Transcript of Trial & Sentencing Proceedings (2023-05-15)
PDFCourt of Appeal CA49120
244069-10-BC
Vancouver Registry
In the Provincial Court of British Columbia
(BEFORE THE HONOURABLE JUDGE OULTON)
Vancouver, B.C.
May 15, 2023
REX
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT TRIAL & SENTENCING
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.
May 15, 2023
REX
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT TRIAL & SENTENCING
BAN ON PUBLICATION 486.5(1) CCC
Crown Counsel: Tara Laker
Ryan Elias
Ryan Elias
Appearing on his own behalf: Patrick Fox
INDEX
EXHIBITS
- EXHIBIT 16: Brown envelope Patrick Fox May 25, 2023
- EXHIBIT 17: Crown letter dated May 8, 2023
- EXHIBIT 1 (on Sentence): JUSTIN conviction
RULINGS
Vancouver, B.C.
May 15, 2023
(VIDEOCONFERENCE COMMENCES)
(ACCUSED FROM REMOTE LOCATION)
Judge:
Please be seated.
Laker:
Yes, Your Honour. Laker, initial T., for the Crown. And I'm here with my colleague, Mr. Elias. Mr. Fox is appearing by video. I just wanted to advise Your Honour, very briefly, that I just explained to Mr. Fox that the Crown had provided a written response to the Kienapple issue and that it was just a very brief response, essentially. Just setting out the -- the test or considerations for Your Honour when deciding whether or not Kienapple does apply, and that the Crown takes the opposing view that Mr. Fox does with regards to the Kienapple issue.
Mr. Fox, can you hear us or was I quiet?
Fox:
I can hear you. I can hear you, but just so you know, I can't see the judge due to the way the camera is positioned.
Judge:
All right, Mr. Fox --
Fox:
The bench is off to the side over there.
Judge:
-- it's Judge Oulton speaking. We'll try and fix that.
Fox:
Oh, no, the other way, please. Okay, right here. That's good, thanks.
Laker:
Okay, thank you. So unless there is anything else to address, Your Honour, I just wanted to make note of that.
Judge:
Well, yes. I mean, on that point, I've got --
Laker:
Excuse me.
Judge:
-- you're written reply. It's just a page, on May 9th. And so that wasn't provided to Mr. Fox other than --
Laker:
No.
Judge:
-- this morning when you were telling him that you take the contrary position and why.
Laker:
Yes. And I can certainly read out the written -- what I -- what I provided, but that's because of Mr. Fox's custodial status and the timing, unfortunately, there was no ability for us to be able to provide that to him, so.
Judge:
All right. Well, what I was going to do was make sure that Mr. Fox's letter which I received on May 4th, and the Crown's reply which I received on May 9th, both became exhibits on the trial as they -- they're additional submissions that I heard and considered in writing from both Mr. Fox and Crown with respect to whether Kienapple applied to Counts 2 and 3 of the information. That's how I was going to address this.
Laker:
That's certainly agreeable to the Crown. I don't know if Mr. Fox has any further.
Fox:
Yes, I -- I agree with that. Yes.
Judge:
Okay. So Madam Clerk, I have the -- the Crown's letter and the package that I received on May 4th and I'm going to be filing them.
Clerk:
Okay.
Judge:
Okay. As I give my reasons, I'll pause at the point where I had indicated that I was going to file them.
EXHIBIT 16: Brown envelope Patrick Fox May 25, 2023
EXHIBIT 17: Crown letter dated May 8, 2023
Judge:
Are Crown and Mr. Fox ready to proceed with sentencing today?
Laker:
Yes, Your Honour. With regards --
Judge:
So let me just check that Mr. Fox is. Mr. Fox, you ready to proceed to sentencing?
Fox:
Yes. I -- I am prepared, yes.
Judge:
Okay.
SUBMISSIONS ON SENTENCE FOR CROWN BY CNSL T. LAKER:
Laker:
Yes, Your Honour, Mr. Fox does have prior criminal record. And I will provide a copy of his JUSTIN conviction list for you which can be filed. As Your Honour will note, and you are without a doubt somewhat familiar with his background in light of the facts that are being presented before Your Honour in the -- in the trial, he was found guilty and sentenced back in 2017 for criminal harassment of his ex-spouse. He received a three-year jail sentence to be followed effectively, because of the time that he spent in custody. And then that was followed by the probation order of three years.
Since that time, he has breached that probation order on a number of occasions and that is set out towards the bottom of page one of his JUSTIN conviction list through to page 2. The last sentence that he received for breaching was before The Honourable Judge Denhoff back on February 25th of 2022. Effectively, he received a 12-month jail sentence with that probation order of three years to follow. In light of your Honour's decision today, the Crown submits that an appropriate sentence for the breach that's before Your Honour is an 18-month jail sentence. That is a -- that's taking into account the aggravating nature of Mr. Fox's continuing breaches. There is, in the Crow's submission, no mitigating factors such as an early guilty plea or anything of that nature. And -- and what I can advise is that, essentially, as of today, Mr. Fox has spent one year in custody, so he is at a time served situation.
So the next question really to consider is with regards to the probation order and whether or not there should be a separate probation order imposed by Your Honour. What I note is that there is an additional two years left on Mr. Fox's current probation order that was imposed by Judge Denhoff. What -- in light of Your Honour's comments with regards to the ambiguity revolving around the reporting condition, the question here is whether or not the probation order by Judge Denhoff should actually be amended so that it's a more clear --
Judge:
Well, that's a separate application in front of Judge Denhoff.
Laker:
Okay.
Judge:
I believe. I don't think I should be amending --
Laker:
Okay.
Judge:
-- Judge Denhoff's probation order.
Laker:
Okay. So what my suggestion would be is whether or not Your Honour would consider a further probation order of three years and it would only include conditions of no contact, direct or indirect, with Desi Capuano and, as well, the condition that Your Honour has convicted Mr. Fox of, and that is the condition that prohibits him from disseminating, distributing any materials that relates to her. Because, obviously, that is the Crown's sole concern at this point is that Mr. Fox discontinues the behaviour that he's demonstrated in the past that relates to Ms. Capuano.
And then what the Crown intends on doing is, in the very short term, bringing an application before Judge Denhoff to -- to address the reporting condition as it -- since it's still, essentially, in effect. And we don't want to place Mr. Fox in another situation where he could be found to be potentially breaching that condition, especially if it's not entirely clear.
Judge:
Well, I mean, I'll let Crown consider it, but if Crown accepts my analysis about a reporting part and continuing obligation part, then with respect to the reporting part, my analysis, at least, is that that's no longer binding --
Laker:
Yes.
Judge:
-- on Mr. Fox.
Laker:
Yes.
Judge:
It's just the continuing obligation part that is.
Laker:
Yes.
Judge:
Because I've already given my -- my reasons for that. So just to reply to your comment that -- that Mr. Fox could be in danger of breaching again. I think the Crown office has to -- has to consider that.
Laker:
Yes, absolutely. Absolutely, Your Honour. And what I can also advise is that Mr. Fox, I don't -- he's not going to be aware, but his last -- he also received a further decision today from the Court of Appeal about his most recent appeal. And that was dismissed, Your Honour. And Mr. Fox wouldn't be aware of that since he was appearing on this this morning. So he no longer has anything else current before the court, just so Mr. Fox is well aware of that situation.
The only other additional submissions that I have relates to an order that I'm going to ask Your Honour to -- to make that Mr. Fox immediately returns the laptop, hard drive, and written materials provided to him by Crown counsel. And it says when any of the following events occur, if the present case is being finally determined -- if his appeal is being finally determined, and further orders that the accused, Patrick Fox, if he is to be released from custody from a provincial correctional institution, he shall return the laptop, hard drive, and any written materials to the warden, or his or her designate, prior to leaving the provincial correctional institution where he may be held.
Judge:
so in other words, Mr. Fox probably hasn't seen this -- this order --
Laker:
No.
Judge:
-- this additional order you're submitting.
Laker:
No.
Judge:
But you're telling me -- essentially, Mr. Fox, I'm -- I'm looking at it, the -- the court is asking me to order -- I'll read it to you [as read in]:
The accused, Patrick Henry Fox, will immediately return the laptop, hard drive, and written materials provided to him by Crown counsel when any of the following events occur.
I think you might want an "and" between.
a) If the present case has been finally determined.
So in other words, the decision I just gave. And I haven't sentenced yet, so that's not completely done. And then there is no "and", but I think there is an implied "and" --
Laker:
Yes.
Judge:
[As read in]:
b) If his appeals have been finally determined.
And I might add that and in there. Because what -- what Ms. Laker just told me, and she said you don't know it, but she said that you had an appeal at the Court of Appeal that was dismissed today, and that means that your appeals have been finally determined, the outstanding appeals, okay? Are you following?
Fox:
Yes, but --
Judge:
Yes.
Fox:
-- there is an immediate appeal that's going to come from this conviction, though.
Laker:
Well, if there is, I -- I think the Crown still requires the materials to all be returned and then if Mr. Fox does file further materials, then we can certainly start that process of providing him with everything. Because the situation is is that he's going to be out of custody and that Crown -- he should not be maintaining the Crown's laptop, hard drive, and -- and also the written materials that the Crown has provided him.
Judge:
So perhaps Crown wants to amend the order because Mr. Fox does have a right of appeal of the decision I've just made to -- so perhaps Crown wants to amend the order that I'm looking at right now to only say, "requiring Mr. Fox to return the laptop, hard drive, and written materials provided to him by Crown counsel when the present case has --
Fox:
But -- I'm sorry to interrupt, but I can say I have no objection at all to returning all of the Crown's hardware to them at any time. I mean, even right now, I mean, they can have the Corrections come to my cell and get it. I have no objection to that.
Judge:
Right. They're -- they're asking me to make that order, Mr. Fox. And so what -- what I'm thinking is that I should cross off the -- if his appeals have been finally determined. And the Crown is asking me to sign the order, and I'll do it after I finish sentencing, if we do finish sentencing today, because that's when this matter is truly over from -- from a court perspective. That's when I'm done, is when I've sentenced you.
But if you don't have any objection, then, it -- it's just an order that once I've sentenced you in this matter, you'll return the laptop, hard drive, and written materials provided to you by Crown counsel and you'll return it to the warden, or his or her designate, prior to leaving the provincial correctional institution where you are held.
Fox:
Sure.
Judge:
Yes, okay. I think -- I think this order needs to be amended slightly, let me just have a look at it. It's the next step after sentencing, but maybe -- should I -- maybe I'll give it back to Crown to -- to either retype or take out the parts that are not going to apply.
Laker:
Yes. And that really is just subsection (b), Your Honour.
Judge:
Also, you might want to tighten it up, that you want to -- him to return the materials given to him in relation to this prosecution and return them specifically to the -- to the warden before he leaves the jail.
Laker:
Yes, okay.
Judge:
Because there is a bit of --
Laker:
Yes.
Judge:
Just --
Laker:
Thank you.
Judge:
Okay. So does that complete the Crown's submission? Crown is seeking that I impose a time served sentence and is seeking three further years of probation with the statutory conditions, with the condition that is condition five on the current order that Mr. Fox not have any contact or communication, directly or indirectly, with D.C., or any of her friends, relatives, employers, or coworkers. That he shall not disseminate, distribute, publish, or make publicly available the current condition six. And the order that we've just been discussing that Mr. Fox, when he -- when he gets out of jail, is going to return the laptop, the written material, and whatever else he's been provided with in relation to this prosecution. Does that -- does that complete the Crown's submissions on --
Laker:
Yes.
Judge:
Okay. Okay, Mr. Fox.
SUBMISSIONS ON SENTENCE BY ACCUSED:
Fox:
Yes. First up, I want to ask this order about returning the laptop and the material. Is that in a separate order, or is the Crown seeking for that to be part of the probation order?
Judge:
They are asking for that as a separate order. They're not --
Fox:
Okay, great.
Judge:
-- asking for it as part of the probation order.
Fox:
Right, right. Good, I was going to say, the probation order wouldn't take effect until I get released anyway, and so I don't see how they could require me to return the material before I'm actually released under the probation order.
Judge:
Right.
Fox:
But anyway, with regard to the 18 months, I have no submissions on that. I honestly don't care. With respect to the Crown's request for further probation, I want to point out that there are other copies of the website online, cache copies that I have absolutely nothing to do with. And this has already been well established in the previous matters. Like, for example, in archive.org, there is a copy of the website on there. I can't make this U.S. based, non-profit organization that makes cache copies of websites on the internet, I can't make them take this down. And so by imposing these conditions that require me to take all steps to ensure that copies of that no longer exist on the internet, it's -- it's impossible. Like --
Judge:
So --
Fox:
The other point I want to make is --
Judge:
So -- so just -- sorry to interrupt you there. But I'm not going to --
Fox:
Sure.
Judge:
-- put condition four on -- on this probation order and Crown is not asking me to. Okay, so -- so the conditions they're asking, in addition to the statutory, are condition five, you shall have no contact or communication, directly or indirectly, with Desiree Capuano, any of their friends, relatives, employer, or coworkers. Condition six, you shall not disseminate, distribute, publish, or make publicly available in any manner whatsoever, directly or indirectly, information, statements, comments, videos, or photographs which reefer to depict by name or description Desiree Capuano or any of her friends, relatives, employers, or coworkers.
Fox:
Okay. My apologies, I thought they were also seeking to re-enforce condition four, but without the reporting requirement.
Judge:
No, Crown has indicated that they may -- they may decide what they're going to do about that. They may go back in front of Judge Denhoff and ask her to, you know, either party --
Fox:
Sure.
Judge:
-- can apply to change a condition of probation. They're going to consider what they would like to do with that. But -- but properly, that should go back in front of the judge that made the order to change it. I wouldn't change another judge's order.
Fox:
Okay. And the only other submission that I would want to make with respect to that is, these probation conditions for the past four years have created a situation where Ms. Capuano could easily throw a copy of the website online and then call the police and tell them that it's there and then I get arrested and spend another year in jail. I believe I brought this up in my closing submissions. And so I'm afraid that the same situation is happening now. I'll get released from custody, Ms. Capuano will go ahead and put the website online for a day or two. I'll be arrested a week later, and I'll be back in jail for another year. I mean, there -- there must be some requirement that the Crown must have to prove that I am the one involved in putting the website online. Like, it's too easy for Ms. Capuano to ensure I spend the rest of my life in jail by simply doing this every time I get released.
Judge:
You know, you mentioned something like that in your closing submissions. Your closing submissions were challenging because you kept giving me evidence and I had to decide the case based on the evidence that was before me and you heard my conclusion. The only reasonable inference from what Sergeant Shook said, the contents of the blog post, were that you were involved in that and on that basis, I found you guilty.
Now, it's up to you what you do. If you do wind up, as you've just indicated, charged again, you can always present evidence, which you didn't choose to do, in -- in this particular case.
Fox:
I -- I understand and I appreciate that. But the thing is, once I'm in jail, it's extremely difficult for me to obtain any evidence of who actually is running the website. The police can obtain that evidence pretty easily from GoDaddy. But there is very little that I can do, and so for the Crown to put the burden on me to prove that -- that I'm not the one putting the website online, I mean, it's -- it creates quite a hurdle for me to overcome. So I'm just wondering if we could put some wording in the probation condition that would require them to -- before they come and arrest me, require them to establish that I'm actually in any way involved in it being put online.
Judge:
So it would be up to the Crown to review anything received from police to determine if their charge approval --
Fox:
Mm-hmm.
Judge:
-- standard is met. Which involves consideration of some of the issues you're raising. I have a duty to help you, but I have to stop short of giving you legal advice. What I could say is you should explore some of these topics you're raising with a lawyer that you trust and choose to speak with.
Fox:
Okay.
Judge:
Anything further --
Fox:
I don't -- oh, sorry.
Judge:
No, I -- I just want to make sure, anything further with respect to the Crown's submissions?
Fox:
No, I was going to say, I have nothing further.
Judge:
Okay. All right, I'm going to take the morning break early just to have a closer look at the JUSTIN conviction list, come back, I'll sentence Mr. Fox then and then I -- I know that the next matter, counsel are waiting patiently, so I expect that will probably get underway shortly after 11. So if counsel want to return -- perhaps after the break. It won't be too long after the break.
Unidentified Speaker:
Would 11:15 be appropriate, I think?
Judge:
11:15 will be fine. I'll be back here -- we'll take the break until 5 after 11. I'll -- and I'll give my reasons for sentence for Mr. Fox then.
Elias:
Thank you, Your Honour.
Clerk:
Order in court. All rise.
(PROCEEDINGS ADJOURNED FOR MORNING RECESS)
(PROCEEDINGS RECONVENED)
Judge:
Please be seated.
Laker:
Your Honour, my colleague and I just revised the order and I think it's a little more straight forward and simple, especially now that we know what's happening with the appeals and we're just relating it to this. So please take a look and let us know if there is any additional changes you would like us to do.
Judge:
Okay. Would you like me to read this order to Mr. Fox?
Laker:
Yes, please.
Judge:
Okay. So Mr. Fox, the order reads [as read in]:
Upon application of Tara Laker and Ryan Elias on behalf of the Provincial Crown, and upon hearing the accused, Patrick Fox, on his own behalf --
So I will ask to hear from you. For now, I'm just reading the order. Although you said earlier you didn't object to returning the materials you received.
This court hereby orders that the accused, Patrick Henry Fox, will immediately return the laptop, hard drive, and written materials provided to him by Crown counsel when the present case has been finally determined prior to be released from custody.
And then it reads [as read in]:
And further orders that this return shall be to the warden or his or her designate prior to leaving the provincial correctional institution from which he is being released.
Fox:
Okay.
Judge:
I'm think that perhaps I should just change the phrasing slightly. Written materials provided to him by Crown counsel when Mr. Fox has been sentenced in this case.
Laker:
Yes, that's agreeable, Your Honour, yeah.
Judge:
I'm going to make that change, Mr. Fox.
Fox:
Okay.
Judge:
All right. I'm going to come back to that. I'll read it to you again at the end of my reasons for decision before I sign it, okay?
Fox:
Okay.
Judge:
When I saw the JUSTIN conviction list, I realized I made a mistake in saying that the detention order in July 2022 had not been subject to review. It was. I just didn't know about.
Judge:
Do you have anything you -- you want to say about that order?
Fox:
No.
Judge:
Okay. Earlier you had said that you -- you agreed with that. You were fine to return those materials before you left custody.
Fox:
Yes.
Judge:
Okay.
Fox:
I have absolutely no interest in the Crown's 15-year-old laptop. And the data that would be on it, I already have a copy of all that anyway, so I -- so I have --
Judge:
Okay.
Fox:
I have nothing further to say. I have no concerns about it.
Judge:
Okay, thank you. I have signed the order, then. I'm just going to hand that back. And I don't know if Crown wanted to make the JUSTIN conviction list an exhibit?
Laker:
Yes. If it could be an exhibit at the sentence.
Judge:
Okay. If the JUSTIN conviction list could be made an exhibit at the sentencing phase.
EXHIBIT 1 (on Sentence): JUSTIN conviction
Laker:
I believe that concludes our matter, Your Honour. Thank you.
Judge:
Yes, thank you. That completes the Fox matter.
Laker:
Oh, I just want to confirm, Mr. Fox, your email address.
Fox:
Yes, patrickhfox@gmail.com.
Laker:
Okay, great. Thank you.
Fox:
But also, David Layton and Mark Myhre have it as well.
Laker:
Yes, okay. Thank you.
Fox:
Thank you.
Elias:
Thank you, Your Honour.
(VIDEOCONFERENCE CONCLUDED)
(PROCEEDINGS CONCLUDED)
Transcriber: J. Vanin