I know Mr. Fox has mentioned previously that the Crown will say that this is a fishing expedition, but I will echo those comments, this is -- this is taking us further and further away from the real issues at trial, in my submission and we already have a fairly concrete answer already from Sergeant Shook.
Judge:
All right. Thank you. Well, then that was why I asked. Sergeant Shook is an expert in that area and if he was asked that question and gave an answer -- all right.
We'll take the afternoon break now. I'm going to look at my notes of what Sergeant Shook said to make a ruling on this and come back, please, at 3:30.
Sheriff:
Order in court, all rise.
(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)
(PROCEEDINGS RECONVENED)
Judge:
All right. Everybody ready?
[RULING #3]
Judge:
So, that is my ruling and we're still in defence case and what I wanted to make sure you understood, Mr. Fox, is I don't have evidence against you with -- I just wanted to make sure you understood the statements are not evidence against you that the Crown has presented as part of their case. So, there are two statements that I heard. We played them. They took up court time. But they are not in evidence before me unless or until you decide to testify. So, if there's anything in those statements that you want to rely on, I want to make sure you understand I'm not considering them at all, unless you are testifying.
Similarly, if there's anything that you want me to consider in deciding the case, I have to rely on the evidence before me and the evidence I've heard and cross-examination questions aren't evidence. The answers are evidence. Depending sometimes on the question and answer, they could go together, making the question and answer together confirming something. But the important point is, if there's anything that you want me to consider, then you would have to choose to testify.
And it's your right not to testify and you can maintain that. And you have indicated a few times that's what you wanted to do, but I thought the point about the statements was a little bit subtle, so I wanted to make sure that you understood that.
Fox:
Okay. Thank you.
Judge:
Any -- any other -- what are you going to do now?
Fox:
I don't -- I don't intend to testify and I would guess, at this point, that we could proceed with the closing arguments.
Judge:
Okay. Are you ready to proceed to closing arguments then?
Fox:
I couldn't fully write them ahead of time because I needed to wait until I heard from Mr. Lam today and to see how those things went. Also, the issue about the search and all. I could wing it though. But looking at the time, I'm not sure, by the time the Crown finishes their closing arguments, I don't know that there'll be time for me today anyways.
Judge:
Well, okay. Crown would begin anyway, in a case like this, where, in effect, I just have the Crown evidence to consider. We'll see where we get to. If you want time to prepare, we'll come back for you to complete submissions. You can listen and know that I'll give you more time to prepared and reply to what they've said; okay?
Fox:
All right. Thank you.
SUBMISSIONS FOR CROWN BY CNSL T. LAKER:
Laker:
And Your Honour, for everyone's benefit what we've done is actually drafted our submissions, so that if Mr. Fox feels that he needs time to -- to consider his -- his closing, then he has the benefit of those written submissions.
Judge:
Thank you, that's helpful.
Laker:
There are also some cases. Mr. Fox has been previously provided these cases and I can hand them up to Your Honour. I'll also give Mr. Fox a hard copy of those cases as well, but I believe he has them for -- already on his hard drive.
So if I could just have a moment, I'll just quickly -- or actually I'll ask my -- so Mr. Fox -- have we given copies to everyone?
Fox:
I do not, maybe that right here?
Laker:
Yeah, this is it. And has a copy been provided to Your Honour?
Judge:
I have a closing submission.
Laker:
Yes. Thank you.
Judge:
I don't have the case law yet.
Laker:
Yes, so I'm just referring to the closing submissions and Mr. Elias is just bringing up some of the cases, I apologize they're not in a book of authorities.
Judge:
That's fine.
Laker:
Now what I propose to do is just for -- just -- because I'm trying to be as cautious and cognizant of time in light of the fact that we have moved fairly slowly through this trial, and so what I've done is we've set out our closing in writing. We've summarized the evidence that is relevant, in my submission, with regards to each counts.
I'm happy to move through it fairly quickly so that it -- because everyone will have the benefit of having these -- these written submissions --
Judge:
You know what, take your -- take the time you need --
Laker:
Okay.
Judge:
-- and don't feel rushed. This is an important part of the trial too and it's the reason why I've said Mr. Fox can have more time if he needs it and we'll go over to another day so --
Laker:
Yes.
Judge:
-- if we need to.
Laker:
Okay, and it seems like we will, at a minimum for Mr. Fox so --
Laker:
Yes. Yes, so Mr. Fox is before the court on three allegations of breaching his probation order imposed by Judge Denhoff on February 25th of 2022. That probation order has been entered as Exhibit 1 on the case.
In summary, he is charged with failing to report on April 21st, 2022, failing to remove the prohibited website desicapuano.com on May 16th and disseminating information about Desiree Capuano on May 16th. It is important to note that the underlying offences that led to the imposition of this probation order. In -- there's something that we actually did forget to grab -- in 2017 Mr. Fox was convicted of criminally harassing his ex- wife by using a website that contained information that humiliated, degraded and intimidated her causing substantial harm. Since that time he's been placed on successive probation orders to try to constrain this type of conduct that amounted to the criminal harassment in his 2017 conviction. This includes constraining him from disseminating, distributing or making publically available in any manner whatsoever, directly or indirectly, information about his ex-wife or people associated with her, including, but not limited to putting such material on the website.
We have a book of judicial history that we will provide to Your Honour and to Mr. Fox as well, and those can be entered as an exhibit, in my submission, on the proceedings. And I submit that the court can refer to those prior proceedings.
Now with regards to the elements of the offence, in the context of a breach of probation contrary --
Judge:
Can I just stop you on that prior point --
Laker:
Yes.
Judge:
-- you know, courts can look at their own records but this -- the basis for saying I should look at the entire history or it should be made an exhibit now on your submissions, not on the trial.
Laker:
Yes, Your Honour, I just -- I see your point and because -- yes, I agree. I -- that was my mistake, it shouldn't be entered as an exhibit, but it is something that I -- that I do submit that the court can certainly refer to because it does form part of the court record.
Judge:
Are all the proceedings in this court? Or are you speaking more -- more broadly.
Laker:
The -- there have been proceedings both in the Provincial Court, Supreme Court and Court of Appeal.
Judge:
And do you say that I can know about all of those proceedings?
Laker:
Yes.
Judge:
Not just the ones that directly touch on this prosecution? Are you saying they're all relevant or --
Laker:
Well, Your Honour, what I can --
Judge:
And I'll just say, I don't have specific knowledge of --
Laker:
Yes. The only -- the only prior proceeding that the Crown will be directly referring Your Honour to will be the decision of Judge Denhoff.
Judge:
Well exactly, that seems evident to me.
Laker:
Yes.
Judge:
I would know about that one.
Laker:
And perhaps what we can do is we can just parse that out and place that before Your Honour rather than the entire proceedings.
Judge:
Well right, if we're going over to another day --
Laker:
Mm hmm.
Judge:
-- if I could -- if I could consider that and Crown as well as to whether that's -- that's something that should properly be in front of me in deciding this matter. I don't want to -- some context is important, some context may even be admissible, but I'm -- I'm focused on this decision in this case.
Laker:
Yes. I should also note that there is a recent Court of Appeal decision that directly addresses the particular issue that's before Your Honour today, that the -- that we will be asking Your Honour to take into account. And that -- that will all become more clear as I go through my submissions.
Judge:
Okay.
Laker:
Okay --
Judge:
Well certainly any published decision --
Laker:
Which it is.
Judge:
-- right, I have to have regard to what the Court of Appeal has to say in general or perhaps you're saying in this case in specific? I don't know. I'll wait to hear what it is that you point out.
Laker:
Thank you. Now to the elements of the offence, in the context of a breach of probation contrary to s. 733.1 of the Criminal Code, the Crown must establish beyond a reasonable doubt that the accused (a) committed the act or omission prohibited by the probation order, which is the actus reus of the offence. And (b) knew of the conditions in the probation order and either knowingly or recklessly failed to act according to those conditions. That's the mens rea.
The cases that I've provided to Your Honour that address that, and I'm not going to go into them at length, are R. v. Blaney from our Court of Appeal. The Zora decision from the Supreme Court of Canada, and as well the Sugg [phonetic] which is from the Nova Scotia Court of Appeal and last an article that is called The Vagueness and Impossibility in Probation Conditions authored by David Burke. Those, in particular Blaney and Zora specifically set out what I've just spoken of, which is what the Crown has to establish or what the court has to find in order to convict Mr. Fox.
And with regards to Sugg and the article I've referenced, that addresses the issue of when you have situations where if it's impossible for the accused to comply with a probation order, that the actus reus and the mens rea are negated. Obviously, the Crown here is arguing that that's not the case and -- but for the benefit of the court and for the benefit of Mr. Fox, we felt that it was important to include those authorities.
Judge:
So it doesn't relate to what the Crown has to prove, but did Crown consider the Valesky [phonetic] decision from the BC Court of Appeal of the burden on an accused person who wants to raise a reasonable excuse on the burden of proof?
Laker:
No, we did not consider that simply because it did not appear from our view of the evidence that a reasonable excuse was a possible defence here.
Judge:
Okay, so you're aware of the case but you didn't see it applying to these facts.
Laker:
Yes.
Judge:
Okay.
Laker:
Further, courts have determined that a probation order must be interpreted in its entire context and in its grammatical and ordinary sense, harmoniously with the purpose of probation orders, both generally and in the circumstances of the particular case. And that's the Alleby [phonetic] decision, which is from the Court of Appeal for Saskatchewan from 2017.
In my submission this is the most helpful case for Your Honour to consider. It contemplates a breach of probation where an accused had gone to essentially a library and the argument was that whether or not the library fell under the context of a community centre. And this accused person had been convicted of various sexual offences with respect to children, and the court ultimately said that you can't just parse out that one word and interpret it. You have to consider both the sort of reason why the probation order has been imposed and the totality of the probation order. And that is certainly helpful in this case, and that is why I drew Your Honour's attention both to the background that has led to these probation orders being imposed on Mr. Fox.
Mr. Fox is putting up his hand so I'm just --
Judge:
Oh, sorry Mr. Fox, I didn't see you. Stand up, please.
Fox:
I think I'm familiar with the case of Alleby but I think it's a little bit misleading though because they're talking about -- they're not talking about the wording used in a probation order, they're talking about the wording used in a statute, they're talking about when Parliament writes the statute, not when a court writes a probation order condition. Anyway --
Judge:
So Mr. Fox that's --
Fox:
-- that's argument I should bring up when [indiscernible].
Judge:
-- here's -- final submissions usually work like this. If you have -- do you have a pen and paper.
Fox:
Yeah.
Judge:
So make a note of things that you want to say to respond to what you hear the Crown saying.
Fox:
Right.
Judge:
And then you get your full opportunity when you stand up to make your submissions to point out anything like that.
Fox:
Thank you.
Laker:
And Your Honour, with regards to the actual conditions that we are concerned with here, they are Counts 4 and 6 of the probation order and they state as follows: that Mr. Fox is to report to a probation officer within 72 hours of your release from custody, only for the purpose of informing your probation officer at that time of the exact steps you have taken to comply with the conditions of this probation order, with the following conditions of this probation order that within 48 hours of your release from custody, you shall take all necessary steps to ensure that any website, social media page, or 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, co-workers including the websites published under the domain www.desireecapuano.com or www.desicapuano.com are no longer available via the internet or any other means.
Once you have reported these exact steps you have taken to comply with that condition, you will no longer be required to report to a probation officer.
And then condition 6 states you shall not disseminate, distribute, publish or make publically available in any manner whatsoever, directly or indirectly, information, statements, comments, videos or photographs which refer to or depict by name or description Desiree Capuano or any of her friends, relatives, employers, co- workers.
So in this case condition 4 had two obligations; first, Mr. Fox was required to report; and second, he was required to take all necessary steps to ensure the subject website was no longer available via the internet or any other means. For the reporting aspect of the condition he was required to report only for the purpose of informing his probation officer at that time of the exact steps he had taken to comply with the conditions of the probation order. And that once he had reported these exact steps, he was no longer required to report.
And then for the requirement that Mr. Fox take all necessary steps to ensure that desicapuano.com is no longer available via the internet, this has already been subject to judicial commentary. And this is what I referenced before, is that recently the Court of Appeal in Mr. Fox' latest appeal found at Paragraph 28 that the plain meaning of the phrase "no longer availableu clearly indicates that Mr. Fox was required to ensure that the website was not available during the entire probation period.
Judge:
So was that an appeal in relation to this exact same probation order or is that --
Laker:
It's the exact same wording.
Judge:
Exact same wording of a different probation order term?
Laker:
Yes.
Judge:
Same -- same wording entirely or same, you know, two, three wordings. Three words.
Laker:
Same wording entirely.
Judge:
Okay.
Laker:
The only -- the only difference is the reporting condition that -- I'll hand up the Court of Appeal decision for Your Honour -- Mr. Fox, do you need this? Actually no --
Fox:
[indiscernible].
Laker:
Yeah. The only difference is that Judge Denhoff added the reporting aspect of condition 4 -- into condition 4 of her order. Other than that where you go from "within 48 hours of your release from custody" all the way down to "or any other means", that is the exact same wording I -- I believe. I'm quite certain but perhaps -- well here, we've got it here. Page 6 of the Court of Appeal decision references the condition that he was --
Judge:
Okay, thank you.
Laker:
Thank you. What I'll also say with regards to that condition is that it's not vague or ambiguous. There's the Traverse [phonetic] decision, which I've provided to Your Honour, and at Paragraphs 34 to 36 the court found that the probation conditions must be drafted with sufficient clarity and specificity to give an accused fair notice of the conduct required or prohibited by the conditions. A probation condition is considered vague where an accused cannot determine when he is at risk of breaching that condition.
And in that case they also referenced the David Burke article that we've provided to Your Honour at Paragraph 38 and that's simply a helpful decision with regards to dealing with that particular issue as to whether or not a condition is possibly vague.
But the Crown submits here that condition 4 gave Mr. Fox fair notice of the conduct required. It explicitly expressed what was required, that he ensure that the website was no longer available via the internet or any other means, and when he was required to fulfil that obligation, within 48 hours from his -- from custody -- of his release from custody. While condition 4 did not detail precisely how Mr. Fox should take the website offline, the condition must be interpreted in its entire context, per Alleby, and that context includes that Mr. Fox originally created, published and maintained control over the website, is proficient in the maintenance of websites, and has been bound by this condition over multiple probation orders.
In these circumstances he could reasonably be expected to know what steps were required to ensure that the website was no longer available.
Now with regards to Count 1, which I will characterize as the failing to report allegation, the court has heard that Mr. Fox was released on April 17th of 2022. At that time he was bound by the conditions of the probation order and he was well aware of the conditions, which included a requirement to report. Mr. Fox reported for the first time at 275 East Cordova Street on April 19th of 2022, and on that date he met with Julie Seif [phonetic] who was one of the duty officers on that date, and she testified the following.
That part of her job as the duty officer is to ensure that people are referred to the correct officer or office. She met with Mr. Fox because his assigned probation officer, Mr. Trimmus [phonetic], was not available. She had no prior familiarity with Mr. Fox. She said the administrative staff had the probation order printed up for her, she quickly reviewed the order, and called Mr. Fox into one of the rooms to review. After she reviewed the probation order with him, she gave him the next reporting date and that reporting slip was entered as Exhibit 3. She said that when she reviews the order, she goes through the conditions, tells them about non- compliance and asked them if they have questions about the order.
She was candid in saying that there was a lot she did not remember since it was back in April, but she remembers going through the order, stamping it and knowing that he was Coulis' [phonetic] client, giving him a reporting date to come back. She does recall that Mr. Fox felt strongly that he had satisfied his requirements, but she felt that he had not done -- that he had not, so she told him to come back to report.
In cross-examination she said that she does not recall whether Mr. Fox told her he had taken no steps to cause the website to be taken down because it was already offline, but she did agree it was a possibility.
Mr. Trimmus testified that he was assigned to Mr. Fox' file following his sentencing on February 25th. On April 21st, 2022 he confirmed that Mr. Fox did not report to him or any other Community Corrections office. This was confirmed via a review of CORNET, after Mr. Fox failed to report, he submitted a breach report. Mr. Trimmus did provide evidence about co l lateral contacts he had regarding the probation order. He spoke with the police on April 19th and he also spoke with ad hoc Crown Counsel, Chris Johnson. Mr. Trimmus also looked up the subject website and he saw that one of the sites was on the internet but it was password protected.
Mr. Trimmus was asked questions about his interpretation of condition 4. He was asked in direct what is your role in monitoring this condition, and he replied that he would first see if sites are still on the internet, and have a discussion with Fox about what steps he had taken to remove them. He said that it was his job to know more about what Mr. Fox had done to remove the sites and this was what he expected to do on April 21st.
The Crown submits that Mr. Trimmus is a careful conscientious probation officer. He apprised himself of what he perceived was the obligations with regards to the probation order and he was fully expecting Mr. Fox to attend on April 21st and that potentially Mr. Fox was going to have to report following that date as well.
In cross-examination Mr. Trimmus indicated that it was up to the probation officer to determine if Mr. Fox had satisfied his reporting condition. That it was implicit in the last sentence of condition 4. He said once you have complied with telling me what steps you've taken, my sense is that until that's done, you would be required to report. He disagreed with Mr. Fox' proposition that condition 4 was satisfied by Mr. Fox possibly informing Ms. Seif that he had taken no steps. He said his interpretation was that some steps had to be taken -- had to be taken regarding taking down the website, and that he would have wanted a careful -- or he would have wanted to have a meaningful detailed description about what steps Mr. Fox had taken. Mr. Trimmus told the court that he was not looking for Mr. Fox to report over and over.
So in conclusion with regards to Count 1, Mr. Fox was required to report to a probation officer about what steps he had taken to take down the subject websites. There was no question that Mr. Fox was aware of the requirement. In fact, Mr. Fox had the benefit of Judge Denhoff's reasons for judgment dated February 25th, 2022, I've got extra copies of that. I didn't staple it because I didn't believe a staple would work.
Judge:
Thank you. These look like the transcript rather than the reasons.
Laker:
Yes, this is the transcript.
Judge:
So in other words it was an oral decision?
Laker:
Yes.
Judge:
Okay, thank you.
Laker:
At --
Judge:
Hold on, I'm just looking at it, it looks like the transcript, it doesn't look like the decision. It looks like -- I just want to make sure --
Laker:
Oh, Your Honour, I apologize --
Judge:
I'll give it back to you. It looks like Mr. Fox' evidence, submissions, submissions.
Laker:
Yes, thank you. I apologize.
Judge:
No, that's fine.
Laker:
What I'll do is I will just take it out of here, perhaps Madam Clerk can staple it. Thank you. Mr. Fox has that.
Judge:
Thank you. Yes, oral reasons for judgment.
Laker:
Yes, I apologize --
Judge:
No, no, that's all right, this is what you meant to give me and I have it now. Okay.
Laker:
Yes. So if we go to Paragraph 23 to 28, Judge Denhoff states here:
[23] Mr. Fox rhetorically asked the prosecutor what further steps, other than sending a supposed email to the editor of the website, he could have taken to ensure that the website was no longer available. To begin, I do not believe that Mr. Fox sent an email to the editor of the website. Mr. Fox refused to produce the email to the police when asked and also failed to offer to produce the email when his laptop was available in court during the trial.
[24] In terms of steps he could have taken, he could not have launched the website as he has admitted to doing.
[25] Even if I were to believe that Mr. Fox only told the police he launched...
Yes -- yes, I'm just going through, I just want to hit the actual or discuss the -- there we are. If we could just turn to Paragraph 26 -- just one moment. What I'll do rather than just read this all out for Your Honour --
Judge:
Mm hmm.
Laker:
-- is I'll just characterize that here the Honourable Judge Denhoff is discussing the various methods in which Mr. Fox was arguing that he was not able to remove the website and she was discussing in her decision that her conclusion was that he did have care and control and could have removed the website. And she says that -- and she finally concludes at Paragraph 29 that:
[29] Mr. Fox had control of the website www.desicapuano.com within 48 hours of his release and continuing past that time, as he repeatedly boasted to the police. As such, he was obligated to ensure that the website did not continue to be available via the internet. He failed to do so and he is guilty of breach of condition 6 of the 12-month probation order issued by Judge Rideout at that time.
Now -- so that was his -- that was her reasons for decision or reasons for judgment, and as I state in the Crown's closing submissions at Paragraph 23, Judge Denhoff here was outlining the scope of the conditions and the steps that Mr. Fox could and should have taken to comply with identically worded probation condition.
So turning back to the Crown's closing submissions at Paragraph 24 Mr. Fox reported in on April 19th and his order was reviewed with him by Ms. Seif. He was told to come back and meet Mr. Trimmus since he was his assigned probation officer. At this time on April 19th, there was no information before Community Corrections about what steps Mr. Fox has taken with regards to the subject website. This was information that he was told he had to provide to Mr. Trimmus on April 21st. He failed to report on April 21st and he failed to provide any information about what steps he had taken with regards to the website.
In keeping with the court's language in Alleby, Mr. Fox was required to continue reporting to Mr. Trimmus until Mr. Trimmus was satisfied that he had a proper description of the steps Mr. Fox had undergone to take down the website. This is an interpretation of the probation order that considers the order's entire context in the circumstances of this particular case.
Mr. Fox chose his own self-serving interpretation and he subsequently, in keeping with his erroneous interpretation, chose not to report. An accused's erroneous legal interpretation of an order does not negate mens rea for a breach of that order. And that's in the Alleby decision at Paragraph 41 to 43.
Mr. Fox' conscious decision to not report on April 21st is therefore a clear breach of condition 4 of the probation order.
So we can then turn to Counts 2 and 3, which are -- relate to the steps that Mr. Fox was required to take to remove the website and also making information about Mr. Capuano publicly available.
So the Crown submits that the second breach of condition 4 and breach of condition 6 are related. Mr. Fox failed to take any steps to remove the website, desicapuano.com, ensuring that information about her continued to be publicly available, contrary to condition 4. He also disseminated new information about her contrary to condition 6.
The evidence to support these convictions are that of Catherine Meiklejohn, Sergeant McElroy, Sergeant Shuck [phonetic] and Johnny Lamb. The court has heard via Ms. Meiklejohn and Sergeant McElroy that on May 16th the website was available on the internet. Hunchley [phonetic] printouts entered as Exhibit 5, document her access to the website.
Further, Sergeant Shuck's report shows that from a forensic analysis of Mr. Fox' phone, there was data shown that Mr. Fox had some control and access to the website.
So the first aspect of -- or the first portion of the evidence that's relevant here is the evidence that the website was available on the internet, and that occurred on May 16th. And Ms. Meiklejohn was the primary witness with regards to that, and she testified that she is a data analyst with the VPD and that on file 22-66177, on that date, she was asked by either McElroy or Kim to check a site because they had heard it was up and running without a password. She located the website by entering www.desicapuano.com which she recognized from previous years. She noted that on the left-hand of the screen there were some recent blog posts. In conclusion, she observed that the desicapuano.com website was available on the internet on May 16th.
Further, using the Hunchley software that is a screen capture tool, which she uses in a very simple capacity, she captured screenshots of the website. The Hunchley program then provides a list of all the captures as well as creating a record of her access to the website on that day. She then printed the specific pages from the website in PDF format, which prints with a cover page.
And Your Honour has had the benefit of seeing those and they were entered as Exhibit 5 and they are the package of Hunchley captures of the blog posts from desicapuano.com and Ms. Meiklejohn confirmed that the printouts in Exhibit 5 are what she saw on May 16th. The front page of the screenshot captures or a screenshot capture shows the website at the top, along with the name of the blog post. It also shows the date and time that the screen was obtained, and provides a hash tag identifier, which is a unique identifying number.
Mr. Fox suggested to her that there was no way of knowing on May 16th that she actually viewed the desicapuano.com website, rather than being routed to some other website, and she replied correct. However, this does not diminish her evidence that what she saw, documented by her Hunchley screen captures, was accessed by the method of entering the website's URL. In other words, while Ms. Meiklejohn cannot speak to where every element of the material she viewed was stored on the internet, her evidence is clear that she viewed it by way of direct access to desicapuano.com.
She also confirmed under cross that when she attempted to access the website on May 3rd, it was not publicly available because credentials were needed to enter it, and she said that when she looked at the website's previous address, desireecapuano.com, she observed what she described as a placeholder, suggesting that that domain had expired on -- I believe that would be -- I think it's April 12th, 2022, pending renewal or deletion.
Sergeant Amber McElroy also provided evidence about her observations of the website being available on May 16th. She advised the court that when she was working at the VPD detachment at 3585 Graveley Street, Vancouver, she was looking over Ms. Meiklejohn's shoulder when the website was searched and she observed the website on Ms. Meiklejohn's computer with that URL, along with a header and a picture. She confirmed that Exhibit 5 was the package created by Ms. Meiklejohn. She was specifically asked about page 22, and I'm not going to take Your Honour to the Hunchley printouts, obviously that's something Your Honour can do when we finish with court, and I'll -- what I can --
Judge:
Might this be a good time to just pause --
Laker:
It might be a good time.
Judge:
-- in your submissions. I know you're only on page 10 of 18 --
Laker:
Yes.
Judge:
-- so I think to finish would take us --
Laker:
Too long.
Judge:
So just pause at the top of page 10.
I think you should get a full day continuation here, so that I can hear the end of the Crown's submissions, I can hear Mr. Fox's submissions and then my hope would be that I could take some time to think about it and give you a decision that day.
Laker:
Yes.
Judge:
That's why I'm saying get a day. So, adjourn to the judicial case manager to fix that one day. So, Mr. Fox -- I'll bring Mr. Fox back on a day after that, to confirm the day that's been set. So, which -- which date are Crown suggesting? Could it be tomorrow?
Laker:
Yes, I think -- I think the earlier, the better, Your Honour.
Judge:
Mm-hmm.
Laker:
We will email the JCMs, because that's what we've been doing for this case and then we will have a date to confirm with Mr. Fox tomorrow.
And before Mr. Fox leaves, I'd just need to review what dates he's [indiscernible]. I think I still actually have a record of the dates that Mr. Fox isn't available coming up.
Judge:
Do you?
Laker:
Yes.
Judge:
Okay.
Laker:
I'm quite certain.
Judge:
So, you're suggesting that you could both go to the JCM, get the day and also that I should remand Mr. Fox to tomorrow afternoon --
Laker:
Yes.
Judge:
-- by video, to confirm the date set?
Laker:
Yes.
Judge:
Okay.
Laker:
Thank you.
Judge:
So, I'll adjourn the matter to the JCM fix date court at 9:00 a.m., for the purpose of setting a further day and adjourn Mr. Fox to courtroom 101 by video, or 102.
Does Crown have a preference of which court? Just to confirm that date, by video, at 2:00 p.m. in the afternoon.
Laker:
I think 102.
Judge:
One-o-two then, 102, tomorrow afternoon at 2:00, Mr. Fox, by video, to confirm the continuation date that Crown are going to set in the morning.
Sheriff:
Order in court, all rise.
Judge:
Thank you.
(PROCEEDINGS ADJOURNED TO MARCH 29, 2023, AT 2:00 P.M.)
Transcribers:
- P. Moore
- R. Richardson