Transcript of Trial Proceedings (2023-04-19)
PDFCourt of Appeal CA49120
244069-10-BC
Vancouver Registry
In the Provincial Court of British Columbia
(BEFORE THE HONOURABLE JUDGE OULTON)
Vancouver, B.C.
April 19, 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.
April 19, 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
- SUBMISSIONS FOR CROWN BY CNSL T. LAKER, CONTINUING
- SUBMISSIONS BY ACCUSED
- REPLY FOR CROWN BY CNSL T. LAKER
EXHIBITS
RULINGS
- NIL
Vancouver, B.C.
April 19, 2023
Laker:
Yes, Your Honour. Laker, initial T., for the Crown. And I can deal with Mr. Fox's matter. It's the only matter on the list.
Judge:
Yes. Mr. Fox. So my apologies for being late. I was in a pre-court meeting in another building and it ran late.
Laker:
No problem. Mr. Fox was able to get set up and he just confirmed that he does need the table that we have ordered for his closing submissions. So when I have concluded mine, we'll have to stand down briefly. Mr. Elias is actually in a continuation in Courtroom 513. He's hoping that he will finish that this -- early this morning and will be able to join us. But he's the one who's aware of where this table is, so I'll have to coordinate that.
But what I propose to do at this point is just to continue with the Crown's closing submissions, Your Honour. And -- and then at that point, once I have concluded, what we can do is maybe briefly stand down before Mr. Fox starts.
Judge:
Thank you, Ms. Laker. I did have some comments after last day. I know that you didn't finish your submissions. But they had to do with the authorities that you were presenting. First a decision from the B.C. Court of Appeal and then the decision that was the basis of the probation order currently before the court.
Laker:
Yes.
Judge:
In this prosecution Mr. Fox is presumed innocent.
Laker:
Yes.
Judge:
He didn't testify. He didn't put his character in issue. Section 12 of the Canada Evidence Act didn't become engaged. I don't know how the issue will be framed in Mr. Fox's final argument. The B.C. Court of Appeal decision might have some relevance if there's any issue or argument about the meaning of that phrase, but Judge Denhoff's decision, I didn't see the relevance or admissibility of that. It was a different set of circumstances. Mr. Fox testified on that trial. The facts were different.
So I'm not going to consider Judge Denhoff's decision. I may consider the B.C. Court of Appeal decision depending on what the arguments are, if it's a similar argument.
Laker:
Mm-hmm.
Judge:
But I don't think at this stage of proceedings all -- anything else --
Laker:
Yes.
Judge:
-- is properly before me --
Laker:
Yes.
Judge:
-- for consideration.
Laker:
Yes.
Judge:
Crown agrees? Okay.
Laker:
Yes, I do agree.
Judge:
Okay.
Laker:
I had an opportunity to reflect on that, Your Honour --
Judge:
Okay.
Laker:
-- and I do agree with you, absolutely.
Judge:
Okay. Good. Glad we're --
Laker:
With --
Judge:
-- on the same page.
Laker:
With regards to Denhoff's decision, the only reason why it was provided is because Judge -- the Honourable Judge Denhoff outlined for Mr. Fox sort of all the efforts that could be made in order to deal with the website. That was the only reason. Second of all, with regards to the court of appeal decision, obviously without knowing what Mr. Fox is going to be saying in his closing submission it is the Crown's submission that the court of appeal has definitively ruled on their interpretation of the condition that Mr. Fox was bound by. It just happens to be Mr. Fox who was before the court of appeal on that particular issue. Obviously if it was a different accused the Crown would still be relying on that decision. We are not relying on it because it's Mr. Fox; we're relying on it because of how the court of appeal has interpreted that condition and that's it solely.
Judge:
Okay. As I've said --
Laker:
Yes.
Judge:
-- the court of appeal decision might be relevant, it might be admissible. It depends on the issues in the trial.
Laker:
Exactly.
Judge:
I'm not going to further consider Judge Denhoff's decision. I don't think it's relevant or admissible and it's prejudicial to Mr. Fox.
Laker:
Yes. And obviously the Crown would never be arguing that because there has been a previous ruling before that Mr. Fox is guilty of this particular offence. That would never be an argument that the Crown is advancing whatsoever and I would strongly encourage Your Honour to -- to not consider it in that way.
Judge:
No.
Laker:
I agree with you --
Judge:
Of course not.
Laker:
-- that it is prejudicial. Absolutely.
Judge:
The impression I was given --
Laker:
Yes.
Judge:
-- by handing up a book of all -- or attempting to hand up --
Laker:
Yes.
Judge:
-- a book of all these prior decisions was that Crown was doing that exactly --
Laker:
No.
Judge:
-- which is not proper.
Laker:
No. Absolutely not.
Judge:
So -- okay.
Laker:
Yes.
SUBMISSIONS FOR CROWN BY CNSL T. LAKER, CONTINUING:
Laker:
So where -- where I was in my closing was dealing with the -- the Counts 2 and 3 where the Crown is alleging that Mr. Fox has has breached those conditions. That began at page 7 of the Crown's submissions.
And paragraph 26. And what I -- what I had done was taken Your Honour through the evidence of Ms. Meiklejohn about the -- the fact that the website was available on May 16th when she accessed it in her capacity as -- as an employee of the Vancouver Police Department. That evidence was summarized by the Crown at paragraph 29 on page 8 through to the end of page 9.
And I had start discussing the evidence of Sergeant McElroy at the bottom of page 9 where I had -- where the Crown's indicated that she has also provided evidence about her observations of the website being available on May 16th. That she was working at the same time as Ms. Meiklejohn at the Vancouver Police Department detachment at 3585 Graveley Street in Vancouver, was looking over Ms. Meiklejohn's shoulder when the website was searched and that she observed the website on Ms. Meiklejohn's computer with the URL www.desicapuano.com along with a header and a picture. She reviewed Exhibit 5 of the -- that's been entered as an exhibit, Exhibit 5 of this trial, and she confirmed that that was the package that was created by Ms. Meiklejohn.
Now, she was asked about page 22 of Exhibit 5 and she explained that this was regarding an incident when previous investigators were dealing with this case and it was learned that some material was sent to Mr. Fox by accident. And Sergeant McElroy estimates that that had occurred around the end of last year, 2022.
Sergeant McElroy also indicated that she checked the desicapuano.com website in the days before February 27th, 2023, that was just in the days before our first continuation date, Your Honour, and that the website appeared to be available for purchase on -- on GoDaddy.
In cross-examination Sergeant McElroy was asked by Mr. Fox about whether any steps were taken to ensure the pages were actually from the desicapuano.com website and she indicated that she had no knowledge of that.
I had also mentioned in this paragraph that any steps taken or not taken by Sergeant McElroy or other members of the VPD are, in the Crown's submission, irrelevant to Mr. Fox's obligation to take all necessary steps to take down the website.
She as also asked by Mr. Fox about whether she had tried to access the website shortly following his interview on May 16th and she told Mr. Fox that she had received an internal message denying her access and her explanation about that instance was that the blocked access was department specific because the analyst had been able to search it. Sergeant McElroy confirmed in her cross-examination that Ms. Meiklejohn had unrestricted access to the internet because she does open source searches.
And related to this line of questioning by Mr. Fox about Sergeant McElroy's efforts to search the website on May 16th, 2022, are the proxy server logs that were entered as Exhibit 12 which we heard a fair bit about during the course of the Crown's case. And it was Sergeant Shook and Johnny Lam who assisted the court in an analysis of these logs.
Sergeant Shook stated that from what he understood the logs are of a VPD proxy and that they show the proxy's activity with respect to the search term desicapuano.com. And he further stated, and this is at the top of page 11, that the VPD network is a monitored network that looks for threats, malware, et cetera, so when a use tries to go to a website this background program will pull in elements from that website to ensure that they are not a threat. So the proxy pre- surveys files or sites that are requested and ensures that they are safe for a user. The entry in the file names look like pieces of code that have been identified by the proxy for search and analysis. That was his review of the proxy server logs that were put before him. And he -- he indicated that references to the site indices.com in the proxy logs could be indicative of a website hosting company like GoDaddy.
Johnny Lam, who is an IT manager with the Vancouver Police Department, also testified about the proxy server logs. Mr. Lam, the Crown submits, provided the following relevant evidence. Different employees of the VPD will have differing levels of access to the internet. Most employees are only allowed to access white listed sites which have been vetted by security analysists. So if an employee tries to search a website that is not on the white list they will receive a blocked page. And Mr. Lam confirmed that the desicapuano.com URL or website is not on the white list.
He -- he indicated that IT personnel can have more access as well as other teams within the VPD such as covert teams. And he said that Hunchly users will not go through this proxy. He did confirm that, that they go through their own covert internet pipe and he won't get logs for that. The server they use is Hida [phonetic] and it is hosted on a separate network for the last two years. And he indicated that the server is called hida.vpd.bc.ca.
He indicated that Hida is a virtual server that hosts Hunchly with their own firewall server and that this is so that any Hunchly user who could introduce viruses have their own DMZ, that's a demilitarized zone, so as to not affect the rest of the organization. And this access would not be reflected on the proxy server log provided because it is through a different system.
Specifically in reviewing the proxy server logs, Mr. Lam noted the following. That when someone tries to enter the internet the proxy will always do a scan. Any access through the proxy will generate logs. The proxy server logs are security logs and they show the proxy trying to scan the site that the VPD member had entered and that it came back as negative or safe. And there are 14 events because an event is created for every file accessed on the site and none of the 14 events logged -- logged came back as a threat. If it had come back as a threat, it would be malicious that could harm the computer systems.
So in sum, all of the evidence shows that both Ms. Meiklejohn and Sergeant McElroy saw that the website was available on the internet on May 16th of 2022, Ms. Meiklejohn used Hunchly to create screen captures of the website as it was on May 16th, 2022, and further, that Sergeant McElroy made efforts but was not able to access the website herself later in the day and this is supported by the proxy server logs.
The other aspect for Your Honour to consider in proving -- or in determining whether or not Mr. Fox has breached Conditions 2 and 3 of the information is whether or not Mr. Fox had some control over the website. The Crown submits that there is sufficient evidence for Your Honour to find that he did. That's basically twofold. First of all the material that was -- that is on the website that is captured in the Hunchly printout is unique to Mr. Fox. In reviewing the material, the only reasonable inference is that Mr. Fox published or contributed to the new posts. Some of the material relied on in the new posts on the website is unique to him.
As mentioned above, he was improperly provided evidence from another file. This was the subject of one of the new posts that's entitled "VPD and Crown counsel give Patrick someone else's disclosure material." It is unlikely that any member of the public other than Mr. Fox would have information about this disclosure breach. Another of the new posts that's entitled "Judge Katheryn Denhoff and her delusional reasons for judgment" quotes at length transcripts of the trial before Judge Denhoff and her decision. Mr. Fox himself has access to both. However, this proceeding was subject to a s. 486.5(1) publication ban, and so both its transcripts and its reason for judgment could only be provided to a third party by way of a court order. And I have a copy of the B.C. Provincial Court policy with regards to that specific issue.
This was provided to Mr. Fox previously. Does Your Honour have it? Yes. Okay.
Judge:
I just want to confirm. I believe you did hand it to me the last day.
Laker:
Yes.
Judge:
It's the effective date February 10th, 2023.
Fox:
I do. The publication ban was only the identities, though, of Munoz and Capuano, not the entire thing.
Laker:
Well, yes, but because there's -- sorry.
Judge:
Let me just confirm --
Laker:
Yes.
Judge:
-- that this is what --
Laker:
Yes.
Judge:
-- you're -- you mean me to have.
Laker:
Yes, it is.
Judge:
Okay. Thank you.
Laker:
Mr. Fox just mentioned that it only related to the identity of Ms. Capuano, but the -- the relevant aspect, in the Crown's submission, is the fact that that publication ban did exist. And so an order for anyone else to get access to those documents that I've referenced already is that there has to be a court order. And as can be seen by reference to the court's own file, no such court order was ever made. No member of the public has access to these transcripts or reasons for judgment other than through Mr. Fox. And I've referenced s. 1.3(18) and 1.3(25) as those are the sections that relate to the -- the application of the publication ban to -- and the necessity for obtaining a court order.
Yes, Your Honour. And more broadly the material on the website represents a confluence of interests that is unique to Mr. Fox. Of the seven new posts observed by Ms. Meiklejohn, three relates to his ex-spouse, Ms. Capuano; three relate to Mr. Fox's past criminal proceedings; and the seventh, which is entitled "B.C. government admits this website is not illegal," provides general commentary on Mr. Fox's legal problems and the purported failure by B.C. authorities to attempt to have the website removed. Five of the seven posts purport to be by the same author, quote, editor. Two of the posts related to Ms. Capuano, instead purport to be by her, albeit with a disclaimer at the bottom of the page indicating that they are not in fact by her.
In the Crown's submission all these topics are idiosyncratic to Mr. Fox. In combination, there is no reasonable conclusion other than that Mr. Fox is the author of the posts shown in the Hunchly printouts posted on the website.
Now, the other area of evidence that supports that Mr. Fox is -- does have some degree of control over the website is the evidence that came from his phone. And that relates to the analysis of his phone contained that starts at page 40 -- sorry, paragraph 46 in the Crown's submissions.
So when Mr. Fox was arrested on May 16th his mobile phone was seized and subsequently analyzed by Sergeant Shook. Sergeant Shook created a report with his findings which has been entered as Exhibit 14. And at trial he was qualified as an -- as an expert in digital forensics, including the forensic analysis of digital devices, including the identification, preservation, extraction and interpretation of digital evidence. Sergeant Shook described his job as to extract data and prepare it for court presentation. In this case he examined data that had been tagged by Sergeant McElroy.
In sum, these are the pertinent aspects of Sergeant Shook's evidence regarding the analysis of the phone. Generally he stated that the same card is from luckymobile.ca service provider in Canada and it's usually a pay as you go, and you can buy these cards at gas stations or cellphone kiosks. He said that the phone number imported from the SIM card is 778-951-8542 and that the device user is Patrick. He confirmed that the phone can connect to the internet.
Now, page 6 of his report shows the internet searches that had been done on the phone. Mozilla Firefox is referenced and that's a web browser that allows users to connect to the internet to search for data/websites, et cetera. Sergeant Shook said that web browsers are built in such a way that you can either put a URL in the box or a search term that it will search for and what is searched for is -- was what was saved.
He said that the times are adjusted to local time values for when the entries were entered into the database which is when those search terms were entered into the search bar. He said that, for example, the search term "Google web mas" was searched on May 13th, 2022, at 6:27 p.m.
Now, with regards to Google Webmaster Tools, Google makes tools that allow people to administer websites. Google Webmaster Tools is a suite of software tools particularly for administrators and others with access to websites to monitor the usage of their website through Google and their interactions with Google search. They allow a site administrator to monitor usage of the site.
As well, specifically on May 14th, 2022, at 2:36 p.m. the search for desicapuano.com would have been entered into the address field of Firefox to be searched. It doesn't show the results of the search, just that it was searched for. Sergeant Shook also discussed page 5 of his report. He indicated that it was a compilation of user accounts that were found within various databases on the device or on the phone. He indicated that everyone who has a mobile device knows that it would be frustrating to enter a username and password every single time you want to access an application, so devices have a built- in capability to store account information to have it available to the user whenever they click on the relevant service.
He says we can extract and analyze those accounts, and he went through the various accounts that were found on the phone. So he said, for example, number 1 was patrickhfox@gmail.com and this was a user account saved in Mozilla Firefox. Number 2 was the P with a number of dots following @gmail.com and he says that the account database only retains the information the application permits it to. He said this is most likely a function of BlueMail, which is an application, a software suite that is primarily used for calendar and email syncing. It allows you to access multiple calendars and email addresses in a single place.
With regards to number 3, he said that it was an email address being used as a username. And with regards to number 4, he said that that was also similar, plus the password being reference. And he said this is the password associated to that username that is stored in that database and sometimes passwords are stored in a hash value or a seeded term, for instance number 2 that we've already discussed, or sometimes in a plain text like number 3 and 4. And he indicated that password "liz2munoz8" is what was stored in the phone associated with these two usernames.
With regards to numbers 5, 6, 7, 10, 11, and 12, they were all related to patrickhfox@gmail.com being used as a username for different applications or services. He said, for example, number 5 is from an Android calendar and number 6 is from Android maps. He said that number 8 was the same phone number as on the SIM card for the device and that it was -- here it was also the primary username for SMS/texting.
And that, finally, number 9 shows the deleted but recovered Instagram account and that this version of Instagram may not have wanted a -- may not have wanted a username stored or it could have been lost when it was deleted.
So what's of particular interest, obviously, are the usernames under the -- under numbers 3 and 4. And when he was asked more questions about those, he said that those usernames ended up on the phone by either being entered or authorized by a user to appear on the phone and that these two main methods to have the usernames on the phone, one, a user enters it manually by entering a username and password, and two, by migrating information from another source onto -- onto a device. For example, the user has other accounts and brings it onto the device in one package. And he says either way there is user input of some method.
Under cross-examination Sergeant Shook explained that with respect to numbers 3 and 4, the entries are what is stored for that account. As to whether this provides access to an account, it would have to be tested to see if they actually grant access. What this data shows is that at the time that the police acquired this data from the device there were entries in the accounts database.
As well, Sergeant Shook stated that when a file is marked with "deleted" but is then recovered, it stays flagged as having been deleted, and that was in reference to number 9, the Instagram account.
Sergeant Shook was also asked about whether some of the data could have been modified post extraction, and he replied that the method of extraction will vary but extraction programs strive for not modifying data at all or as little as possible.
In sum, Sergeant Shook's report proves that Mr. Fox had account information associated to the website on his phone. He had searched Webmaster Tools that are associated with maintaining a website and he had also searched desicapuano.com. This evidence shows that Mr. Fox had some control of the desicapuano.com website.
Mr. Fox did not call evidence in his defence. What I can say is that there appears to be a suggestion that the Crown has not proven that Ms. Meiklejohn properly searched for desicapuano.com on May 16th and that the VPD may have modified the data on his phone, but there is no factual basis to either suggestion.
So in conclusion, Your Honour, there is no question that Ms. Meiklejohn accessed the website and created the Hunchly printouts. This proves that the website was available via the internet on May 16th when Mr. Fox was on probation. In fact new posts had been uploaded. These new posts are completely unique to Mr. Fox. And further, there is no question that Mr. Fox had data on his phone at the time of his arrest on May 16th showing that he had accounts associated to the website, including passwords. As a result, there is no evidence -- or sorry, as a result, there is evidence that Mr. Fox had control over the website. A trier of fact can reasonably conclude that Mr. Fox was capable of removing the website as required by Condition 4.
The only reasonable inference from the evidence is that Mr. Fox does and is able to exercise some measure of control over the website, and once one comes to that conclusion, the Crown says that it's an inexorable conclusion that Mr. Fox was capable of removing the website and by not doing so, he failed to comply with Condition 4 of the probation order. In fact the Crown submits that the trier of fact can make a finding that Mr. Fox arranged to have the website made available on the internet and had the new information uploaded.
In Mr. Fox's prior breach, Denhoff stated at paragraphs 17 and 18 that it was absurd to suggest that a third party would pay for a website and that is entirely related -- that is entirely related to Mr. Fox's harassment of Ms. Capuano and his legal problems. This evidence assisted her in finding that Mr. Fox had control of the website.
Judge:
So I'm not going to consider --
Laker:
Yes.
Judge:
-- that paragraph.
Laker:
Yes. Further, since Mr. Fox can be found to have breached Condition 4, this means that he also breached Condition 6, which is the requirement that he not disseminate any information about Ms. Capuano. Since material that relates to her is still on the website, new material about her and that new -- okay. Sorry. Since material that relates to her is still on the website and new material about her was uploaded to the website after Mr. Fox's release and Mr. Fox has some control over that website, in the Crown's submission, and that it was still publicly available on May 16th, Mr. Fox is, in the Crown's submission, in breach of Condition 6.
So those are the Crown's submissions, subject to any questions Your Honour may have. I may have some reply depending on what Mr. Fox states in his -- in his closing submissions, but subject to any questions Your Honour may have, those are my submissions. Or the Crown's submissions, I should say, since Mr. Elias isn't present at this time.
Judge:
Thank you. Yes. And we need to stand down now for the table. Any sense of how long that might take?
Laker:
That should not take very long. Mr. Elias is just next door. Once I know where -- where the table is in his office, I can just run down --
Judge:
Okay.
Laker:
-- we can plug it in. Probably ten minutes at most to do that. I don't know if Mr. Fox needs any additional time.
Fox:
It really depends if we run into any complications with it actually working. If everything goes smoothly, then it shouldn't take more than a few moments, but if there's some compatibility issue or something, then who knows.
Laker:
Do you need any other additional time, though, Mr. Fox, just to prepare your...
Fox:
Well, admittedly I have not completed preparing all of my closing submissions because I have some appeal matters that are coming up. I have some hearings this week and next week as well, and so I ended up not having enough time to do all of that preparation plus the preparation for this. But the amount of the closing submissions that I have done that I am prepared to proceed with at this time I'm pretty sure are going to take up most of the day. And so I don't know that that's going to cause too much of an issue, the fact that I haven't finished all of them.
Judge:
Well, we'll be stood down for lunch. That will give some time to complete. So I'll stand down now and let me know when we're ready to begin. I won't take the morning break right now because I'm expecting it might be fairly brief assuming the technology works smoothly. But I'll wait to be called. Thank you.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
Laker:
And, Your Honour, I believe Mr. Fox is ready to proceed.
Judge:
Yes. Mr. Fox.
Fox:
Yes. First I apologize for taking so long with the adapter. We did figure the problem out, though, and now everything is working.
Judge:
That's good.
Fox:
And I -- I have typed up my closing submissions and I'm going to be essentially reading them, same as what the Crown was doing. So hopefully I don't fall into a pattern of monotony and sounding too mundane as I'm reading.
Judge:
Do you have a copy for me?
Fox:
Unfortunately no because it's on here. If there was more time what I would've done, and I was hoping I could've done this was send the laptop back to Mr. Layton [phonetic] and then he could print it for me and then I would have copies for everybody, but I just have the electronic one on here.
Judge:
So there's no way as it's currently set up for both me and the Crown to get printed out copies?
Fox:
That is correct. That would require the Crown taking the laptop and doing whatever they normally do to print the documents for me and that would be up to them. I don't know how they normally handle that.
Elias:
Your Honour, Ryan Elias here.
Judge:
Yes.
Elias:
I think we would need an IT person who knows how to unlock the laptop and I'm not sure if we have such a person at 222 Main Street. There are -- usually it's the folks at Hornby who do that.
Laker:
I can send -- what I'll do is I'll send a quick message to a couple of people and just see if that's something that we can accommodate over the lunch break.
Judge:
Yes. I appreciate that. All right. So that's fine. Often closing submissions are made without typed copies provided, but if they're lengthy and there's the possibility of having a written copy available, everyone does appreciate that, including me.
Fox:
Right. Now, one thing I could propose is since we have the shared screens now, of course I could always just put the file on the shared screen. My only hesitation with that is these were -- well, I was going to say these were written with -- there might be a sentence or two here or there that I might not want to state at this point, like, that I might --
Judge:
Okay.
Fox:
At the time that I was typing it it might've seemed appropriate, but I might see it now and go, maybe I'll skip that.
Judge:
Okay. Well, that's your choice.
Fox:
Right.
Judge:
Well, why don't you start. And I appreciate Crown making the offer. I'm going to ask you just before we break to lunch if you would like them to continue to pursue whether a printed out copy could be made and they'll only do that if -- if you say yes. So otherwise we'll just -- we'll just proceed --
Fox:
Right.
Judge:
-- with you.
Fox:
I could say I absolutely would definitely want them to continue to pursue that because it would be beneficial I believe, for everybody to have the printed copy. The only concern I was expressing was that if it's on the screen there's no way to -- how can I say? Well, yes, I would prefer that everybody have a printed copy. That -- that would be better rather than just relying on me reading it and hoping everybody remembers everything I said.
So regardless now, let me --
Judge:
Okay.
Fox:
I'll begin.
SUBMISSIONS BY ACCUSED:
Fox:
I'm going to start with addressing Counts 2 and 3 rather than Count 1. And with respect to Counts 2 and 3, the Crown's case is built entirely on Ms. Meiklejohn's testimony that on May 16th, 2022, she entered the host name www.desicapuano.com in the address bar of the web browser on her VPD computer and was able to access the Desi Capuano website at that location. The Crown's case is further bolstered by Detective McElroy's testimony that she stood behind Ms. Meiklejohn and observed her doing that. The Crown argues that the facts that Ms. Meiklejohn was able to do that proves the website was online and publicly accessible at that time. That's my understanding, anyway, of the Crown's arguments and their case.
So at this point I'm -- I put a web browser onto the shared screen and I've typed in www.desicapuano.com, just making sure I've got the spelling correct. And I hit "enter." And as we can see the website comes up. I can click on the links. These are the same artefacts or the same articles or pages that the Crown included in Exhibit 5. So as you can see everything is there. Certainly it appears that I'm able to access the website.
Laker:
And, Your Honour, I'm just going to express a bit of a concern about Mr. Fox doing this right now because it appears that he may be giving evidence and he is closing. And whether or not Your Honour can actually take this into account is -- is questionable.
Fox:
I -- I had considered that and my response to that would be I'm not doing this to show that I'm -- or how can I say it? My intention here, what I'm trying to show, is the fact that Ms. Meiklejohn was able to do that from her computer doesn't necessarily by itself prove that the website was actually online and publicly accessible at that time. I'm not -- by doing this I'm not trying to show that the website is publicly online. So in that respect I would say this is just to support my argument, not actually evidence.
Judge:
It seems like evidence to me.
Fox:
Okay. I would have -- hmm. Well, I -- honestly I don't know what I could say in response to that. The next thing that I was going to say, though, I was going to point out that even though I am able to bring it up on this laptop, there are two issues that -- that should become immediately apparent. The first is that the website isn't actually online. The Crown, and I assume you have the computer up there as well, Your Honour. Oh, okay.
Judge:
I just have the screen right now.
Fox:
Oh, no actual laptop or anything?
Judge:
No.
Fox:
Oh.
Judge:
I don't have it with me.
Fox:
Okay. But if you did, and the Crown has one here, anybody would be able to see that the website isn't actually online if you were to try to pul l it up. And the other issue that should become apparent from this is that this laptop doesn't have access to the internet. The network interfaces on this have been disabled.
Sorry. I'm contemplating this issue of showing the website here being accessible -- or being accessible on the laptop but certainly appearing that I'm accessing it from the internet because I've put in the URL. The problem that the Crown raised as me giving evidence -- sorry. I was -- I was intending during my cross-examination of some of the witnesses to present this to them at that time, but you may recall at that time we were having some compatibility issues with sharing the screens and so that's why at that time I moved on from it because we weren't able to figure out how to get it to -- how to share the screens at the time.
Okay. Well, I guess then I will have to accept that this would be giving evidence and I'll have to assume that Your Honour won't be able to consider this information, then, and I'll move on.
Judge:
Yes. You chose not to testify, which means that you are making submissions based on the evidence that I've heard, including anything that you believe you established by cross-examining the Crown witnesses. The difficulty with wanting to rely on something that you're introducing now which is evidence is you're not subject to cross- examination, so it's not -- it's not properly before me, then --
Fox:
Right.
Judge:
-- because it's not coming in the right manner.
Fox:
And at this point it's my understanding it would be too late for me to give evidence anyway. Is that correct? I mean for me to testify.
Judge:
Well, it would have to be an application by you, and the difficulty with it is that I've heard the Crown closing submission. But it would be something -- I don't know. Something that you could consider applying. But we've gone past that point.
Fox:
Right. Right.
Judge:
I tried to explain to you at the time, I think, not knowing how you wanted to frame your closing submissions, the importance of testifying yourself, if there was any evidence that you hadn't yet heard that you felt was important to your case. So --
Fox:
I understand.
Judge:
Okay.
Fox:
So during my cross-examination of Ms. Meiklejohn and I believe also of Detective McElroy, I had brought up the possibility or the theory that somebody had set up a fake version or fake copy of the website within VPD's network and that perhaps maybe that's what she was accessing. So the submissions that I'm going to make moving forward, then, would be based on having brought that up during those cross-examinations and not necessarily referring specifically to what is on the screen right now with this website that's on the screen.
So -- sorry. There's a whole section of my submissions here that is kind of dependent on what I just demonstrated with the website here, and so I have to skip over all of that and I'm contemplating now how that's affecting -- that is unfortunately having a very adverse effect on my submissions. But I accept that this is my own fault.
During my cross-examination of Ms. Meiklejohn and Detective McElroy I had proposed to them the possibility that a fake version of the website may have been set up within VPD's network and that I had asked them if it was possible that that's what they could have been accessing on that day and not actually a copy of the website that was publicly available on the internet. Unfortunately they had no knowledge of that, but they were pretty certain that that's not what was -- was happening.
Okay. So during the interview of me on May 15 -- or May 16th, 2022, Detective McElroy claimed that she tried to access the website from a computer in the next room. And I know that the -- the video of that interview was not admitted because I didn't testify and I didn't seek to admit that. However --
Judge:
I was just about to --
Fox:
I knew that --
Judge:
-- interrupt you.
Fox:
Because of that I made sure that I questioned Detective McElroy about her bringing that up.
Judge:
Okay. Good. And I do recall that cross- examination. So yes, any subject that properly came before me in evidence, yes.
Fox:
Right.
Judge:
Okay. So you understood what I was explaining to you about neither of the statements came before me in evidence because they were each only going to come before me should you testify?
Fox:
Right.
Judge:
Right? Okay.
Fox:
And so anything in those recordings that wasn't also brought up in the cross-examinations would not be admissible.
Judge:
Exactly.
Fox:
Or I cannot bring up at this point.
Judge:
Exactly.
Fox:
Or I could bring it up but you wouldn't be able to consider it.
Judge:
So -- but I do remember you did cross- examine Sergeant McElroy about that. I do remember that.
Fox:
And so she claimed that she had tried to access it from a computer in the next room in order to prove to me that the website was actually online, but she was unable to access it and she claimed that it was because the VPD's network was blocking her access.
Now, the time that that occurred was between 2:20 to 2:20 p.m., and unfortunately the reason that we know that that was the time was that was the timestamp in the video. But in the --
Judge:
Sorry. You said from 2:20 to 2:20?
Fox:
2:20 to 2:28 p.m.
Judge:
Okay. 2:20 to --
Fox:
That's while --
Judge:
-- 2:28. Thank you.
Fox:
That's when she was out of the room.
Judge:
Okay.
Fox:
And since that's information that I got from the video, from the timestamp at the bottom of the video, technically I guess that would not be admissible.
Judge:
No. It would -- oh, that's true.
Fox:
But I'm about to refer to what we've been referring to as the proxy logs.
Judge:
Mm-hmm.
Fox:
Because those also have the times in there. And I was going to be pointing out how the timestamp in the video corresponds with some entries in the proxy log.
Judge:
Okay.
Fox:
I just need to find where it went. Oh, here it is. Twelve. Exhibit 12.
Judge:
Yes.
Fox:
Which contains the proxy logs. So during the interview she left the room to go try to pull up the -- the website and that was between 2:20 to 2:28 p.m. And we also received in the proxy log that there were some entries which referred to desicapuano.com.siteindices.com at 2:25 p.m. and 2:22 p.m. So that corresponds to the time that she was out of the room when she said that she was going to try to pull that up for me.
But what we see in the proxy log is that there are no corresponding entries to desicapuano.com, only to desicapuano dot -- desicapuano.com.siteindices.com. My submission on that would be that Ms. McElroy -- Detective McElroy already knew -- at the time when she went into the other room to try to pull up the website, she knew that the website wasn't online and so she didn't even bother trying to -- to access the website. I would suggest that she went in the other room, Googled the domain name desicapuano.com, and as we saw from Exhibit 5, I believe it was, when you Google the domain name, the first thing that comes up is that site. Oh, sorry. Exhibit 6. The first entry that came up was the siteindices.com webpage.
And so what I believe occurred was she went in the other room, she Googled it, she clicked on that first link that came up which was siteindices.com, but she never actually attempted to pull up the website.
And there's been a lot of talk about the indices that shows in these proxy logs, but I would suggest that if -- if Detective McElroy had attempted to access the website but was locked by VPD's network, then there would be an entry in this log or in some log on the network showing that that access was blocked.
During the interview when Detective McElroy told me that she was unable to access the website from the computer in the other room, I had suggested that she could pull it up or try to access it from any other device which wouldn't go through VPD's network, and she refused to do so.
Judge:
So was that in cross-examination or just in the interview?
Fox:
I think it was in cross-examination.
Judge:
Okay.
Fox:
I'm not a hundred percent certain, though. But I would think that that would be something that I would want to make sure I got on the record. And I believe the reason -- or my submission would be the reason that Detective McElroy refused to bring it up on her cellphone or on any other device is because she knew that it would've shown that the website wasn't online. It wasn't accessible at that time.
I believe -- I believe that before Detective McElroy went into the other room to try to pull up the website she may have believed the website was online from having seen -- on Ms. Meiklejohn's computer, having seen it come up on there. But when she tried to pull it up on the other computer it didn't come up because in reality it wasn't online. And for some reason perhaps it was able to be -- an internal copy of it was able to be accessed from Ms. Meiklejohn's computer.
Getting back for a moment to the Exhibit 12 and the proxy log. There was some -- there was some discussion, if I recall correctly, during -- I think it might've been during Mr. Lam's testimony, but there was some discussion about the possibility that the siteindices.com website would've been logged in here, but perhaps the desicapuano.com website simply wasn't logged in here. Mr. Lam had explained that the users, for example Detective McElroy, are only able to access websites that are explicitly included in what he referred to as the white list, and the Crown had also mentioned that in her submissions.
It would seem to me, then, that if that were the case that would only work if desicapuano.com was not in the white list but desicapuano.com. siteindices.com is in the white list and that seems very unlikely to me that desicapuano.com. siteindices.com would be in the white list but desicapuano.com would not be. But also it gets back to this issue that if her access to the website was blocked by something on VPD's network there should be a corresponding log entry in some computer or some device on the network showing that she attempted to access something that she wasn't authorized to access.
So I have been putting forth the possibility that somebody within the VPD may have set up a fake copy of the website internally on VPD's network and that perhaps that might be what Detective -- or what Ms. McElroy -- Ms. Meiklejohn -- sorry, these two names are so close that I keep mixing them up. That may potentially be what Ms. Meiklejohn was accessing on May 16th when she thought she was pulling up the actual website. And that would raise the question, though, of why somebody within the VPD would go through the effort or try to make it appear that the website 0as online if it wasn't really online.
My response to that would be that over the past few years I have been publishing proof, a lot of proof and a lot of concrete evidence of corruption and misconduct that has been going on in the cases against me. And I also have published proof of things, for example, like the VPD inadvertently giving me somebody else's disclosure material and of Detective Dent committing perjury at one of my prior trials, the trial before Judge Rideout and then admitting on the witness stand at the trial before Judge Denhoff that yes, he did actually make false statements at that previous trial. And then there's also been -- I've been publishing proof of Crown counsel lying in court or making deliberate misrepresentations in court.
And the articles that the Crown has brought up that they're saying were on the website, the Desi Capuano website, on May 16th, the ones that were included in Exhibit 5, I believe it was, for example, the one about Judge Denhoff and her delusional reasons for judgment, the VPD and Crown giving me somebody else's disclosure material. I admit that I did write those articles and I did publish those articles, but I did not publish those to the Desi Capuano website. I do have other websites and I would have to think that the Crown must be aware of this, that I have them.
Laker:
Well -- and, Your Honour, I'm just -- like, I -- I'm hearing what Mr. Fox is saying, but I'm also concerned about the fact that he is making quite a number of admissions here, but at the same time he's also potentially giving evidence. And I just want that to be -- to be noted to him.
Judge:
I mean, that's certainly -- thank you, Ms. Laker. For you to say "I admit I wrote and published those articles but I didn't" -- that's evidence.
Fox:
Okay. Let me think how I can rephrase this, then, so that instead of it being evidence it's -- if I phrase it as it's my submission, well, I -- I could say that it is my submission that I do have other websites that -- would that be evidence?
Judge:
Well, if you want me to consider it in reaching a decision on the charges against you here, yes. The closing submissions are meant to summarize what the evidence proves --
Fox:
Right.
Judge:
-- from the perspective of either the Crown or you, Mr. Fox. So it's -- at this stage you're limited to what's been put before me by the Crown witnesses and anything that you believe you secured by cross-examining those witnesses.
Fox:
The point that I'm trying to make is that some of the content that appears to be on this website without considering whether the website was online or it was an internal website, but some of these articles -- I don't dispute that I would have written them. The Crown is alleging that I did write them and I'm not disputing that I wrote those particular ones. What is in dispute, what I am disputing, though, is whether or not I had published those to the desicapuano.com website. Because I'm trying to show that -- that the Crown has failed to step or has failed to prove that I published those on -- sorry. So much of this is dependent on what I was expecting to present earlier about the website, even though the website appeared to be online, it actually isn't online, and so now this is kind of complicating everything that's coming after it.
I had assumed that the issue of the website not being online wouldn't really be evidence because it would be a given. I mean, it's a simple fact that it's not online. And so I had assumed that by showing that I'm able to bring up on this laptop what appears to be the website and it appears to be online in fact isn't in order to show that if Ms. Meiklejohn had typed in the URL on her computer and appeared to bring up the website that that by itself doesn't necessarily mean that the website was online. And so that's why when I was preparing this it didn't seem to me that this was actually evidence. It was more argument.
Judge:
It is evidence because what -- what it's -- what I think it's trying to establish is undermine the reliability or the credibility of Ms. Meiklejohn's evidence. And it's -- it's the same observation. You -- you could have presented that evidence and be subject to cross-examination on it, but what's not permitted is to introduce it at the end and not be subject to cross-examination on it.
Fox:
Right. And I have no objection to testifying and being cross-examined on the testimony that I make. My concern is as what's happened in some of the previous trials where Crown counsel then cross-examines me on other things that have absolutely nothing to do with it and so that was part of the reason I decided not to testify in this case. I didn't want a similar situation to arise.
Judge:
Well, the rules of cross-examination are guided by relevance, but they can often go beyond what someone chooses to focus on when they testify. There's a latitude allowed as long as it's relevant.
Fox:
Mm-hmm. Okay. Then I would say the Crown argues that there were some articles that appear to be published on the website at the time that Detective -- at the time that Ms. McElroy -- at the time that Ms. Meiklejohn appeared to be accessing the website. And it is clear that some of those articles -- I'm referring not to the ones about Ms. Capuano -- yes, Ms. Capuano, but the ones relating to my legal proceedings. It is clear that some of those articles raise some issues about allegations of corruption and misconduct and impropriety that have been going on in the cases, the prosecutions against me and that certain parties are named in there and evidence is provided against those certain parties, including some staff of the VPD such as Detective Yingling and Detective Dent.
I do want to emphasize, though, that I am -- I am not saying that I had any involvement in the three articles that the Crown is claiming were on the website that pertain to Ms. Capuano. I would unequivocally state I have --
Judge:
So --
Fox:
Right.
Judge:
This -- this is evidence.
Laker:
Your Honour, perhaps we could just stand down very briefly and I could just have a quick conversation with Mr. Fox.
Judge:
Yes. I mean, you asked me, can I apply? I said you can, and then I said, you know, we've come beyond that. But I'm expecting perhaps that's what the Crown might wish to -- and I'm not going to get into it. I'll stand down. I'll let you talk about it.
Laker:
Yes.
Judge:
It just seems as though, Mr. Fox, what -- what you want to say in submissions keeps coming across and in fact is evidence. So I can't consider it unless it was evidence in the trial. I'll stand down. Please call me --
Laker:
Yes.
Judge:
-- when -- when we're ready to resume.
Laker:
Yes. Thank you.
Clerk:
Order in court.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
Laker:
Your Honour, Laker, initial T., for the Crown. Recalling the Fox matter. We've had a discussion with Mr. Fox. What we've determined is that the Crown is prepared to make a couple of admissions at this point that will assist Mr. Fox in continuing his closing submissions. If we run into an issue again with regards to him starting to give evidence what we can certainly do is reconsider whether or not it's necessary for -- for him to reapply to reopen his defence case. But at the same time in speaking about it all and taking into account that we're now on day 7 of the trial, our proposed suggestion is that we just try and get through his closing submissions and if it's necessary, we can sort out whether or not some admissions can be made to facilitate that.
That's -- I think that that's how we're going to proceed. What we can do is advise Your Honour the admissions that we're prepared to make at this time, and we can certainly type those up over the lunch break so that Your Honour has those in hand. And then the hope is that we can continue. I think -- what I was -- what we were discussing with Mr. Fox is that in many respects a lot of his argument if he's just framing it in a slightly different way, they are submissions. And so what we can certainly do is if the issue keeps coming up, certainly sort of address it in that way. In that -- in that he can certainly just -- for instance -- sorry. For instance, when he was discussing the fact about who was the author of certain articles and whether or not certain articles were posted to the website, what the Crown advised him is that he -- that his argument is that the Crown hasn't proven that he is the author of certain articles.
So -- so hopefully what we can do is sort of rein in Mr. Fox's submissions so that he's not inclined to give evidence and that he's going to focus on attacking the strength of the Crown's case, and -- but if we keep sort of delving into the -- the issue of him wanting to give evidence, we can certainly revisit whether or not it's necessary for him to take the stand. But --
Judge:
Okay. And, Mr. Fox --
Laker:
But we will find out.
Judge:
-- you're content with this, this discussion and the admissions that I'll hear about now, and then you can continue making your submissions?
Fox:
Yes, I am content with it and I do want to say for the record that at this point I don't have any objection to taking the stand if that is going to be necessary.
Judge:
Right. Well, that would have to be an application that --
Fox:
Right.
Judge:
-- you would make and I would consider it after hearing from the Crown. And it's in my discretion to permit it. The issues would be trial fairness broadly speaking, is there any prejudice to the Crown by permitting it. If I hear that application, those are chief -- the chief things I would be considering.
But for now why don't we -- why don't I hear those admissions, what they are, and then invite you to continue, Mr. Fox.
Elias:
So, Your Honour, the two admissions that we -- that we drafted up in discussion with Mr. Fox is, first, that it is possible that a website can appear to be accessed even when it is not online as a general proposition.
Judge:
Okay.
Elias:
And that, again as a general proposition, the second admission is that the VPD as an organization has the capability to easily check what IP address a URL results to. That's the language that Mr. Fox discussed with us. And so he can argue on the basis of that general proposition, I think make the arguments he wishes to make which the Crown admits sort of the underlying principle.
Judge:
All right. And you'll get those to me in writing as well.
Elias:
Yes, of course.
Laker:
Yes.
Judge:
I've taken note, but I want to -- and those are -- that confirms what you expected the Crown to admit?
Fox:
Yes. I'm content with that for now. Yes.
Judge:
Okay. All right. Please continue.
SUBMISSIONS BY ACCUSED, CONTINUING:
Fox:
Sorry. I'm just looking through my notes here and seeing -- incorporating these recent developments now into the submissions that I should be making here.
So it would be my submission that on May 16th, 2022, when Ms. Meiklejohn appeared to access the website from her VPD computer even though it appeared to her that she was accessing the website, she was in fact accessing some other website, perhaps some fake or dummy website set up within the VPD's network and not actually something that was publicly accessible out on the internet. And I would say that this would explain why it was that there were no log entries showing any attempted accesses to the domain name desicapuano.com at that time in the logs that we had seen in Exhibit 12.
If those requests -- sorry. I need to think if this was explained. If the requests from Ms. Meiklejohn's web browser were being directed to -- sorry. There's -- there's no evidence for that. Okay. Then I would -- I would submit that if those requests were being directed to an internal computer that had a fake copy of the website running on it, then those requests, meaning at the network level, the -- the IP packets on the network, would not have been forwarded out to the internet and therefore there would be no log entries corresponding to them in any of the security or network devices on VPD's network. And again that would explain why there was nothing showing in the network logs that we saw in Exhibit 12.
Earlier I had referred to when -- during the interview when Detective McElroy had gone into the other room to try to access the website, but then she was unable to and she came back in. And it's just I'm not sure if I had completed this train of thought in my submissions earlier, and so I'm kind of going over it again. When she came back, when she explained that she was unable to access the website, and I had proposed to her that she could use another device like a mobile phone or some other device that wouldn't go through VPD's network and she refused to at that time -- oh, yes. Okay. I remember now I did --
Judge:
Yes.
Fox:
-- cover this earlier.
Judge:
Yes.
Fox:
And that it was my submission that the reason she chose not to do that was because she knew that if she did, then it would show that the website wasn't online. Ah yes, okay. And then I got into the discussion of why somebody within the VPD would go through the trouble of setting up a fake website internally. And I believe that's kind of where we -- that would've required additional evidence. So now I can proceed with some of these submissions.
I had mentioned earlier about how I had published articles or I published on the internet evidence about certain parties within the VPD making false statements at one of my trials which I had said that they had committed perjury. And at a subsequent trial then on the witness stand they admitted that they had made those false statements. And of course the issue about VPD inadvertently giving me somebody else's disclosure material which the article about that was included in the material the Crown had provided as an exhibit.
Now, I would say that the Crown -- it is my submission that the Crown has failed to prove that I published those articles on the Desi Capuano website. I'm not disputing that the articles were published on the internet, but I'm saying that it is my position that the Crown has failed to prove that I published them on the Desi Capuano website.
Sorry. We're getting into an area here that I had discussed with the Crown while we were stood down that it seems to me -- it seems to me if I just leave it at that, the explanation is not very plausible without explaining that they were published to a different site, but then there's no evidence of that. Well, it would be my submission that those articles were in fact published to a different site that I do run and that they were copied either onto the Desi Capuano site by whoever's running the Desi Capuano site, or since I'm saying that what Ms. Meiklejohn accessed on that day wasn't actually the Desi Capuano site, it was just some fake site set up internally within VPD's network, that they were copied into that fake site.
Judge:
I mean, I think the piece about it was published to a different -- you published them to a different website, that's evidence.
Laker:
Yes. And I -- I think the way we could address that is that it's an alternative theory that -- that Mr. Fox is proposing as to how those articles could have ended upon the desicapuano.com website, which again goes to his assertion that the Crown hasn't proven that those articles were in fact published by him on the desicapuano.com website.
Fox:
You see, the thing is I -- I don't want to claim that I didn't write those articles because, I mean, that would be unbelievable. That would be unrealistic and it would be silly for me to try to deny that. And if I stand here before you and say I didn't write those, then even I wouldn't believe that.
Laker:
And I'm -- the Crown is certainly content with that admission being made by Mr. Fox and there's no need for the Crown to further cross-examine him on that assertion. So we can certainly include that in -- in possible admissions that Mr. Fox was -- did -- was the author of the articles that relate to government corruption on the -- on the desicapuano.com website. Or that you were just the author of the --
Fox:
I was the author of them.
Laker:
Yes.
Fox:
I just wasn't involved in them being put onto the Desi Capuano website. That's --
Laker:
Yeah.
Fox:
-- my submission.
Laker:
Which ultimately is that he's saying that the Crown hasn't proven that he was the individual who posted the articles -- those articles on the desicapuano.com website.
Fox:
Right.
Laker:
Yes.
Fox:
I should also mention, though, as a caveat because I'm admitting that I did write those articles. In the versions that I wrote, any references to Desiree Capuano were replaced with a placeholder. I didn't put her name in there because I'm prohibited from doing that and so instead wherever her name would've appeared, instead it just had the initials DC. When that information was copied over to what's on here, whoever copied it would've replaced those with her name. Of course -- well, yeah, I guess that would be relevant because even if I published those to a different website, if I mention her name in the article that breaches the probation conditions. So I would want to be clear about that that I didn't use her name.
Okay. So getting back to my submissions about why I believe somebody in the VPD would create a fake website internally, et cetera, for this. I don't believe there is any question that -- that the content that I have been publishing about the corruption and misconduct in my cases and in the justice system in general is very provocative and very likely to subject me to retaliation from police, prosecutors and possibly even some judges. And I don't think that setting up a fake website, basically a fayade of the website in order to support arresting me -- arresting and imprisoning me again is all that farfetched of an idea considering the potential damage that is being caused by exposing the corruption and misconduct.
For example, publishing the fact and proof that Detective Nancy Yingling who also performs the extraction of the data from my phone in this matter, Detective Kyle Dent and Crown Counsel Chris Johnson were all involved in mistakenly giving me someone else's disclosure materials which included personal information about the victim in that other case and that Detective Kyle Dent committed perjury in one of my trials and admitted to it while on the witness stand in another of my trials, a fact which by itself, it's my belief anyway, is enough to end his career in law enforcement. Given that I published that type of information and the proof of it on the internet, I believe it provides a clear incentive for certain members of the VPD to throw together a simple fake mockup of the Desi Capuano website in order to justify arresting me and commencing yet another prosecution resulting in yet another year or more in custody.
So the point of all of those submissions was to explain why I believe it is plausible that somebody within the VPD would have put together a simple fake mockup of the website so that it would appear that it's online in order to justify my arrest and then another prosecution and another extended period of time in custody basically as retaliation for -- for publishing information that could have seriously adverse consequences to some members of the VPD.
In addition -- in addition to the possibility that the VPD -- oh -- threw together a fake website to justify my arrest, it is just as feasible that the Crown did so. Crown has been prosecuting and imprisoning me over the past seven years for what I believe is to save face because they falsely believe I am thumbing my nose at the system, playing a game of chicken with them and defying them and defying the justice system as a whole and because I have been publicly exposing their corruption and misconduct and possibly, in my opinion, ineptitude. Sorry. That was one of the parts there that I thought maybe I might not want to have on the screen as I'm reading this, but it's -- it's my belief that that is part of it, so...
That claim is supported by the following. One, Crown Counsel Chris Johnson admitted on the record in court -- oh. There was -- okay. I wasn't sure about this. I know that the Crown -- like, I know that the Crown can provide and the court can accept previous judgments that were made by the courts without it having to go through evidence. I'm not sure, though, if that applies to transcripts as well of previous proceedings.
Judge:
No. And I wouldn't necessarily -- I mean, the general rule is decide this case based on the evidence presented in this case. I wouldn't consider transcripts or what was said in prior --
Fox:
Right, right.
Judge:
-- proceedings regarding you or regarding anyone else.
Fox:
Right. Well, what I'm about to get into here is I'm making submissions to show why I believe that it's plausible that the Crown would have some involvement in going along with setting up this fake website, you know, so they can justify another prosecution. And I'm going to be referring to statements that were made by Crown counsel in some of my previous hearings that are contained in the transcripts.
Judge:
That wouldn't be admissible in front of me.
Fox:
Oh. Can I -- would it be admissible for me to say that the Crown did make these admissions or did make these statements in court and because of these statements, in my mind it -- it shows that -- that the Crown's purpose in these prosecutions is improper. That they're doing this as retaliation because based on these admissions that they've made, I mean, they clearly believe that I'm playing a game of chicken with them. I mean, literally that's how he stated it in -- in court. He said that the government believes that Mr. Fox is engaging in a game of chicken and that they can't back down.
Judge:
Well, I can confirm that I read that statement in relation to this prosecution when the matter was first before the court and it was being considered for bail.
Fox:
Yes.
Judge:
So that is properly before me.
Fox:
Okay. But the statements of Mr. Johnson, in the matter that was before Judge Rideout he stated in court one time on the record that the reason I'm in court, the reason I'm being prosecuted, is because my disclosure material keeps ending up on the internet. That, though, was not brought up previously in the trial. So is that admissible?
Laker:
Your Honour, I would also just sort of question the relevance of that at this particular trial --
Fox:
Right.
Laker:
-- that's before Your Honour. I -- I recognize that what Mr. Fox is saying is that there are sort of almost alternate suspects with regards to who is -- as to how this website came about on May the 16th. And -- and that that is the -- that is the bulk of his submission relating to Counts 2 and 3. So I certainly don't take issue with him making those submissions to Your Honour.
I don't think it's necessary for him to necessarily go into what Mr. Johnson may or may not have said in previous matters.
Fox:
The reason I believe it's relevant is because I believe it shows a pattern on the part of the Crown that they acknowledge that these prosecutions are really about either retaliation against me for publishing stuff that's making them look bad or because they have this belief that I'm playing this game of chicken and that they don't want to be the ones to back down. This is -- these are admissions that have occurred over a period of time. It's not just one statement made one time. Mr. Johnson's statement was from an appearance in February of 2021.
Judge:
Okay. So have you -- I'm just looking at the time. We're going to stop for lunch now.
Fox:
Sure.
Laker:
Oh, okay.
Judge:
But it may be that -- essentially as I'm understanding your submission it is that others, not you, have motive here. And you want to give me examples of how you say that that has happened. It may be that this could also be approached in the same way. Crown might look at what it is perhaps that -- you know, a few discrete -- you want to give some examples and maybe it could be dealt with in the same way. If -- if it's something Crown has knowledge of they might be prepared to admit it and you can then give the example to me.
Fox:
Okay.
Judge:
I wouldn't normally hear that. I would hear what -- what Crown has said in a previous prosecution, but I understand your position of why you want me to hear it. And I also think may be crown won't -- isn't necessarily prejudiced and could be able to perhaps admit that.
Laker:
Yes.
Judge:
So we'll -- we'll stand down, returning at 2:00. And I'll come back at 2:00 unless you think you would like a few minutes just around 2:00 to talk about that.
Laker:
Yes. Thank you, Your Honour.
Judge:
Okay. So why don't I come back at 2:10, okay?
Fox:
Thank you.
Clerk:
Order in court.
(PROCEEDINGS ADJOURNED FOR NOON RECESS)
(PROCEEDINGS RECONVENED)
Laker:
Your Honour, Laker, initial T., for the Crown. We've got the admissions. I'm just -- sorry. I just realized I hadn't signed them. I'll have Mr. Fox just quickly review.
So I will hand that up. Would Your Honour like another copy?
Judge:
Yes.
Laker:
Okay. I'll just...
Judge:
So I'll give the original to -- and I -- by consent I take it these would be filed as an exhibit -- the next exhibit on the trial even though we're in closing submissions.
Laker:
Yes. Yes.
Judge:
Yes. I'll grant that. And what exhibit number is this?
Laker:
It is -- I think it's 13.
Clerk:
Fifteen.
Laker:
Oh, 15. Goodness.
Judge:
Exhibit 15. Thank you.
EXHIBIT 15: Admission of fact document dated April 19, 2023
Judge:
All right. So, Mr. Fox, I see something up on the screen there. Is this where there is another admission that was going to be made, or...
Laker:
Yes. Mr. Fox does want to bring the court's attention to a comment made by Mr. Johnson previously. The Crown takes no issue with it. I haven't drafted that into the admissions of fact because they just came up, but we can certainly facilitate possibly printing off this page and attaching it to another admission of fact if necessary or -- depending on how Your Honour wants to deal with it.
Judge:
All right. Well, Mr. Fox, where -- where is this excerpt taken from?
Fox:
This --
Judge:
What date? What --
Fox:
This was part of what we were discussing before we broke for lunch. This was the February 2nd, 2021, appearance before Judge Rideout in that matter, the 244069-7-B case.
Judge:
Was this at the trial?
Fox:
No, no. This was -- this was after the trial, prior to the sentencing. What -- what kind of --
Laker:
A fix date for sentencing, Your Honour.
Fox:
Okay.
Judge:
Oh. Thank you. Okay.
Fox:
And -- yes. The relevant part here that was highlighted is just where it's my submission that Mr. Johnson is admitting here is that the reason he believes that I'm being prosecuted or that I'm in jail in going through all of this is because my disclosure material keeps getting published on the internet. And this was -- this goes with what I was saying earlier before we broke for lunch. I was pointing out some of the prior statements that Crown counsel has made over the past few years which lead me to believe that the reason they're prosecuting me is more about saving face and about retaliation for things that I've published that might embarrass them or make them look bad.
Judge:
So if you could just -- you've highlighted a portion. I haven't had a chance to read that portion yet. What -- what does it say? It looks like it's you that's talking.
Fox:
Yes. First it's -- it's me. We were discussing -- I was explaining that I still needed a copy of the disclosure to prepare for sentencing because the Crown had taken the disclosure material back. And so the part that I've highlighted here, I'm explaining to the court and to Mr. Johnson that if Mr. Johnson's concern is that I'm going to publish the disclosure material and that's why they don't want to give me the disclosure material back, he can rest assured that I already have another copy of it. I just don't have it here in the jail, and so it's going to be published whether he gives me another copy or not. And so that's -- that paragraph where I'm speaking that's what I'm explaining to him.
Judge:
Okay. Do you want to read what you've highlighted into the record just so --
Fox:
Oh.
Judge:
And I can read it at the same time as you because as I've said, I haven't had a chance to read it.
Fox:
Sure. Certainly. So I say [as read in]:
Wonderful. And if Mr. Johnson has any concerns about me publishing the material or such he can rest assured I already have a copy of that material. I just don't have it here in the jail. So it is going to be published. I mean --
Judge:
Oh.
Fox:
Sorry. Screensaver. "I mean, providing a" -- [as read in]:
So it is going to published. I mean, providing me a copy, not providing a copy to me here right now isn't going to affect that at all.
And then the judge, Judge Rideout, responded yes. And Mr. Johnson said [as read in]:
I think that maybe why you're here today, Mr. Fox, is because it was published.
And then Judge Rideout again said yes.
Judge:
Okay. So in this context, what material are you speaking about?
Fox:
That was the disclosure material from that case, from the 244069-7-D, which was the trial that was before Judge Rideout.
Judge:
Okay.
Fox:
And I'm not saying that I believe that this has any direct relevance to the current charges or to the current trial, but it's my belief that this shows that there's a history on the part of the Crown of using these prosecutions as a way to either get back at me or as retaliation for having published information and evidence that would make them look bad. Which I further argue, then, provides the incentive for them to go along with this idea of creating this -- or allowing the VPD to rely on this fake version of the website or this fa~ade, really, of the website in order to justify the current charges.
I can close this window or I'll just leave it there, if you want.
Judge:
That's fine.
Fox:
Okay. So then my next point, again what we were discussing before we broke for lunch. Another statement or group of statements made by the Crown in my judicial interim release hearing in this matter, I had mentioned earlier about Mr. Flanders saying that he believes -- or that the government believes I'm engaging them in a game of chicken. And you had mentioned that you recall reading that from the transcripts from the bail hearings. But in those bail hearings there was actually another statement made by Mr. Flanders which I believe also shows that the Crown's real purpose with these prosecutions against me and shows that they would be inclined, or that I believe they would be inclined to proceeding with this fake website, or allowing this fake website as evidence.
In the bail hearing he mentioned about how these proceedings against me have gotten a lot of media attention. Oh, and he said that I have basically been thumbing my nose at the system and because I have received a lot of media coverage over this, it would bring the administration of justice into disrepute if I were to be released. And that was in the transcripts from that bail hearing, which I don't have an electronic copy of, so I couldn't put it on the screen.
So, in my submissions, this also proves that the B.C. Prosecution Service is prosecuting me because they believe I am playing games with them or playing a game of chicken and because of the media coverage that it has gotten, and for those reasons they feel like or they believe that they cannot be the ones to back down on this.
Judge:
So does Crown have any issue with the paraphrasing of what Mr. Fox just said was said at that bail hearing here?
Laker:
No, I don't, Your Honour.
Fox:
If -- if you'd like I could actually read in verbatim what it was that Mr. Flanders had said about the news media coverage. I mean, I don't know if it's really too important, but...
Judge:
No. You've summarized it fine.
Fox:
Okay.
Judge:
I just wanted to see if the Crown had any objection to you referring to it.
Fox:
So I go on, then, to say -- and this is my submissions now. I'm talking about -- from a transcript. Sorry. I need to change what I have written down here.
It is my belief that the Crown knows about the R. v. Fox website where I've been publishing all of the material about my legal proceedings along with the very sarcastic and antagonistic commentaries.
And while I was -- sorry. And from May 12th through May 14th of 2022 while I was out of custody -- sorry. I'm seeing something here that I believe amounts to evidence. Well -- so while I was out of custody between those dates May 12th through the 14th, a few days before I was arrested, there was a huge amount of new content added to the R. v. Fox website which really made the VPD, the RCMP, the BCPS and possibly certain judges look very, very bad and foolish, and I believe that that would be evidence because there wasn't actually anything --
Laker:
Sorry.
Fox:
-- supporting that.
Laker:
What -- what dates were you referring to?
Fox:
May 12th through the 14th. And then I was arrested on the 16th.
Laker:
Well, I think that relates to the Hunchly printouts. Doesn't -- does it not?
Fox:
No. No. The Hunchly printouts were on the 3rd. It showed that the website was offline and then on the 16th -- but, see --
Judge:
So that is -- that is evidence, though.
Fox:
Yeah.
Judge:
I mean, the Crown wasn't objecting to that, but you're suggesting that -- you're saying, if I'm understanding you correctly, that you did something between May 12th and 14th and that provoked a reaction. You believe that provoked a reaction.
Fox:
Yes. Yes. And --
Judge:
That's evidence, though.
Fox:
Right. So let's forget all of that. Sorry. I mean, some of that content that was published at that time on the other website is actually now what the Crown is saying was on the Desi Capuano site.
Judge:
I -- this is the first I've heard about this other website. There was no evidence about in the trial.
Fox:
Right.
Laker:
Yes.
Judge:
And I don't know...
Fox:
That is correct. There was no evidence of it at the trial. It didn't come up at all. I didn't bring it up because it simply wasn't relevant to the lines of questioning I was pursuing. And --
Judge:
So it can't be relevant now --
Fox:
Right.
Judge:
-- unless it was spoken about, unless it was in evidence at the trial.
Fox:
Understood. And again, though, this all just goes back to my position that the reason the B.C. Prosecution Service is allowing this thing to go on with this fake website is because of this -- because I made them look bad publicly, et cetera. So I might even be able to just move on from that whole line of reasoning.
Okay. So I'll skip over that stuff. And then I'll say that considering statements that have been made by me publicly in the news media and on various websites, but I'm not referring to the Desi Capuano website. I'm talking about other websites in general.
So I -- I submit that there are parties within the B.C. Prosecution Service whom I have made look very bad and I have caused notable -- notable embarrassment for over the past few years. And given the copious evidence I have -- I have of hose parties lying to the court, including in a sworn affidavit, it is not such a far stretch for them to claim certain content which was published on another website was published on the Desi Capuano site -- website.
Sorry. I was changing the wording of that as I was reading it. So --
Judge:
It's --
Fox:
My --
Judge:
It's your belief that you're, I suppose, giving me in the form of an argument insulated from any sort of cross-examination or testing of that belief. It's problematic.
Fox:
Well, I would say, then, let's ignore that completely for the time being because any actions related to what appears to be the website that Ms. Meiklejohn may have accessed on that day I believe would have been engaged in by the VPD, not by the Crown.
I -- I don't believe that the -- that the Crown had somebody in the VPD go in and set up a fake website and stuff. I'm sure it was somebody inside the VPD that would've done it. So whether or not the Crown had any incentive or motive to conspire or be involved in that probably doesn't really matter that much. I mean, it's more an issue of whether it's plausible that someone in the VPD would've -- would've done that. And -- so I'll move on from that, then.
So the next issue, though, that I would bring up would be regarding the IP address of the website. During my cross-examination of Ms. Meiklejohn and Detective McElroy I asked them about what steps they had taken to verify the IP address of the computer the website was running on. They both said they had not taken any such steps. They made no attempts to determine the IP address of the webserver whatsoever.
I personally find this very extremely -- or find this extremely difficult to believe with all the child pornography-type cases the VPD has investigated and all the cases where a person was accused of having certain content on their computer and sharing that content with others illegally, cases where the VPD used the IP address of the accused's computer in order to prove that that was the computer the content came from, yet we're to believe that in this case the VPD expressly did absolutely nothing to determine or record the IP address of the computer they claim the website was being accessed from.
A host name such as www.desicapuano.com is like an alias or a nickname. It doesn't necessarily refer to any particular computer at any particular time. A host name is...
Judge:
Are you pausing 'cause it sounds like evidence again?
Fox:
Yes. And I apologize. It's starting to become apparent to me that part of what happened here is a lot of this seems very obvious or second nature to me because my career as a software engineer, I work in computers, and I would take a lot of this for granted as just being common knowledge that everybody would know. But as I read it now, I realize that it probably isn't.
Judge:
Well, I suppose the question is, is what you want to say based on the evidence I've heard in the case? If you cross-examined about this, if you gave these suggestions to the Crown witnesses and I have their answers to consider, that's a fair area for you to go to.
Fox:
I did cross-examine them about the IP address. I'm trying to remember, though, if we really went into any detail about why the -- I didn't make notes about that.
Well, it would be my submission that a host name, for example, www.desicapuano.com, is -- can be associated with an IP address but that association can be changed at any time by anybody who would have administrative access to the name resolution service being used on a given computer. And I would say that what was shown earlier by showing that I was able to appear to pull up the website from this computer, so the Crown's admission that --
Judge:
So the -- the whole idea that an IP address can be changed by somebody who has certain credentials that wasn't in evidence before me.
Fox:
But not actually changing the IP address but changing the host name associated with that IP address. When I was speaking at the trial about somebody going in and changing the DNS entries, for example, so that it would point to a different server, Sergeant Shook would've had knowledge of that but I don't think that I questioned him on that. I was going to question Mr. Lam on that, but -- I'll move on from that, then.
It is simply incomprehensible that when investigating a l legations of internet-related crimes the VPD would only record the DNS host name, not the IP address. As we've seen earlier, the host name -- the host name proves absolutely nothing. What I mean by -- as we've seen earlier, that would be referring to when I was able to pull up the website which...
Judge:
Well, you do have the admission that it's possible that a website can appear to be accessed even when it is not online.
Fox:
Right. And given that admission I think then it -- that I -- well, I think it's reasonable, then, to conclude that the Crown would be admitting that a host name -- I'll move on.
Okay. The IP address of the computer www.desicapuano.com was associated with at the time Ms. Meiklejohn accessed it would have told us, A, whether it was internal to the VPD's network or external on the internet; and B, if it was on the internet, who currently as of the time it was checked owns that IP address and what computer or server it was assigned to. What I mean by that, what my point is with that is if they had recorded the IP address, then at any point during -- like, leading up to the trial or even at the trial it would have been able to be determined which computer on the interne the website was actually running on and who -- for example, like, which -- which hosting provider, let's say GoDaddy or some other hosting provider, actually owned that IP address.
So in other words it would've been possible to do some investigation and verify what computer it was actually running on and whether or not it was actually online at that time. As opposed to what happened where they only recorded the URL and so there's no way to go back and check which computer it was on or whether it was on the internet or internal or who may have owned the computer that it might have been running on.
So -- so with that, the IP address I mean, the VPD could have said, for example, it was running on the computer with such and such IP address which was owned by, for example, GoDaddy, or they could have said it was running on this computer with this other IP address which is actually internal to our network.
Judge:
So I'm -- I'm having a hard time following you here.
Fox:
Okay.
Judge:
I didn't hear evidence about this. It sounds as though it's getting into evidence that would be expert evidence, the IP address being owned by GoDaddy.
Fox:
Right. Right.
Judge:
I didn't think IP addresses were owned by anybody. I thought they were ways that the location of a device -- but again, then I'm just telling you what -- what I personally understand.
Fox:
Right.
Judge:
I didn't hear evidence about this --
Fox:
Right. Right.
Judge:
-- I suppose is -- is my main reason for --
Fox:
Okay. And I -- I can explain that what I'm explaining here is that if the police did have an were able to provide an IP address, this is information that -- at the trial that we would have been able to determine, but because they didn't have the IP address and they didn't disclose that, there was no way for the defence or Crown or anyone to actually investigate these matters and to determine things like, for example, who -- and I put quotes around -- even in my notes here around "owns the IP address." Because you're correct, nobody actually owns an address but they lease the right to use a block of addresses for a period of time. And so that's what I meant by "own." It's just easier to say that they owned the address.
So these -- these aren't matters that came up at the trial because since there was no IP address there was no -- since -- since the police didn't --
Judge:
Well --
Fox:
-- have the IP address, there was no line of questioning to pursue with it.
Judge:
I think it -- my recollection is that discrete issue came up in the sense that you did cross-examine two witnesses about whether -- about the IP address.
Fox:
Right.
Judge:
So to the extent that you're saying there wasn't an IP address, that wasn't -- didn't form part of the investigation. Yes, I --
Fox:
Right. And --
Judge:
That's -- I think that that's -- that's what you're telling me and I should consider that and say that's lacking; it should've been there.
Fox:
Yes. And I do have further submissions that I'm going to get to in a moment dealing with my belief that things like the IP address are information that the police should have obtained and they should have known because as I've said, they've investigated similar things before where they would use the IP address to determine which computer somebody was gaining material from.
Judge:
I just want to make sure Crown agrees with me that there was evidence before me about the IP address. I'm having a look at --
Elias:
Your Honour, I -- I reviewed the cross- examination, at least my notes of Catherine Meiklejohn just now, and that was discussed with her.
Judge:
Okay. Thank you.
Elias:
And my recollection is it was with Constable -- with Sergeant McElroy as well, although I didn't find that note.
Judge:
Thank you. That was my recollection too, but -- okay.
Fox:
And next I go -- this next part I was going to demonstrate something else on the laptop here, but you said the Crown has already made an admission about it, so...
I was going to make the point about how simple and quick it would have been for the VPD to determine the IP address that was associated or that the host name www.desiree -- desicapuano.com was associated with. I showed the Crown earlier and it literally took only a few seconds to open a command window and type in the command. And so they agreed that and -- they agreed with me on that and so that's why admission number 2 was made.
As part of the investigation in this matter, the VPD should have determined the actual IP address, the host name www.desicapuano.com. And I should say at this point all the references I'm making to www.desiree -- or .desicapuano.com apply equally to desicapuano.com because if you access - - if you --
Judge:
Equally to Desiree Capuano?
Fox:
No, no. Meaning without the WWW part.
Judge:
Oh, see. Okay.
Fox:
Like, because they were both pointing to the same IP address. And so whether you tried to -- like, if I were to go in the web browser that I have open here I could also access it without the WWW.
Judge:
Right. I heard that from Sergeant Shook and know that from...
Fox:
I see. I just wanted to clarify that in case there was some question later about --
Judge:
Okay.
Fox:
So as part of the investigation in this matter, the VPD should have determined the actual IP address the host name www.desicapuano.com was resolving to and they should have recorded that information. Their failure to do so means that it is now impossible to determine what computer, if any, Ms. Meiklejohn was actually connecting to when she supposedly accessed the website.
I believe, or I submit, that what happened here was that they did -- and when I say "they" I mean Ms. Meiklejohn and Detective McElroy. They did check the IP address, but when they found that it was an internal address and that the website wasn't actually on the internet, they decided to simply claim they never checked it. But I obviously have no evidence to support that. That's just my own belief on the matter.
And next I go into a discussion or I make some submissions now regarding the network logs, or what we've been referring to as the proxy logs. This part, it gets a little bit lengthy, so I just want to check with everybody. Should I proceed, or...
Judge:
Go ahead. No.
Fox:
Okay. In addition to the foregoing there is the fact that the network logs which were searched by Mr. Lam for any references to the string desicapuano.com show there were no attempts to access the domain name desicapuano.com on May 16th, 2022.
Crown argues that the logs which were searched were only for a particular security device and the lack of any entries on that device don't necessarily mean one accessed -- no one accessed the website on that day. The Crown says certain users such as Ms. Meiklejohn may not have been required to go through that particular device. The device I'm referring to here would be the Chancellor 2, which is what appears in those logs that we have.
Judge:
At Exhibit 12.
Fox:
However, as Mr. Lam testified, the software called Splunk which was used to generate the report he provided and that record being what was -- what's Exhibit 12. The report he provided consolidates the information from the entire network so that when they search for something they don't need to go to each computer or device and do a separate search on each device. Therefore the search results Mr. Lam provided were not just for that security device, Chancellor 2, but for the entire network. In other words, the search he performed didn't only prove that there were no references to desicapuano.com on Chancellor 2. It proved there were no references on any computer or device on the entire network.
It would seem to me that if someone had accessed desicapuano.com on that day from the internet or from VPD's network and desicapuano.com was on the internet there would be some record of it in the logs of some device on the network.
There are multiple references to desicapuano.com.siteindices.com in the logs that -- or in the search that was returned by Mr. Lam. It just seems very, very unlikely to me that there would be absolutely no trace of anyone going to desi -- desicapuano.com on that day, especially since one of those accesses was supposedly blocked by the VPD's network security configuration.
Crown also argues that it is possible that the log entries referencing desicapuano.com had already been rolled over and that's why there weren't any in the logs. However, the fact that there were entries on Chancellor 2 referencing desicapuano.siteindices.com from May 16th, 2022, means that there should also have been entries referencing desicapuano.com from when Detective McElroy claimed she tried to access the website during the interview. The presence of the siteindices.com entries proves that the logs on Chancellor 2 had not rolled over.
Mr. Lam had testified that something like access logs, as opposed to error logs or security logs, which might grow very large would probably roll over every month and a half or two months. However, Detective McElroy's supposedly blocked attempt to access the website during the interview would've been logged as an error or security exception, not as a regular access. It would've been logged as a VPD employee using VPD resources to attempt to access a website she was not supposedly authorized to -- she was supposedly not authorized to access. Therefore it would not have been rolled over, or I submit it would not have been rolled over.
I believe it would -- it would've still been present in the logs of Chancellor 2 or some other network device.
Judge:
So --
Fox:
It is simply unfathomable that not one of the attempts by Ms. Meiklejohn or Detective McElroy to access desicapuano.com on May 16th was logged by any of the devices on their network.
Just as with the IP addresses, this type of information, meaning the network logs, establishing whether or not VPD personnel did actually attempt to access particular resources on the internet which was evidenced in a criminal investigation and which subsequently became evidence in a criminal prosecution is information which may be critical to either the Crown's or he defence's case depending on what those logs would've shown and therefore should've been treated like any other evidence in a criminal proceeding. And while I realize this is technical information which a layperson such as a police detective could not be expected to be aware of, the personnel within the VPD who deal with technical aspects of internet-related crimes certainly must be expected to know these kinds of things.
I first requested the disclosure of the firewall logs, and I put quotation marks around "firewall logs." And the reason I originally referred to them as firewall logs was that was the term that Detective McElroy had used during the interview and subsequent to that even though they aren't technically firewall logs.
So I first requested disclosure of the firewall logs -- firewall log records in a letter to Mr. Poll, the prosecutor who previously had conduct of this matter, on July 27th, 2022. Once that disclosure request was made, VPD should have been informed by Crown to not destroy or allow the destruction of hose types of records, yet it was not until October 12th, 2022, that Crown informed the VPD of my disclosure request.
I submit that any network logs or any network log records which may have been destroyed or rolled over between July 27th, 2022, and October 12th, 2022, are completely due to the Crown's failure to inform the VPD of the disclosure request and I should not be penalized because of the Crown's refusal to perform their duties in that respect.
So I would submit the Crown's argument that the access logs from the day in question may have already been rolled over should not be an acceptable explanation for the lack of any network logs showing that anybody attempted to access the website on that day because as I pointed out, it wasn't until three months after I submitted the disclosure request to the police that the -- to the crown that the Crown actually informed the police about it and in that three months plus the two months between when I was arrested and when I requested that there was five months that elapsed there. And so if the logs were destroyed because so much time had passed, it's my position that it's the Crown's fault or the Crown's failure to act on my disclosure request that caused that delay.
There is case law that deals with the issue of the Crown and/or the police failing to retain important evidence. And I recall from the research that I'd done in the original -- the index offence, the criminal harassment matter, but unfortunately I don't have access to searchable case law at the North Fraser Pretrial Centre at this time, so I'm unable to cite the specific cases that deal with -- with that. Nevertheless, if I recall correctly, the precedent was that if the Crown or the police fail to adequately retain evidence which was important to the defence, then any possible findings with regard to that evidence should be in favour of the defence.
So, for example, if -- or in this case it must be presumed that network log entries which could have shown that nobody attempted to access the website on that day but which were lost due to the VPD failing to ensure they were adequately retained should be presumed to have shown that nobody accessed the website on that day.
Crown further claims they spoke with someone from VPD who informed them that Hunchly users such as Ms. Meiklejohn did not go through any devices which would've been included in the Splunk report in order to access the internet. They claim that that is why the report did not contain any log entries or -- yeah, log entries relating to Ms. Meiklejohn accessing the website on May 16th. But Crown --
Judge:
Do not -- sorry. Do not go through any devices? You mean firewall?
Fox:
Well --
Judge:
Crown says the Hunchly users do not go through any devices.
Fox:
They do not go through any devices which would have been included in the Splunk report, the Splunk report meaning the proxy log or what we've been referring to as the proxy log. Because I did -- I did question Mr. Lam about it briefly when he came to testify the first time before we adjourned. I asked him about whether their access to the internet would have gone through a device that would have been included in the Splunk report because this report only includes the devices that are included in however it's configured. And so if there are additional devices outside of the Splunk configuration they wouldn't be included in here. And at that time he had said that they would -- that the Hunchly users would be going through a different device or a different server, being the Hida server, that at that time he was saying that that wouldn't be included in the Splunk report.
But what I'm talking about right now is about after Mr. Lam came back a second time on March 28th and then after he was finished and he was excused, the Crown had referred to some discussions they'd had with some folks from the cybercrime department, I believe it was, that had had provided them some information. And so that's what I'm referring to here is that information.
And then I say, but the Crown was not prepared to identify who it was that they spoke to and neither they, nor the VPD, was willing to allow that person to come and testify on those matters.
Judge:
Right. So that wasn't evidence before me, what Crown says to me that a discussion they had. I have -- I have Mr. Lam. That was the evidence I had.
Fox:
Right. Okay. Yes. I just wanted to make sure that what they had said about the discussion they had with VPD afterwards, that that was not --
Judge:
Right it's the same for them as it is for you. Mm-hmm.
Laker:
And I -- I believe that it -- this was also subject of an application for further disclosure by Mr. Fox --
Fox:
Yes.
Laker:
which was denied.
Judge:
Right. So -- and Crown was -- was answering that and trying to give me -- applications for disclosure do you sometimes rely on the representations of counsel just for expedience and moving through the process. But just so it's clear that didn't come before me as -- as evidence that I'm going to consider.
Fox:
Right. Okay. And when Sergeant Shook testified, he testified that although he's not an expert on the matter, it is an understanding that all users on the VPD network go through a proxy server or some such security device to access the internet. And that -- and that is a reasonable presumption because the purpose of the proxy server or security device in that respect is not necessarily to block access by the users but to prevent viruses and other malicious software from getting into the VPD's network. So for that reason even the Hunchly users and the so-called covert users would still need to go or would still need to be protected from such potential threat -- potential threats, meaning that they would still have to go through some kind of proxy device.
And now I have some submissions regarding Mr. Lam's testimony. Sorry. Before I talk about that let me get some more water.
When -- when Mr. Lam first testified on March 7, 2023, he answered Crown's questions regarding various technical matters regarding the information in the Splunk report he had generated regarding the typology of the VPD's computer network and -- and regarding the security policies and practices in place in VPD's computer network. And I should clarify, sorry. The word "typology" is commonly used in network or computer network technologies. I'm not sure if that's a word that would be known outside of computers, or -- it just has to do with the configuration and the high level layout of the -- or conceptual layout of the network.
Judge:
Sure.
Fox:
Initially Mr. Lam testified that the Hunchly users do go through a security device such as Chancellor 2 to access the internet. In my submission realizing that statement made under oath and presumably from Mr. Lam's intricate knowledge of VPD's computer network, being that he's an IT manager in the VPD, Crown immediately requested a recess. Court stood down. Crown and Mr. Lam exited the courtroom. When we reconvened, Mr. Lam testified that he was incorrect earlier. That he had called the -- he had called the office and was informed that the Hunchly users don't actually go through Chancellor 2.
However, I believe it is critical to note here that Mr. Lam's second or revised testimony was not based on his own first hand knowledge but rather hearsay in that it was information told to him by an unidentified party who was not available to testify. So I'm referring to after we stood down and then Mr. Lam had testified that he was mistaken in his first testimony about the Hunchly users going through Chancellor 2, his statements after that were based on information provided to him over the telephone by another party who wasn't identified and who wasn't available to testify. So I would argue that that information should be considered hearsay.
We then adjourned so I could investigate Mr. Lam's claims regarding the network configuration because they were inconsistent with my own firsthand knowledge of VPD's computer -- computer network configuration and typology.
When we reconvened on March 28th, Mr. Lam then claimed he had no knowledge of whether the Hunchly users go through Chancellor 2 or any other network device and no knowledge of what network services the server or host Hida provides and no knowledge of the Hunchly software or how it works. That all seemed completely implausible to me given that knowing these kinds of things is exactly what Mr. Lam's job as the IT manager would require.
Given Mr. Lam's claims on March 28th, 2023, that he had no knowledge of those matters and given that his revised testimony on March 7th was actually just hearsay, it seems to me that very little, if any, of Mr. Lam's testimony can really be considered credible or admissible in this matter.
Judge:
Well, it's admissible. It's a question of the weight to be given to it.
Fox:
It is -- it is my submission -- no. I'll -- I'll skip that.
Now, at this point the submissions that I go into differ somewhat in that all of my submissions up to this point have to do with whether the Crown met its burden of proving that the website was even publicly accessible on the internet on that day. Because if the Crown does not sufficiently prove that or if the evidence doesn't prove that, then the rest of these submissions aren't really relevant, they don't matter because they're only relevant if the court decides that that has -- that that burden has been met.
And there are -- there are quite a number of issues and unfortunately I didn't get to finish the rest of it. Like, I have a few of them here. It goes on a bit.
Judge:
Okay. So I -- I consider the evidence in its totality. We can take -- and I'll hear submissions altogether as well. We'll take the afternoon break now. I am expecting you to finish, though, this afternoon, Mr. Fox, just given that this is day 7 and --
Fox:
Mm-hmm.
Judge:
-- the Crown took about an hour to give me their submissions. So we'll come back at 3:20. We'll have just over an hour of court time left, then. An hour and 10 minutes. I hope that we'll -- we'll finish then.
Fox:
Sure. Thank you.
Judge:
Thank you.
(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)
(PROCEEDINGS RECONVENED)
Judge:
When you're ready.
SUBMISSIONS BY ACCUSED, CONTINUING:
Fox:
These following submissions I should be able to get through much more quickly because I don't think that there's going to be any more issues of potential evidence.
If we accept the Crown's argument that there was sufficient evidence that the website was online on May 16th, 2022 -- obviously I don't accept that, but for the sake of argument the Crown acknowledges and their witnesses testify that the website was offline from the time of my release until the time -- until around the time of Ms. Meiklejohn checking it on May 16th, 2022. I don't think there's any objection there of saying from the time of my release, right?
Judge:
No. I heard evidence --
Fox:
Okay.
Judge:
I'm jumping in, but I think that was the evidence before me, when you were released and then questions were asked of witnesses.
Fox:
And --
Judge:
Sorry. Ms. Laker, Mr. Elias, did you want to add something, or --
Laker:
Go ahead.
Elias:
Go ahead.
Laker:
Okay. Yes, Your Honour. The only thing that I would reference is that I believe there was some evidence from Ms. Meiklejohn that she did search the website earlier in May.
Judge:
May 3rd.
Laker:
And had noted that it was password protected.
Judge:
That's correct.
Laker:
Yes.
Fox:
Yes. There was -- there was some debate about whether password protected met the requirements of it being no longer available, et cetera. But I believe both the VPD and the Crown did decide that they were satisfied that it being password protected met the requirement of it being no longer available.
And so when I say offline, I mean it was no longer available on the internet or by any other means. That being the case, it means that someone would've had to do something to cause it to become available again. Crown's position with respect to Count 2 means to be that it's not their burden to prove that I caused it to become available again. The mere fact that it was available again constitutes a breach of Condition 4. That's my understanding of the Crown's position on the matter.
The first issue I have with that is if I don't even know the website was -- has been made available again, then how can I be expected to instantaneously take all necessary steps to ensure it is no longer available. I would submit that that is unreasonable, if not -- that is an unreasonable, if not impossible, expectation.
The police claim they confirmed the website was online around 9:30 a.m. on May 16th, 2022, and they came and arrested me for it at around 12 p.m. that same day. No one provided me any notice that the website was online. The police did not contact me first and say hey, the website is online, as of this point you are aware it is online, so you now have 24 or 48 hours, or whatever duration of time, to take all necessary steps to ensure it is no longer online.
The second problem with this --
Judge:
So just -- I just pause you there.
Fox:
Sure.
Judge:
I can see the Crown speaking to -- and what -- again, you haven't testified to say that you didn't know it had been made available. You're just giving me a hypothetical, if I didn't know.
Fox:
Right. Right. I understand that. Because my -- my point that I'm trying to make there is they seem to be of the position that if the website goes online regardless of whether or not I had anything to do with it, the precise moment it becomes available, I'm required to take all necessary steps to ensure it's no longer available regardless of whether or not I even know it's online.
And in a moment here we'll get to the argument about -- my submissions about whether or not there was any evidence that I had any involvement in it or could've had any knowledge that it was online, if it in fact was online.
So the second problem that I have with the Crown's position is that in my opinion or in my submission there was absolutely no evidence provided at the trial that I even have any involvement with the website or that I've had any involvement with it since the first probation order came into effect in December 2018.
Judge:
Your Honour, that -- that's more of a legal issue. There's a presumption that a probation order is based on -- on proven facts and you don't have to go back in and prove all the underlying facts on a breach of probation. You presume a lawful order.
Fox:
Yes.
Judge:
So I just want to make sure -- I'm just answering you right away.
Fox:
Okay.
Judge:
That isn't part of the Crown's burden necessarily on this -- or it isn't --
Fox:
Right.
Judge:
-- on this prosecution to prove the underlying facts from which the probation order flowed.
Fox:
But I believe the -- the underlying facts were that I had involvement in creating the website initially. There can't be an underlying fact that from this point and forever into the future I am the person putting the website online.
And this has been the problem with all of these prosecutions so far is that the police have openly admitted there's no evidence that I have had any involvement in putting the website online or keeping it online and they've openly admitted they have no knowledge of if I'm the one doing it or if I have any involvement or influence over the website whatsoever. Regardless, I'm still -- I've still been found guilty each time.
Judge:
But you didn't testify this time --
Fox:
Right.
Judge:
-- to give any -- the Crown's case is circumstantial. They're saying all of the evidence points to there only being one reasonable inference from all of the evidence. And you didn't take the stand and say, this is what I say about that.
Fox:
Right.
Judge:
So...
Fox:
And I -- I will just say in response to that, the reason I didn't is because I did at the previous trial and that did not work out so well.
Judge:
It's always your decision whether you want to or not, but -- but what it does do is it does have consequences for what you're able to argue and as you've seen as we've gone through these submissions, I've had to stop you and --
Fox:
Right.
Judge:
-- you've had to stand down and talk to Crown and -- so it does limit what you can say if -- if you haven't put it before the court in your evidence.
Fox:
Okay.
Detective Shook testified that he found references to two possible email addresses associated with the domain desicapuano.com in an account database on my phone. And here I'd be referring to Exhibit 14. Oh, not to say that we need to go to Exhibit 14. I'm just --
Judge:
No.
Fox:
-- mentioning that there's information in there about it. But he acknowledges that -- he acknowledges they seem to be -- they seemed to have been created by a program called BlueMail and he had no particular knowledge of that application. He cannot say whether the information pertained to any actual real email accounts or whether such accounts were still active or still existed. He had no knowledge of -- for how long -- no. This -- sorry. No. Sorry. This next point didn't come up. He had no knowledge of whether the information had been put into the phone before it had been seized by the VPD from me in 2019 and was just old lingering data as opposed to something that had been put into the phone subsequent to my most recent release.
I realize I put a little bit more detail in there than what came up at the trial, but the important point I'm making is that he had no knowledge of whether the information that he found in the phone had been put in the phone during the four weeks that I was out or if it had been put in there years before and it just hadn't been deleted.
He had no knowledge of whether it was information explicitly entered by me or automatically by the BlueMail application and he had no knowledge of whether the information had been added to the phone after it had been seized from me on May 16th, 2022. He could not say whether those were actual email addresses in the desicapuano.com domain or just usernames for some other unrelated type of account. And he said that the -- he said that the little string used for the username field was not necessarily an actual user account name or email address. It was just some string that that associated service, in this case BlueMail, used to identify the given account information.
Since the values appearing in the username field of the table provided by Sergeant Shook, which are on page 5 of Exhibit 5 here, were merely a string literal used by the associated service to identify the account information, then the two accounts in question, that is Panda bunch of dots@desicapuano.com and E followed by a bunch of dots@desicapuano.com, could actually refer to almost anything. For example, E....@desicapuano.com may be an IP or an IMAP folder I created in BlueMail to store any email messages between myself and editor@desicapuano.com. Or it may be a separate Gmail account I created solely for the purpose of trying to communicate with editor@desicapuano.com so that, if necessary, I could provide the police or the Crown access to that account so they could confirm I have been making attempts to try to get the website shut down without giving them access to my entire real email account.
Judge:
Okay. But, again, that's -- you're not giving evidence about that.
Fox:
Oh, no.
Judge:
That's --
Fox:
I'm saying hypothetically those things that -- E...@desicapuano.com that he found in there, since that's just a name assigned or a username assigned to the account, it's not an actual email address or something, what I'm saying is it could actually refer to any account information, including, for example, it could be referring to a separate email account that I've created for the purpose of communicating with editor@desicapuano.com so that if a situation arose like what happened in the previous trial where I said I had emails that I had sent there to prove that I'm trying to get the website taken down, they wanted the password for my email account or for my phone and laptop so they could go in and check. And I said well, I'm not going to give you the password for the entire account.
So by creating this separate email account and using that and then linking it with that username, E@desicapuano.com, that way I could give them access to that account without having to give them access to all of my emails.
Judge:
I think what I have is what Sergeant Shook put in the document and then your submission that P... could be anything.
Fox:
Yes. It wasn't necessarily -- I had asked him about if it had referred to an actual email address and he wasn't sure about that. And I pointed out that the dots that were used in those account names aren't actually periods, they're like -- they're bullet dots which would be an invalid character in an email address. And so based on that they can't actually be real email addresses. But my point now is that that information isn't necessarily -- it doesn't necessarily mean or refer to the account editor@desicapuano.com. It could actually refer to anything because it's just a string that represents some account information.
And the point is Sergeant Shook simply did not know what those two apparent accounts really were; he only knew that the username string, which ultimately is an arbitrary string and it means nothing at all, or doesn't necessarily mean anything at all, contained the substring desicapuano.com.
And that's as far as I got with respect to my submissions for Counts 2 and 3. I have notes prepared -- they're rough notes, though -- for the submissions that I was going to make with respect to Count 1.
Judge:
Okay.
Fox:
So I could proceed with those. And my apologies, these are rough notes. I'm not just reading verbatim.
Judge:
No, that's fine. And I'm glad you're going there. I was going to ask you about Count 1, but you've already prepared to speak to that.
Fox:
Yes.
Judge:
So with respect to Count 1, first I would say that I did -- I did report on April 19th -- I was released from custody on April 17th and I was required to report within 72 hours. So I reported on April 17th which was within the 72 hours, and the wording in the probation condition required me to report to a probation officer. And this came up during my cross-examination of Ms. Seath and Mr. Trimis, that the probation condition did not require me to report directly or specifically to the probation officer assigned to me but just a probation.
So on April 17th I did report to Ms. Seath.
Judge:
April 19th.
Fox:
Or on the 19th. Yes. I'm sorry. I did report to her and I informed her of the steps that I had taken to cause the website to be no longer available.
Judge:
So here.
Fox:
Yeah.
Judge:
You didn't testify about that.
Fox:
Ah, but I -- I was about to mention that that is actually proven by the C-log entries that Mr. Trimis had made.
Judge:
Okay. So the C-log entries -- I was going to ask you about Exhibit 4.
Fox:
Yes.
Judge:
They're double hearsay. I mean, it's Mr. Trimis writing down what Ms. Seath told him you said, right?
Fox:
Yes. But wouldn't the fact that he made a C-log entry in the computer on -- I believe it was on the 20th he made that entry stating that Ms. Seath had told him that I had said that I'd taken no steps, et cetera. Wouldn't that be evidence that I must have told her that? I mean, otherwise how would he know to write that in there?
Judge:
I think perhaps you're suggesting that that evidence should be reliable because of how it came about. Is that --
Fox:
I'm suggesting that it should be considered reliable because the time that it was put in there, it was on April 20th. I had never spoken to Mr. Trimis by that point. In fact I had never spoken to Mr. Trimis until I cross-examined him here in court.
And so with C-log entries, and I realize there's no evidence to support this, but a C-log entry, once it's entered, the information on it can't be changed. And so once he enters -- enters it in there it's impossible for him to change the date or the time stamp or anything in it. But in addition to his C-log entry there was also a note in Detective McElroy's notes, a handwritten note that she had made, where she states that -- I believe it was Mr. Trimis had told her that I had said that to Ms. Seath, which that would also be double hearsay, I guess, if we're saying that this is double hearsay.
Judge:
Well, they're also documents kept in the usual and ordinary course of business. And I think your argument has to be about -- about that. Why were these records kept? Look at when it was written down. I don't know if the Crown has given any thought to this issue, specifically that I didn't hear it directly from Mr. Fox; however, there -- there is evidence before the court.
Laker:
I'm just trying to recall if with Ms. Seath --
Judge:
She didn't remember is what I recall.
Laker:
Exactly. That was my concern that I was just going to express Your Honour is that she didn't have a specific recall about it and what was spoken about. So obviously the evidence is before Your Honour, so really is it more of, as you said, determining what weight to ascribe to that particular evidence. And I can address that in the Crown's reply, if necessary.
Judge:
Does Crown take the position that it's hearsay, or does Crown take the position --
Laker:
Yes.
Judge:
-- that it's a business record and...
Laker:
Well, that's interesting.
Judge:
You can -- you can --
Laker:
Let me think about that.
Judge:
Sure.
Laker:
Thank you.
Judge:
Okay. Mr. Fox, I just wanted to see what position the Crown took with respect to that because it might have -- might have simplified what you have to say or not.
Fox:
Right.
Judge:
Okay.
Fox:
Sorry. I was trying to find the particular entry where Mr. Trimis had stated that, but I guess it's not really critical to --
Judge:
No. I --
Fox:
-- [indiscernible].
Judge:
I took myself to it. It's April 22nd correspondence with Crown Chris Johnson. Is that it? [As read in]:
Hi Chris. I spoke to the duty officer Julia Seath and she tells me Fox simply told her he didn't have to take any steps as the site had already been shut down.
Fox:
Yes, yes. Okay. I see. Yes. There it is. Okay. So the wording of the probation condition required me to report to a probation officer. Okay. I already covered that. And it is my submission that the probation condition did not require me to report specifically to Mr. Trimis. It only required me to report to a probation officer, which I believe I did when I reported to Ms. Seath. And the condition, it is my submission, required me to inform whatever probation officer I reported to the exact steps that I had taken to cause the website to be no longer available.
Now, taken literally that would mean if I had taken no steps, then by informing them that I had taken no steps, I believe that that meant I complied with that condition. And in face since the website was already offline at the time it would be impossible for me to take any steps to cause it to be no longer available because it was already no longer available. That was the point I was trying to make to Ms. Seath at the time.
So based on that, it is my belief and it was my sincere belief at the time that I recorded that I had complied with the condition.
Now, I would also like to point out that when Mr. Trimis testified, I pointed out to him that he had made absolutely no mention in his RTC -- RTCC in support of a warrant for my arrest that I had actually informed Ms. Seath of the exact steps that I had taken to ensure the website was no longer available even though he knew at that time that I had taken -- or that I had informed her of that.
And it -- it is -- it's very troubling to me that the probation officer would leave that information out of his RTCC knowing that the purpose of the RTCC is to result in a warrant for my arrest. And if he had informed the court that I had informed a probation officer of the steps that I had taken, the court may very well have said well, I've complied with the condition, and refused to issue the warrant for my arrest.
Judge:
Did I have evidence about the date of that RTCC? Was that prior to May 16th? Did I --
Fox:
Oh, that was definitely prior to May 16th because the warrant was issued on April 28th, I believe it was.
Laker:
And I believe that Sergeant McElroy did indicate in her evidence that there was a warrant outstanding for him prior to May 16th with regards --
Judge:
Okay.
Laker:
-- to the failure to report.
Judge:
Thank you for reminding me. I just -- is it in that --
Laker:
It's in the C-log --
Judge:
Exhibit 4?
Laker:
-- actually.
Fox:
Yes.
Laker:
It says [as read in]:
May 4th, 2022, Detective McElroy aware of the warrant and will be looking to locate Patrick to arrest him.
And I was just looking at the C-log again. Your Honour, I -- I -- it is a business record. So I think that -- I submit that Your Honour can certainly consider it.
Fox:
I think it's actually mentioned even earlier here. This says "breach submitted." I assume the RTCC would go with that.
Laker:
Yes. Breach submitted, failure to report as directed on April the 21st. Yes. And then -- and then it says "arrest warrant" --
Fox:
Then the warrant was, right, issued on April 29th.
Laker:
Oh, April 29th. Yes. And then McElroy aware of warrant and will be looking to locate Patrick to arrest him May the 4th.
Fox:
Right.
Laker:
Yes. Thank you, Mr. Fox.
Fox:
So I'm very troubled by that, by Mr. Trimis's failure to mention that in the RTCC, because that makes it seem to me that really he just wanted to get me arrested. He had information that he should've known would've been critical to the RTCC, but he just left that out. And when I asked him about it, he didn't really have much of an explanation other than to say he didn't believe it was relevant.
Mr. Trimis also testified that the reason he believed that I should've been required to go back and report a second time is because if I had gone back and reported to him, he would've asked me additional information about, for example, who had taken the website down. And I would submit that that -- that should not be an acceptable excuse because I wasn't actually required to provide him that additional information. And even if I did go back and report that second time and if he had asked me those kinds of questions, I wouldn't have told him. I would have simply told him that I'm only required to tell you the steps I had taken; these are the steps; I'm not required to tell you anything beyond that.
There was also -- when Mr. Trimis testified there was an issue about -- he had testified, I believe, on direct that I was required to report as directed. But then on cross I asked him if he could show me where in the condition -- in the probation condition on the probation order it states "as directed." Because I do -- I realize any of my previous probation orders sometimes it would state that I was required to report as directed by the probation officer. But in this particular instance Judge Denhoff -- Denhoff didn't include an "as directed" clause.
So when Mr. Trimis testified about that, he seemed a little bit surprised when he realized that it didn't actually state "as directed." And since it didn't state "as directed," it was my understanding I was only required to report as it was explicitly stated in the probation order, not at the discretion of the probation officer. So the fact that it said in the probation order that I was required to report as it was explicitly stated in the probation order, not at the discretion of the probation officer. So the fact that it said in the probation order that I was required to report for the purpose of informing them of the steps I had taken and that once I had informed them of that I wasn't required to report anymore beyond that.
It seems abundantly clear to me that Judge Denhoff's intention there -- and of course it's actually discussed even further in the transcripts, but those are transcripts, not her reasons for judgment. She clearly stated at the time of sentencing in the transcript that I would only be required to report that one time, assuming that one time that I told them what steps I had taken.
So based on all of that it is my submission that it is clear that I did comply with Condition 1. I reported within the 72 hours as I was required to. I reported to a probation officer with the expectation that she would make a C-log entry about what I told her. And by making that C-log entry that would be indirectly informing Mr. Trimis of the steps I had taken. The fact that she didn't put that information into the C-logs, I mean, that -- that was her decision, that wasn't mine. I still told her the information I was required to tell her.
And then not going to back to report the second time. I mean, my submission on that is I simply wasn't required to go back a second time. I told them I wasn't going to. I told them I am here doing what I am ordered to do. I am not going to come back a second time because I'm not required to.
And so it seems to me that that would be the end of the submissions that I would have -- sorry. Let me just take one quick --
Judge:
No. That's fine.
Fox:
-- look here. 'Cause I know I don't get a second shot to come back.
Judge:
No. That's true.
Fox:
There were a number of issues that the Crown made in their submissions that I did want to respond to, but since I don't have those submissions prepared, I will forego that.
Judge:
You can take a minute and think about it. I -- if you want to. If you want -- it's, you know, 10 to 4:00.
Fox:
No, no. I -- I do just want to bring up this one point again because it seems extremely important to me. This issue that if I have a condition that requires me to take all necessary steps to cause the website to be no longer available. If a third part, for example Desiree Capuano, puts the website back online for the express purpose of -- and this is just a submission, this is not evidence. If she does this for the purpose of ensuring that I will be arrested and denied bail and spend another year in jail, she puts the website online, calls the police or calls the Crown and says hey, the website's online again. Within 24 hours they come and arrest me, I get denied bail; here I am a year later. As far as I can see, the website wasn't even online. This is this infinite loop that I'm going to be stuck in now. And -- and the police refuse to contact the hosting provider to determine whose credit card is being used to pay for any of this or who's associated with this.
So this argument that if the website appears online it must be Mr. Fox who's putting it online and the -- they shouldn't have to determine who's actually doing it seems a little outrageous to me because, as I say, Ms. Capuano can just go ahead, put the website online, like, anytime I get released from custody, victim services notifies her that I've been released. All of a sudden the website appears online again and then a day or two later I'm arrested and back in jail for another year.
Okay. Those are my submissions.
Judge:
Okay.
Fox:
Thank you.
Judge:
Thank you, Mr. Fox. I know Crown said they might have a reply. Does Crown have a reply and do you want a few minutes to --
Laker:
No, I don't think so.
Judge:
-- gather your thoughts or -- okay.
REPLY FOR CROWN BY CNSL T. LAKER:
Laker:
I think that there was just two points to deal with. And the first one is just addressing the admission. And of course -- could I grab the -- we entered it as an exhibit. I just want to make sure I have that. Oh. I even still have it open on my computer actually. With regards to the first admission that it is possible that a website can appear to be accessed even when it is not online. So it appears that Mr. Fox, the bulk of his argument is that the Crown has not proven -- well, not only that the Crown has not proven that the website was actually online on May 16th, but he's -- he seems to be indicating that there was a dummy website that had been created by the police which is what was actually accessed on May the 16th.
The Crown very briefly addressed this sort of proposition at page 17 of -- paragraph 53 of our closing submissions where we said that -- well, first of all, Mr. Fox did not call evidence in his defence. What I can say is that there appears to be a suggestion that the Crown has not proven that Ms. Meiklejohn properly searched for desicapuano.com. And ultimately the Crown says that there's no factual basis to that suggestion and that Mr. Fox inviting Your Honour to make that finding is -- is purely speculative.
So that's the -- that's the first just point that I wanted to address in light of the admissions of fact that -- that have been put before Your Honour.
And then very briefly with regards to Mr. Fox's proposition that he did comply with -- with the reporting portion of his probation order. First of all, he did mention that Ms. Seath had not made any record of that conversation that she had with him, and that's -- that's actually incorrect. In the client log there is a note. It's the -- it's actually the first note, you could say, but it's the last note on the log where she does indicate on -- on April 19th about her interactions with Mr. Fox on that date.
Furthermore, he was directed to report. We've heard evidence from the probation officers that he was directed to report on April 21st and we have not heard from Mr. Fox other than the fact that his belief that he had already complied with his condition, but we have not heard from Mr. Fox as to exactly -- about his -- his decision to not report on the 21st of April. So, in my submission, there's an absence of evidence with regards to that aspect. And -- and what we have is a probation officer who has already explained that they were of the view that there was a further requirement for him to report based on the condition that he was bound by and that he failed to report on the 21st of April.
I think that those are all the points that I wanted to address with Your Honour. I'll just make sure as to whether or not my friend -- or my colleague had anything else.
Elias:
No.
Laker:
Okay. That's everything. Thank you.
Judge:
Fine. Okay. Thank you. Oh, something further, Mr. Fox?
Fox:
Could I just respond to two points?
Judge:
Yes.
Fox:
I' 11 be very quick.
Judge:
Yes. No, it's unusual, but yes.
Fox:
The first is with respect to what I had said about the C-log entry that Ms. Seath made. I didn't say that she didn't make any entry of our discussion at all. I was saying that she only didn't mention that I had told her about the steps that I had taken. And with respect to the probation officers directing me to report again on the 21st, I don't dispute that. They did direct me to report on the 21st. What I'm saying, though, is that they didn't have the legal authority to compel me to report on the 21st because it didn't state in the condition that I had to report as directed. I was only required to report as Judge Denhoff had -- had stated.
Judge:
Yes. No, I -- I understood that was your point before.
Fox:
Thank you.
Judge:
But thank you for clarifying about what you meant about Ms. Seath.
Laker:
Thank you.
Judge:
Okay. All right. I will reserve my decision in this matter. There were the seven days we've had and I'll review the evidence and the -- the submissions that I've had from both Mr. Fox and the Crown. If you would look for a day beginning May 8th, so just -- just over two weeks from today's date for, say, an hour for my decision.
Laker:
Yes.
Judge:
And you can choose when you wish to go to the JCM fix date court to find that date. Is that something that you want to propose, Ms. Laker, now when you could go?
Laker:
Yes. What we could do is do it -- well, I'll ask Madam Clerk because what I have been doing of late is actually appearing in -- in front of the JCMs to fix a date and then just confirming the date in 102 on the same date. And so what we could do is even be adjourned to -- oh, I can't do tomorrow unfortunately. Unless Mr. Elias is free tomorrow.
Elias:
No. I'm in another court tomorrow.
Laker:
Okay. Perhaps we can be adjourned over to Friday for both the TMP appearance and the 102 appearance to confirm with Mr. Fox. And I'll get Mr. Fox's available dates before we leave today.
Fox:
I'll be in the VCCA in person on the 21st, on Friday.
Laker:
Okay. Okay. So --
Fox:
But I believe I can appear --
Judge:
So --
Fox:
-- by video from there. I did that before.
Laker:
Well, I mean, because -- well, what I could do is I could actually just -- because what I've done in the past with -- with Mr. Fox's matters is just emailed the judicial case managers.
Judge:
Yes.
Laker:
Just because of Mr. Fox's custodial status and the --
Judge:
Yes.
Laker:
-- fact that he's self-represented and they've been very -- that's worked really well.
Judge:
Okay.
Laker:
So -- so perhaps -- so what I'll do is I'll email them today to --
Judge:
Okay.
Laker:
-- try and get the soonest date.
Judge:
Yes.
Laker:
So there's no delay. And perhaps have Mr. Fox return tomorrow at 2 o'clock in 102.
Fox:
It'll be by video, though, right?
Judge:
By video, yes.
Laker:
By video.
Judge:
I'll make that appearance by video, Mr. Fox.
Laker:
Okay. Excellent.
Elias:
Is that okay with your court of appeal appearance the next day? Do you -- do you have the time to sort of step away and appear in 102?
Fox:
Oh, yeah. I'm all --
Laker:
Or we can do it for Monday.
Fox:
-- prepared for Friday. I'm prepared for my --
Laker:
Okay.
Fox:
-- Friday appearance.
Judge:
Okay. So Crown, then, is going to contact the JCM about the date for my decision. And I will adjourn the matter and Mr. Fox to tomorrow afternoon.
Laker:
Yes, please.
Judge:
April 20th at 2 p.m. in Courtroom 102, Mr. Fox to appear by video to confirm that date that will be found sometime between now and by the end of tomorrow morning.
Laker:
Yes.
Judge:
All right.
Laker:
Thank you.
Judge:
Thank you.
Clerk:
Order in court.
(PROCEEDINGS ADJOURNED TO APRIL 20, 2023, AT 2:00 P.M.)
Transcriber: A. Pinsent