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Desiree Capuano & James Pendleton
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R. v. Patrick Fox - Trial Transcripts

Highlighting Legend
Perjurious testimony which defense counsel (Tony Lagemaat) and Crown Counsel (Mark Myhre) knew of
Critical statements - e.g. inciminating admissions
Statements of interest - e.g. testimony which Lagemaat should have known to pursue further or cross examine on, but didn't
Click on any highlighted text to display the associated comments/annotations.
27178
Vancouver Registry
In the Supreme Court of British Columbia
(BEFORE THE HONOURABLE MADAM JUSTICE DUNCAN)
Vancouver, B.C.
March 29, 2017
REGINA

v.

PATRICK HENRY FOX
PROCEEDINGS IN CHAMBERS
(Pretrial Conference)
COPY
BAN ON PUBLICATION 486.5(1) CCC
J.C. WordAssist Ltd. (Vancouver)
Suite 614 - 808 Nelson Street, Vancouver, B.C. V6Z 2H2
Phone 604-669-6550
27178
Vancouver Registry
In the Supreme Court of British Columbia
(BEFORE THE HONOURABLE MADAM JUSTICE DUNCAN)
Vancouver, B.C.
March 29, 2017
REGINA

v.

PATRICK HENRY FOX
PROCEEDINGS IN CHAMBERS
(Pretrial Conference)
COPY
BAN ON PUBLICATION 486.5(1) CCC
  • Crown Counsel:M. Myhre
  • Appearing on his own behalf:P. Fox
J.C. WordAssist Ltd. (Vancouver)
Suite 614 - 808 Nelson Street, Vancouver, B.C. V6Z 2H2
Phone 604-669-6550
Proceedings

BAN ON PUBLICATION 486.5(1) CCC


Vancouver, B.C.
March 29, 2017

MR. MYHRE: Good morning, My Lady, Mark Myhre for the Crown.
THE COURT: Mr. Myhre.
THE CLERK: Calling Her Majesty the Queen and Fox.
THE COURT: Mr. Myhre, is there a copy of the indictment that the Crown is proceeding on? I received something from scheduling this morning but I understood that it was perhaps a work in progress.
MR. MYHRE: The Crown is proceeding on the dash 2 indictment.
THE COURT: Thank you.
MR. MYHRE: So as long as that's in the file.
THE COURT: Good morning. Are you Mr. Fox?
THE ACCUSED: Yes, I am.
THE COURT: You can have a seat, Mr. Fox. This morning -- I'm not sure what your understanding is of the process, but this is a pretrial conference. You've got a jury trial coming up in a couple of months and it's customary in Supreme Court to hold pretrial conferences to hopefully iron out some procedural issues before the matter goes to trial.
So I can advise that I reviewed the Crown synopsis which gives a general overview of the case. And I think before I ask Mr. Myhre any questions, Mr. Fox, what I'm going to ask you is, have you done a jury trial by yourself before?
THE ACCUSED: Not representing myself.
THE COURT: Right.
THE ACCUSED: That case was dismissed in court.
THE COURT: All right. So you have not been involved either with or without counsel on a jury trial, is that fair to say?
THE ACCUSED: I have been involved in a jury trial with counsel.
THE COURT: All right. So my next question is, do you have any intention to have counsel assist you with this matter?
THE ACCUSED: No, I do not.
THE COURT: All right, so you're going to act for yourself. So what I'm going to start off with then is I am going to hand out to you and Mr. Myhre and also mark for the court file, a very, very general overview of the trial process, because judge alone trials are one thing, but judge and jury trials are quite another, and they are procedurally quite complex, especially things like jury selection.
So I am going to hand you out what looks to be a rather long and daunting document but in it you will see sections devoted to jury selection as well as the trial process itself. And I'm not going to expect you to read it while I'm talking, it's something you will have to take away and look at prior to your next court appearance.
So I've got a copy for the court file, it could just be dated stamped, Madam Registrar, that's sufficient, it's not an exhibit. I have a copy for Mr. Myhre and I've got a copy for Mr. Fox. And Deputy Sheriff, the staple in it is protruding so it may well be --
MR. MYHRE: Thank you.
THE COURT: -- best to remove it so no one cuts themselves. And perhaps we can arrange for a clip or something before Mr. Fox goes back into custody.
THE ACCUSED: May I interrupt for one moment?
THE COURT: You may.
THE ACCUSED: May I borrow a pen from someone, please? I'm not permitted to bring one from the jail.
THE COURT: No, and the deputies will furnish you with one from court. Very good, all right.
So and I've asked that it be given both to the Crown and put on the court file just to make sure everyone is on the same page at the trial, what information you've been given in advance of the trial.
All right. So currently we've got jury selection set for May 30th and I guess my question for Mr. Myhre is -- we'll get to the pretrial applications in a moment, but my question, Mr. Myhre, is since there's a gap of about three weeks between jury selection trial, is it the Crown's view that 14 jurors should be chosen?
MR. MYHRE: That sounds like a prudent idea, My Lady.
THE COURT: All right. So, Mr. Fox, usually when a jury is chosen Crown and defence look for 12 people. Sometimes when there's a gap between when the jury is picked and when the trial starts they pick an extra two just in case people become ill or unavailable between when they are picked and when the trial starts. So what I've suggested, and Mr. Myhre agrees, is that when you go to jury selection you be prepared to choose 14 jurors. The last two chosen will be sent home on the day of trial if the original 12 are still available. So that's just a procedural thing. That's covered in the document I gave you about jury selection.
THE ACCUSED: Yes.
THE COURT: So we are not going to go any further on jury selection at this point. But I do encourage you to study the ins and outs of jury selection.
THE ACCUSED: I will.
THE COURT: With a view to choosing 14 rather than the usual 12.
All right, so Mr. Myhre, I understand that there's a number of applications set for April 18th, is that correct?
MR. MYHRE: Yes, although that's going to have to change, I understand, My Lady.
THE COURT: All right. So maybe you could outline to me, and as I say, I've read the synopsis and I understand the Crown's applications are for a variety of measures concerning what I'll call the main Crown witness in terms of a support person and a lawyer to cross-examine that person; is that correct?
MR. MYHRE: That is correct.
THE COURT: All right. So that would have taken place on April 18th but that's now not going to happen?
MR. MYHRE: Yes, Mr. Fox informed me via letter in February or maybe -- he sent me three letters since our last appearance here in court. In one of those letters he pointed out that the 18th is the last day of Shevat and he cannot attend on that day.
THE COURT: All right, so --
MR. MYHRE: So that will have to be rescheduled.
THE COURT: All right. So have you had an opportunity, Mr. Myhre, to look at subsequent dates?
MR. MYHRE: I have not canvassed subsequent dates. I wanted to canvass what applications need to be made so that we can determine the right time estimate today.
THE COURT: All right. So, Mr. Fox, we will regard April 18th as a day that's not available for the Crown's applications because of Shevat.
THE ACCUSED: Just one minor correction.
THE COURT: Yes?
THE ACCUSED: It's actually the last day of Passover.
THE COURT: It's Passover?
MR. MYHRE: Passover, sorry.
THE COURT: It's a bit of a difference but it remains the same, so it's the last day of Passover. Thank you.
So, Mr. Myhre, can you outline for me the applications the Crown does intend to make prior to trial?
MR. MYHRE: Yes, so there are -- there's an application to have counsel appointed to cross-examine Ms. Capuano. And my understanding from -- I should say last day we were in this court Mr. Fox and I had fairly extensive discussions, facilitated by Judge Silverman, and so some conclusions were reached at the end of that. I understand that Mr. Fox is not opposed to that application and in fact if he continues in that position I would ask Your Ladyship to make that order today so that I can get the ball rolling with counsel.
The next application the Crown intends to make is to have Ms. Capuano, who will be here in person, testify from behind a screen. I'm not sure if Mr. Fox is opposed to that application. The Crown will also be applying to have a support worker sit next to her. She is -- the support worker proposed by the Crown is a victim service worker with the Burnaby RCMP. And so I'm not sure -- I know Mr. Fox was opposed to Ms. Capuano testifying via video but I'm not sure if he's opposed to the screen or the support person.
THE COURT: All right. So first of all, Mr. Fox, in matters of this nature the Crown can apply under the Criminal Code to have a lawyer appointed for the limited purpose of cross-examining what I'll loosely call a vulnerable witness. I think you have an understanding of that, do you?
THE ACCUSED: Yes, the four issues.
THE COURT: Yes, thank you. So what is your position concerning the Crown's application that he has articulated, and I think you've heard of four, to have a lawyer appointed to cross-examine the complainant in this case?
THE ACCUSED: First, is it appropriate that I stand when I address the court, or --
THE COURT: Usually, but if you've got -- if you're trying to make notes and talk at the same time I'm not going to insist that you stand up.
THE ACCUSED: Right. With respect to the 486.3, I oppose that.
THE COURT: Okay.
THE ACCUSED: And I don't think that that is something that is a decision to be made on today at this point.
THE COURT: No, not if you're opposed.
THE ACCUSED: The 486.2 and the 486.1 I have no opposition to.
THE COURT: All right. Maybe, Mr. Myhre, you can help me because my Criminal Code did not make it to the courtroom with me. So I just want to be clear that Mr. Fox is not opposed to orders under 486.1 or 486.2 of the Criminal Code. So if you --
MR. MYHRE: 486.1 is the application for a support person.
THE COURT: Yes.
MR. MYHRE: 486.2 is the testimony from behind a screen. So given Mr. Fox's position, can I hand up to Your Ladyship a draft order for those two subsections?
THE COURT: All right. So, Mr. Fox, you are not opposed to an order that the complainant testify with a support person nearby and that she testify from behind a screen; that you will be able to see her, she will not be able to see you. Do you understand that?
THE ACCUSED: Yes, I do, and that's fine.
THE COURT: And you consent to those orders today; is that correct?
THE ACCUSED: I do.
THE COURT: All right. Thank you, Mr. Myhre, you can hand those up and we will dispense with Mr. -- the necessity of Mr. Fox's signature on those orders given that we've done it on the record with his consent.
MR. MYHRE: Thank you, My Lady, and I've got two copies here, one that could be kept in the court file, and if I could keep one myself and I can get Mr. Fox a copy.
THE COURT: Thank you.
MR. MYHRE: So you can see, My Lady, it's a standard form where I've just checked off --
THE COURT: Yes.
MR. MYHRE: -- support person.
THE COURT: 486.1, and what I'm going to do, just for the completeness of the record, is I'm going to cross out the ones that are not checked just so the document doesn't look -- it will look cluttered but it won't be confusing. No, it's too late for that.
So I am going to give Madam Registrar the one that I originally signed. And on the other one I'm just going to write "copy" at the top.
MR. MYHRE: Actually I believe this one should stay in the court file.
THE COURT: The originally signed one, I think you need to file that in -- with scheduling.
MR. MYHRE: Okay.
THE COURT: Yes, and the copy remains on the court file so the record will reflect that I have granted those two orders. So then that significantly decreases -- perhaps significantly decreases the amount of time that's going to be required for the Crown's application for a lawyer to conduct the cross-examination. Is that fair to say, Mr. Myhre?
MR. MYHRE: Yes, and My Lady, I would anticipate a morning for the Crown's application under s. 486.3 for the counsel to cross-examine.
So the next potential application: My Lady, last day in front of Judge Silverman, Judge Silverman canvassed the voluntariness of a statement the Crown intends to lead, a statement Mr. Fox made to Constable Potts of the Burnaby RCMP. And after a fair bit of back and forth with -- with Judge Silverman confirming with Mr. Fox that he understood what voluntariness meant, Mr. Fox agreed on the record that he admitted that that statement was voluntary.
In a letter to the Crown, one of the three letters I referenced that he's sent me since that day, he has indicated that he wants to cross- examine a police officer in relation to the lawfulness of his arrest.
THE COURT: All right. So Mr. Fox --
MR. MYHRE: By the Burnaby RCMP after he was handed over by U.S. Authorities, essentially.
THE COURT: Mm-hmm.
MR. MYHRE: Do I have that right, Mr. Fox?
THE ACCUSED: No, no.
THE COURT: Okay.
THE ACCUSED: I don't think that there's any question about the lawfulness of the arrest once I was returned to Canada. The questions that I have, though, relate to under what authority I was returned to Canada, like for -- for what reason. The RCMP was not requesting that Homeland Security return me here. I'm not sure that those questions, though, directly relate to this matter.
THE COURT: What is your citizenship, Mr. Fox?
THE ACCUSED: I am a U.S. citizen. I was born in the U.S. but the Canadian government insists that I am a Canadian citizen.
THE COURT: What passport do you hold?
THE ACCUSED: I don't any.
THE COURT: Have any. Okay. And your birth certificate is from the United States?
THE ACCUSED: Yes. I have a U.S. birth certificate but the U.S. government some years ago accused me of being an illegal alien from Canada and they accused me of being a person from Ontario. They then told the Canadian government that I am that person, so the Canadian government insisted I'm that person and that's how I end up here.
THE COURT: All right. So, Mr. Myhre, it seems that Mr. Fox is not challenging the lawfulness of his custodial status in Canada and I think matters extraneous to this court's jurisdiction, such as United States, might be outside the jurisdiction of this court for the purposes of indictment. But I don't know why he was returned to Canada.
So is there a particular officer from a Canadian police force that you want to cross- examine?
THE ACCUSED: I would need to check my notes.
THE COURT: All right, go ahead and check your notes.
THE ACCUSED: I don't remember exactly.
MR. MYHRE: Mr. Fox, I might suggest that it was Constable Denise Cam [phonetic] who, according to the Report to Crown Counsel, said that she formed the grounds to have you arrested and arranged for that to happen at the border.
THE ACCUSED: Yes, I believe you're correct, but the reason that I wanted to cross-examine Constable Cam was because of some of these statements that she had put one of her affidavits, particularly for the seizure of the firearms.
MR. MYHRE: So Mr. Fox in the letter also raised issues with the police search of his house. Now, well, before Mr. Fox was brought back to Canada by U.S. authorities, U.S. authorities had some communication with Canadian authorities, who then got a search warrant and searched his house, looking for firearms. They didn't find anything, there's nothing from that search that the Crown would be reading or any circumstances related to it that the Crown would be leading at trial.
So I think Mr. Fox would maybe have some questions for those officers but it doesn't seem to me that that -- those questions would relate to any potential evidence or issue at the trial.
THE COURT: Mm-hm. So, Mr. Fox, just to decode what Mr. Myhre is saying, you are best not to wander off the four corners of the indictment and start taking issue with criminal suspicions or investigations that are not before the court in relation to the harassment or the other count before the court, and the reason for that is juries are repeatedly told to listen to the evidence, disregard bad character evidence. And if you start asking officers about things that aren't really related to the indictment the jury is going to wonder a little bit about things that they probably shouldn't be wondering about, that being, to put it bluntly, whether or -- whether or not you are of bad character.
THE ACCUSED: With all due respect, I think Mr. Myhre's -- is that how you pronounce it, Myhre? Mr. Myhre may have been misinterpreting some of what I was stating in the letter.
THE COURT: All right.
THE ACCUSED: Because -- yes.
THE COURT: Okay.
THE ACCUSED: Sorry, nothing more to say on that.
THE COURT: No, so here's what I'm going to suggest is we are going to have to concern ourselves with setting a date for the application the Crown is going to make under 486.3 for the appointment of a lawyer. That's going to be some time not too long after the 18th of April. And I'm going to suggest between now and that date you think carefully about what is on the indictment and what the jury will hear about the indictment and the matter that you raised in the letter to Mr. Myhre.
Because juries are brought from the community, they are regular working people and when we choose a jury we tell them, "Look, this trial is scheduled to last for 10 days." We always tell them sometimes things go shorter, generally they'll go longer. And you have to concern yourself with obviously putting the best defence forward, making sure the Crown proves its case, but at the same time it will be the role of the trial judge to minimize the times that the jury has to be sent out of the courtroom to deal with issues that shouldn't or may not be properly before them and that might include what you've got some concerns about in terms of the -- the other firearms suspicions.
So we've got 12 normal people, we take them away from their jobs and we tell them this trial will last 10 days. But if it becomes prolonged then it can cause difficulties with people -- people tell their employers they'll be back in 10 days and then if they're not they are perhaps under some pressure to get back to work or get back to their families and so on.
So if the goal is to have this trial done fully and fairly in 10 days, I think you really need to consider how much beyond the indictment you need to go to properly defend yourself.
So you're certainly free to put matters to witnesses, police witnesses included, that may impact on their credibility. But if the Crown is not going to be relying on that particular constable's affidavit you might want to wonder, well, is that going to be something that's going to help my case in front of a jury or hurt it. So I'm not telling you not to make the application, I'm just telling you to look at the big picture, focus on the indictment and what the Crown has to prove and what you -- what you need to do to defend yourself. Okay?
THE ACCUSED: Thank you, I understand. I do now for the record wish to express some concern about the amount of time set aside for the trial and we discussed this somewhat at the previous hearing.
THE COURT: Okay.
THE ACCUSED: I do intend to cross-examine some of the witnesses such as Ms. Capuano quite extensively.
THE COURT: Okay.
THE ACCUSED: And personally I don't think that the trial is going to be able to be completed within the two weeks that's currently allotted.
THE COURT: All right. So that's a -- that's a good concern to put on the table at this point. Mr. Myhre, sort of generally, I mean Crown usually makes the estimate in consultation with defence counsel. There's no counsel in this case. Just roughly how did you arrive at the 10 days and was that something Mr. Justice Silverman queried you about?
MR. MYHRE: Wat happened last day, My Lady, is that we stood down and I had a discussion with Mr. Fox and we went through each witness estimating how much time each would take, and basically we've set aside an entire week for Ms. Capuano.
THE COURT: Okay. Direct and cross-examination?
MR. MYHRE: Yes.
THE COURT: All right.
MR. MYHRE: I think I'll be one day with her in direct. Mr. Fox could potentially be two or three days with her in cross.
THE COURT: Okay.
MR. MYHRE: And then the rest of the witnesses, the potential for Mr. Fox to call evidence.
THE COURT: All right. Mr. Fox, you don't have to tell me if you're calling evidence, but if you are, is that one of the concerns that you think puts this beyond a 10-day trial?
THE ACCUSED: Yes. Yes, I do intend to call some witnesses that I haven't disclosed and probably won't --
THE COURT: Okay.
THE ACCUSED: -- prior to that. I've also, though, since decided that I'm going to testify myself as well and that will probably take two or three days at least.
MR. MYHRE: And, My Lady, there are a couple of other applications we should discuss, but since we're on the topic of time estimates, in his letters Mr. Fox asked the Crown to arrange for a number of witnesses to be present at the trial.
So I've reflected on the list of witnesses that he's asked for and I can advise the court and Mr. Fox that I am willing to call James Pendleton to the stand. My understand -- Mr. Pendleton is Ms. Capuano's partner, they both live in the United States. My understanding is that he is travelling to Canada and so my intention will be to serve him with a subpoena when he arrives in Canada. I will call him as part of the Crown case; I have very few questions for him but I understand Mr. Fox would have some questions for him.
THE COURT: Okay.
MR. MYHRE: Now, Mr. Fox has also asked for a police officer who declined to revoke his possession and acquisition licence. He has asked for the lead investigator to testify. He has asked for two reporters from CBC to testify. These reporters took statements or did interviews of Mr. Fox and Ms. Capuano and he, as I understand it, would like to tender both of those statements and ask them about their respective demeanours and their opinion as to the truth-telling of the people they interviewed.
Certainly I won't be subpoenaing the CBC reporters. Similarly this police officer --
THE COURT: Well, just -- we'll stop there. I don't know if this is something that was discussed before Mr. Justice Silverman, Mr. Fox, but the court will not hear from witnesses who have opinions about the truthfulness or otherwise of any witness or of you. The ultimate arbiter of credibility and truthfulness is going to be the jury and it will add nothing to the trial process for you to call witnesses who say what they think about your truthfulness or otherwise.
You can call good character witnesses who -- who can testify as to your reputation in the community, but calling witnesses who are going to testify favourably about your credibility or otherwise is not a permissible use of court time, it's not a permissible route to take on the basis of the Rules of Evidence. So I encourage you to have a look through the document I gave you today, it's going to give you some -- some idea about some of the rules of evidence about challenging credibility. But this is not going to turn into a trial of you calling witnesses who will comment on the credibility or truthfulness of you or the complainant.
THE ACCUSED: Thank you. I understand that. My intention with the journalists was partially to authenticate the video and also to possibly answer some questions about decisions with respect to having her coaching Ms. Capuano for the interview etc. and why they may have decided not to include certain statements by her. Not so much to give their opinion on her character.
THE COURT: Well, if you -- if you seek to call those witnesses as part of your case and you are successful with the trial judge allowing you to call them for those limited purposes, the Crown may well be entitled to recall the complainant to testify about the coaching or other -- otherwise, as you allege.
There's a rule of evidence, lawyers call it the rule in Browne v. Dunn and if you don't confront a witness on cross-examination with a contrary version of events or a contradictory version of events, and then you tender evidence that contradicts them on those points, the prosecution is entitled to recall parts of its case to essentially in fairness to the witness to demonstrate why that might not be so.
So you can't simply cross-examine the complainant on a -- on a few areas and then, you know, it's like sandbagging in poker, if you're familiar with that term, you can't keep your chips in your pocket when you're cross-examining, you've got to put your chips on the table and if you don't do that then the Crown can fill in the patches in re-examination and recalling witnesses.
So just bear that in mind as you're calling your case and as you are cross-examining, particularly if there's something you want to put to witnesses on cross-examination, do it, because if you don't you may run into difficulties in your case; you think you've called evidence to contradict them and then the Crown can make an application to come back and bring the witnesses back to what we call rehabilitate them, and that is to have them address a matter that they weren't confronted with in the first place.
It's a little convoluted. The rule in Browne v. Dunn is referred to in the materials I gave to you. I encourage you to study that very carefully when you consider both your cross-examination and -- and any witnesses that you might call and the subject matter of their evidence. All right?
THE ACCUSED: Yes.
THE COURT: Okay.
MR. MYHRE: So that brings us to another potential application, My Lady. So Mr. Fox clearly would like Ms. Capuano's interview that she did with the Canadian Broadcasting Corporation. Now, the Crown is actually trying to get Mr. Fox's interview, and that's the subject of an ongoing dispute between the RCMP and CBC, they've been fighting over it.
THE COURT: Mm-hmm.
MR. MYHRE: And I don't know if it will be settled by the time of trial or not. Because that is already underway I did -- when I got Mr. Fox's letter it seemed to me that he was -- would clearly like to be in possession of Ms. Capuano's interview with CBC and so I asked the RCMP if they could add that to the production order, but things are already underway and my understanding is that they are not willing to do that, and that's their prerogative as the investigative agency.
THE COURT: Right.
MR. MYHRE: Which means that if Mr. Fox really does want that interview he's going to have to make an application for it that would involve the CBC.
THE COURT: Yes. So, Mr. Fox, just so you understand, the police are trying to get by way of a production order which is kind of like a mini search warrant in the Criminal Code documents that they want -- or the interview that you want, it's too late, in the vernacular, piggyback that on the application. So you're going to be on your own with that, with that kind of an application.
THE ACCUSED: I already actually have both of those interviews, the full interview footage.
THE COURT: Okay.
THE ACCUSED: So I don't require it through the court.
THE COURT: So you don't require a court order, okay. All right. And in terms of the use of Ms. Capuano's interview, again that is or may be fair game to cross-examine her on.
THE ACCUSED: Quite.
THE COURT: Okay, you understand that?
THE ACCUSED: Yes.
MR. MYHRE: The next potential application relates to the Crown's application to have two ATF agents testify from California, and I understand my friend -- I should say Mr. Fox is, is opposed to that.
THE ACCUSED: No, I don't oppose that.
MR. MYHRE: You are not opposed to them testifying from California. Then at the next date I will formally make that application and seek an order under s. 714.2 allow them to do that.
THE COURT: Good.
MR. MYHRE: The -- Mr. Fox has requested -- he requested disclosure of a number of investigative files that related to him and Ms. Capuano from 2015 in a -- in a letter to me in -- at the end of February, and I sent him some disclosure just very recently, maybe -- did you get it already?
THE ACCUSED: I did receive it.
MR. MYHRE: I noticed that there are some appendices missing, so I've asked the police to follow up and get me those things. But one of the things that was disclosed in there was another statement that Mr. Fox made in 2015 and so I want to advise Mr. Fox that I also intend to lead that statement at the trial. That's your statement to Constable Huggins. And so there's a potential Crown application to prove the voluntariness of that statement.
THE ACCUSED: I believe that statement was already provided in previous disclosure.
MR. MYHRE: In any event, it was only recently that I decided that I would like to lead that at the trial.
THE COURT: All right. So there's -- there's one statement that Mr. Myhre has discussed with you, Mr. Fox.
THE ACCUSED: Yes.
THE COURT: And it appears that you have agreed that it's voluntary. You have to put your same thought processes on the 2015 statement, which I understand is a different one from the one that the Crown originally asked you to consider the voluntariness issue. So that should go on the list of things for you to -- to consider whether or not you want to admit voluntariness or if you want the Crown to -- to prove it on a voir dire.
THE ACCUSED: Okay.
MR. MYHRE: At the last appearance Mr. Fox indicated that he was willing to admit that the handguns that he registered and that the Crown says that he shipped to California were restricted firearms as that term is defined in the Code and used in s. 93, the section under which he's charged. And I sent Mr. Fox a draft admission about a month ago. I wonder if Mr. Fox had a chance to consider it.
THE ACCUSED: Yes, I reviewed it and everything seems fine to me.
MR. MYHRE: Okay, that being the case, I do have a copy that could be signed and filed with the court today.
THE COURT: All right, just let Mr. Fox have a look at it. I'm sure it's exactly the same as the one you sent him, but we just want to make sure, since we're doing it on the record, that it is indeed the one that he has reviewed. And if it is the one that's consented to, then that admission can be signed and the Crown can deal with it as an exhibit or read in in the usual course.
THE ACCUSED: Shall I sign?
MR. MYHRE: If you are content to admit that.
THE ACCUSED: Nos obviously I haven't memorized all the serious numbers of the pistols but I assume they are correct.
THE COURT: All right, thank you, Mr. Fox.
MR. MYHRE: The last admission, as I reflected on the case, that the Crown would be seeking from Mr. Fox --
THE COURT: Stop there, Mr. Myhre. I am not required to sign an admission of fact, so Mr. Fox has signed it and you have signed it, and what I'm going to suggest is that it be -- well, it's theoretically part of the Crown's case.
MR. MYHRE: Yes.
THE COURT: So I would suggest you hang onto it and tender the original as an exhibit at the outset of the trial and have copies made for yourself and Mr. Fox to have, but that admission has been made, so you can hang onto that, Mr. Myhre.
MR. MYHRE: Very well, thank you.
THE COURT: All right.
MR. MYHRE: I will be asking Mr. Fox to admit his United States criminal record, but I -- if you know today that you're not willing to admit that you could say so. If you are, I can draft something.
THE COURT: Just before you answer, Mr. Fox. Mr. Myhre, where in the Crown's case is Mr. Fox's criminal record relevant?
MR. MYHRE: That would be put to Mr. Fox if he testifies.
THE COURT: If he testifies. All right, so Mr. Fox, the rule is the Crown leads its case focused on the counts in the indictment. They don't lead evidence of a criminal record or bad character except for very limited purposes. So the only reason Mr. Myhre wants to know if you admit your U.S. criminal record, which I assume he has furnished you with, is that when you testify it's fair for the Crown to put to you prior convictions that are admitted. So it won't form part of the Crown's case, but if you testify then you need to know that that can be put to you.
There's one concern I have, and that is, Mr. Myhre, with respect to two cases, Underwood and Madrusan, and that is concerning the subject matter and the extent of the accused's criminal record when it's a jury trial.
So just shorthand, Mr. Fox, we're saying the jury can hear that you've got a criminal record but if it's a massively long criminal record with lots and lots of really bad things on it, you can make an application to have it -- sanitized is the wrong word, but there can be an application to have it summarized for the jury so that they know you've got a record for particular things but they don't need to see a great long list of a rap sheet, essentially.
THE ACCUSED: Right.
THE COURT: All right, so that's something that -- that ball is in your court if you want to make that application before you testify to know precisely what criminal record the Crown is going to be putting to you and what the jury will know about.
So, Mr. Myhre --
MR. MYHRE: I can advise just for Mr. Fox's benefit that if Mr. Fox testifies the conviction that the Crown is interested in putting in front of the jury is the conviction for perjury.
THE COURT: All right.
MR. MYHRE: One conviction for perjury.
THE COURT: All right. So just for your edification, Mr. Fox, a conviction for perjury, fraud, theft, those kinds of offences, those are generally very relevant for a jury to consider when assessing the credibility of a witness. So you are free to apply to have your criminal record sanitized, but I would have to say that a perjury conviction is extremely relevant in the eyes of somebody assessing your testimony.
THE ACCUSED: Mm-hmm.
THE COURT: So not -- I am not the trial judge, not making a ruling, I'm just giving you a heads up in that regard.
THE ACCUSED: If the perjury conviction were to be brought up, would I be able to provide explanation or background on that conviction, for example [indiscernible/overlapping speakers].
THE COURT: Don't tell me anything about the background or anything.
THE ACCUSED: You see, I would think it would serve my purposes, my interests very well if a perjury conviction and false claim of U.S. citizenship conviction were brought up at the trial, as long as I would then be able to provide some explanation about those convictions. Of course I'm sure -- I'm sure you see where I'm going with that.
THE COURT: Well, to a certain extent an explanation is permitted. If you -- if the explanation is by way of a denial there is case law from the Supreme Court of Canada that a conviction is a conviction unless it's challenged or set aside, so the fact of the conviction is fair for the jury to hear. Your explanation may, in the trial judge's ruling, the trial judge may wish to ensure that your explanation is brief and succinct, i.e. that it doesn't go on for several days because sometimes what happens is you get into a trial of a side issue and again you will have 12 people who won't be able to hear a lot of that stuff if the trial judge has to rule on it.
So, but Mr. Myhre is on notice that if the record is put to you in its current form you will be seeking to furnish an explanation. So we'll just leave it at that.
MR. MYHRE: And again for Mr. Fox's benefit, I'm not asking for an answer today, just something for you to consider ahead of the next date.
THE ACCUSED: I can give you an answer today. I have no opposition to the perjury and false claim of U.S. citizenship convictions being brought up at the trial.
THE COURT: So to put it in technical terms, you admit you've been convicted of perjury and what was the second offence?
THE ACCUSED: False claim of U.S. citizenship.
THE COURT: False claim of U.S. citizenship. So are there other matters on the record that you might seek to put to Mr. Fox, Mr. Myhre?
MR. MYHRE: No, Your Honour -- My Lady.
THE COURT: All right, so -- all right, so I think the Crown then can treat the perjury and false claim of U.S. citizenship convictions as admitted and Mr. Fox has put the Crown on notice that he will want to furnish an explanation for them. So that is something that the trial judge will have to balance in the mix and decide how much, if anything, the jury will hear of the explanation. And again, Mr. Fox, I am not making rulings, I'm just giving you a heads up of what will happen at trial, or what will likely happen at trial. All right?
Is that sort of the end of what we can deal with today, Mr. Myhre? Before I get to you, Mr. Fox, don't worry.
MR. MYHRE: Yes, from my perspective the only thing would be to reschedule the application date.
THE COURT: All right. Mr. Fox.
THE ACCUSED: My biggest issue at this point is with the jail making it impossible for me to prepare any kind of defence whatsoever. I've been dealing with this issue with them for the past few months and I have documentation to support it all, but essentially they're prohibiting me from receiving any DVDs or CDs in the mail which would contain video which would be evidence to support my case.
And for that reason if I can't obtain those videos I can't present them to the court or to the jury. I'm not sure how we can proceed on that, there doesn't seem to be a lot of case law in Canada.
THE COURT: Not so much, no.
THE ACCUSED: It goes with self-represented parties in custody.
THE COURT: Mm-hmm.
THE ACCUSED: There was R. v. Ryan that I read, addresses some of the issues.
THE COURT: Okay. I think I'll have a suggestion about how to deal with that. So, Mr. Myhre, the April 18th application has to be reset. So what I'm going to suggest is that on that date it's treated both as an application by the Crown to appoint counsel to cross-examine the complainant and it will be open to Mr. Fox to make application on that day for some sort of change or exception to the conditions of his custodial status.
So, Mr. Fox, you're right, with self- represented individuals it's difficult to receive things. There's -- there's reasons for that, the warden has reasons, there's security and so on and so forth.
THE ACCUSED: Right.
THE COURT: But there may well be a way to manage that. It's not a way I can do today, but it's something that should be considered on the next date. There may well be simply an order that between certain hours of the day Mr. Fox has access to a computer or something to play a video, so I throw that out there.
THE ACCUSED: Well, you see, I do have a computer to use for E-disclosure.
THE COURT: You're just not getting the things in the mail?
THE ACCUSED: Right, they say I can receive those in the mail if they come from an attorney.
THE COURT: Okay.
THE ACCUSED: But not from any of my witnesses.
THE COURT: Right.
THE ACCUSED: And I have proposed to them some solutions because I had a similar situation when I was in Arizona in custody on another case, but they were more equipped to handle that, I guess.
THE COURT: All right. So what -- what I'll say is that's an application that you should bring to the court's attention on the occasion when the Crown's application is next set. All right.
THE ACCUSED: Another significant issue that I have is the term psychological harm and psychological safety. Found lots of references to them in a lot of case law but no real definition. And I know that the -- or I believe that the prosecutor's case depends heavily on this concept of psychological harm, because obviously there is no physical harm or threats between Desiree and I, and I think that that's something that certainly would be helpful to me and I'm sure the jury would benefit from having some clear definition of what exactly that means.
THE COURT: Well, Mr. Myhre is on notice of that, but I can tell you that the very nature of harassment itself is psychological fear, harm, fear of harm, fear of going out and about on your daily business without being subjected to, you know, seeing someone that you perceive to be a threat or a harm to you. So the Crown is not required to call a psychologist to say this is psychological harm. Psychological harm is kind of inherent in -- in one of the way that harassment can be accomplished. So I can't recall the name of the leading authority for Supreme Court of Canada, I think R. v. McCraw perhaps.
THE ACCUSED: In McCraw they just make reference to, they say that psychological harm is considered the equivalent or just as relevant as physical harm.
THE COURT: Right. That's in the context of uttering threats though.
THE ACCUSED: Right, right.
THE COURT: So I don't mean to cut you off, Mr. Fox, but my difficulty is this pretrial conference was set for 15 minutes and we've gone for --
THE ACCUSED: Oh, I'm sorry.
THE COURT: No, it's not -- it's -- it's not anyone's fault, it's just that things are more complex when a person is acting for themselves, particularly with a jury trial.
THE ACCUSED: I understand.
THE COURT: So what I'm going to do is Mr. Myhre is on notice that you're a bit at sea on that concept and perhaps he can send you a -- a letter with the name of a couple of authorities that he might be relying on, or even there's a criminal jury instruction manual that has a standard instruction concerning a variety of criminal offences including harassment and I'm not requiring Mr. Myhre to send you the criminal jury instruction in that regard but if he has the ability to send you a couple of pages from the electronic version of CRIMJI explaining criminal harassment it might help you understand what the jury will have to grapple with at the end of the day. So we'll just leave it there for now.
Was there anything else pressing that you needed to address today?
THE ACCUSED: Just one more clarification.
THE COURT: Okay.
THE ACCUSED: Perhaps you might be able to take care of this. Proper administration of justice in the context of 486.3, no real definition of that term.
THE COURT: 486.3 is a highly discretionary section of the Criminal Code and the judge hearing the application has to balance the interests of justice, including your interests, in a full and fair cross-examination of the complainant with how it might look to the jury to see you cross- examining her, how she might feel being cross- examined by you.
So it's a complex mixture of factors and I don't think there's any one case that comes out with a definition. But certainly in advance of the Crown's application, I think Mr. Myhre will probably file a couple of cases for the edification of the trial judge and hopefully serve those on you in advance, or at the very least have them available to you the morning of the application when you come to Vancouver Law Courts so you can have a look through them.
I think Mr. Myhre is on notice that you're -- you need a little bit of guidance about the scope of that concept within the application.
MR. MYHRE: I will get cases to Mr. Fox ahead of the application.
THE COURT: All right. Thank you very much, Mr. Myhre. Well, I think for today's purposes we have accomplished a few things. We've got a signed admission and we have orders concerning the support person and the one-way screen.
Mr. Myhre, I'm going to leave it to you to set the -- the date for the subsequent Crown application. I'm just going to say that jury selection is set for Tuesday, May 30th, and that might seem like a long time away. It's actually not that far away and I'm wondering if another pretrial conference either before someone who is appointed to hear the trial or before another judge of this court might be helpful to make sure that when this goes to the jury the issues between the Crown and the defence are sufficiently narrowed that it's going to be manageable.
MR. MYHRE: I agree, My Lady, and so when I set the date for the Crown's application I will also set another pretrial date.
THE COURT: All right.
MR. MYHRE: And space them out so that they're at least a few weeks before that jury selection date.
THE COURT: All right. And I guess my final question is, Mr. Fox has articulated some realistic concerns about the 10-day time estimate and I'm -- I'm wondering if we should just bite the bullet and bump it up to 15 days at this point, or if we should leave that to the next pretrial conference.
Just for your information, Mr. Fox, juries are told -- the jury pool is notified about two weeks in advance of jury selection and they really need to know how long they're going to be required, realistically, so if this is not a 10- day trial, it's a 15-day trial, they need to know that early and often.
So I think I'll leave that to the two of you to think about. I'll indicate in my pretrial report that this trial is quite possibly going to take longer than 10 days and scheduling may be in contact with you, Mr. Myhre, to -- sort of for some further information on that. But I am going to let them know that likely 10 days is not enough.
Yes, Madam Registrar?
THE CLERK: So would you like me -- would you like me just to put the returnable date May 30th and then Mr. Myhre makes another --
THE COURT: Yes. So the April 18th appearance for which Mr. Fox would be required is cancelled as a result of the Passover period. Mr. Myhre will arrange subsequently for another date for the Crown's application, and on that same day Mr. Fox's application for access to video, and also Mr. Myhre will arrange for Mr. Fox's appearance through the registry at a subsequent pretrial conference.
So technically, Mr. Fox, your next appearance before this court is for jury selection on May 30th. You will be back before then.
THE ACCUSED: Right.
THE COURT: All right?
THE ACCUSED: Do you have a minute? It occurs to me the -- if I submit the application about problems with the jail on the same day as the 486.3 that creates a bit of a problem because some of the evidence that I want to use at that 486.3 hearing is audio and video of Desiree. But if I can get those before that hearing --
THE COURT: Mm-hmm.
THE ACCUSED: Unless he sends them to you. And you can send them to me.
THE COURT: Mr. Fox, I'm going to have to -- I have a family case conference that I've got to hear and I'm sorry to cut you off, just the fact is there is some progress today, but if not a lot more progress is made at the next appearance I think there's got to be some decisions made about jury selection, length of trial, and so on.
Thank you very much for your cooperation and thank you, Mr. Myhre, for your cooperation, and we will adjourn to a date to be determined.
MR. MYHRE: Thank you, My Lady.
(PROCEEDINGS ADJOURNED)
Transcriber: G. Agema