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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
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27178
Vancouver Registry
In the Supreme Court of British Columbia
(BEFORE THE HONOURABLE MADAM JUSTICE HOLMES)
Vancouver, B.C.
April 24, 2017
REGINA

v.

PATRICK HENRY FOX
PROCEEDINGS IN CHAMBERS
COPY
BAN ON PUBLICATION; INHERENT JURISDICTION
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 HOLMES)
Vancouver, B.C.
April 24, 2017
REGINA

v.

PATRICK HENRY FOX
PROCEEDINGS IN CHAMBERS
COPY
BAN ON PUBLICATION; INHERENT JURISDICTION
  • 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

INDEX

  • SUBMISSIONS RE 486.3 FOR CROWN BY MR. MYHRE:4
  • SUBMISSIONS RE 486.3 FOR ACCUSED BY PATRICK FOX:19
  • REPLY RE 486.3 FOR CROWN BY MR. MYHRE:27

EXHIBITS

  • Nil

RULINGS

  • [REASONS RE CROWN APPLICATION FOR COUNSEL TO BE APPOINTED UNDER S. 486.3(2) TO CROSS-EXAMINE THE COMPLAINANT]28
Proceedings

BAN ON PUBLICATION; INHERENT JURISDICTION


Vancouver, B.C.
April 24, 2017

THE CLERK: In the Supreme Court of British Columbia, at Vancouver, this 24th day of April, 2017, calling the matter of Her Majesty the Queen against Patrick Henry Fox, My Lady.
THE COURT: Thank you.
MR. MYHRE: My Lady, Mark Myhre for the Crown, M-y-h- r-e.
THE COURT: Thank you. And you're Mr. Fox?
THE ACCUSED: Yes, I am.
THE COURT: All right.
MR. MYHRE: Your Honour, the Crown wouldn't be opposed, with Your Ladyship's permission, to have -- and with the sheriff's consent, that Mr. Fox sit at counsel table. I can tell you that he's made a number of court appearances and --
THE COURT: Right.
MR. MYHRE: -- there have been no issues.
THE COURT: No difficulty from Mr. Sheriff's perspective. Mr. Fox, if you would like to sit --
THE ACCUSED: Thank you.
THE COURT: -- at counsel table. I understand you are representing yourself in this proceeding.
THE ACCUSED: Yes, that is true.
THE COURT: All right.
MR. MYHRE: Now, My Lady, I'm not -- I hope there is no confusion, but the Crown's intention today is to make an application under s. 486.3 of the Criminal Code to have counsel appointed to cross-examine Desiree Capuano at the trial.
THE COURT: All right. When you say confusion, are you --
MR. MYHRE: I just --
THE COURT: -- concerned that Mr. Fox may not be aware of what the application is?
MR. MYHRE: No, I just -- in discussions with Madam Clerk this morning, I understand there may have been some irregularity in how the Crown filed the materials, but --
THE COURT: I'm not aware of that. The materials -- your materials are here. I haven't --
MR. MYHRE: And I know --
THE COURT: -- received anything from Mr. Fox. I don't know whether Mr. Fox filed anything that he expects the court to have received.
THE ACCUSED: I have not filed anything.
THE COURT: All right. You are aware of the application, Mr. Fox?
THE ACCUSED: Yes, I am.
THE COURT: You understand what it involves, what the Crown is asking for?
THE ACCUSED: Yes.
THE COURT: And I understand from something I read in the file that you're opposed to the Crown -- or opposed to the order that the Crown is making --
THE ACCUSED: That is correct.
THE COURT: -- or seeking, I should say.
THE ACCUSED: That's correct, yes. I -- I should explain, perhaps, a large part of the reason that I have not filed anything is I'm having complications with the jail. They're -- they're making it very difficult to obtain evidence or to obtain photocopies, etc. And that's an ongoing issue, something that I was hoping that we might be able to address somewhat today.
THE COURT: All right. Are -- do you feel ready and equipped to respond to the Crown's application?
THE ACCUSED: Yes. Yes. My only concern, though, is I do have some documents and audio recordings that I was hoping to submit as exhibits. I've been unable, though, to obtain the photocopies for the Crown and for the court.
THE COURT: All right. When you say unable to obtain the photocopies, do you mean unable to make photocopies?
THE ACCUSED: Correct, yes.
THE COURT: But you've got the material you want to file.
THE ACCUSED: Yes.
THE COURT: All right. So it's just a question of getting it copied.
THE ACCUSED: Yes, correct.
THE COURT: And was there something else you've not been able to --
THE ACCUSED: I have a DVD containing some audio recordings that I would want to submit as exhibits as well. I'm not familiar with -- or I'm not certain what the court's procedure is for submitting that.
THE COURT: Well --
THE ACCUSED: Would I be required to make a copy of the DVD and submit that or --
THE COURT: -- it depends. What I suggest is if -- if the only issue is making copies of materials that you have here with you, what I suggest is we start, we deal with the application, we deal with your response. If there's a problem with copies or something like that, then we'll deal with it at the time.
THE ACCUSED: Okay.
THE COURT: I'm not saying that your material will necessarily be admitted. Sometimes people hope to tender evidence of video recordings that turns out to be considered not relevant in the application. But I don't know what your video recording is, and we can get to it when the time comes and make a determination.
THE ACCUSED: Okay.
THE COURT: So apart from those concerns about making copies, you feel ready to go ahead with --
THE ACCUSED: I do.
THE COURT: -- and respond to this application? All right.
And I should say I have been appointed as the trial judge on this matter. I am not 100-percent sure that I will be able to continue as the trial judge, and I was hoping that we would have a pretrial conference at some point and discuss the trial scheduling and so forth. And it was suggested to me that today, after this application, might be a good opportunity to have that type of discussion.
If there's any concern about -- if I end up not being the trial judge, if there's any concern about my making a decision on this application of the Crown's, then I should hear about it now. I suppose one possibility is I could be appointed as the case management judge up to the point of trial. Do you have any concerns, Mr. Myhre?
MR. MYHRE: I have seen one case where the judge who ruled on the 486.3 application was not the eventual trial judge, and I believe the way that they dealt with it was that the trial judge simply affirmed the order once they were appointed, to comply with the Criminal Code.
So, My Lady, the way I propose to proceed this morning, then, and I was going to suggest myself, that we deal with a few other issues once this application is heard or once we've heard as much of it as we can today, and so there are a couple things I want to bring up then just to alert Your Ladyship to. But I propose to highlight some of the things that I said in the written submission, depending -- probably look at a couple of the cases that I submitted, and then -- and then hear what Mr. Fox's response is.
I think probably in my submissions I'll be about 20 minutes right now, My Lady.
THE COURT: All right.
MR. MYHRE: And so do you have that written submission there?
THE COURT: I do.
MR. MYHRE: I see you have an open book.
THE COURT: And I assume Mr. Fox does as well.
THE ACCUSED: Yes. Yes, I do.
SUBMISSIONS RE 486.3 FOR CROWN BY MR. MYHRE:
MR. MYHRE: So of course the person that we're seeking to have counsel appointed to cross-examine is the complainant, the alleged victim in this matter, Desiree Capuano. And given that Mr. Fox is charged with criminal harassment, that order is presumptive. That means, in my submission, that Your Ladyship must issue it unless Mr. Fox can establish that he -- I don't want to -- I just want to get the exact wording. The proper administration of justice requires that he personally conduct the cross-examination.
And so Your Ladyship has the legislation there in the Crown's materials. You also have the preamble from the bill that introduced -- made this -- this appointment of counsel presumptive in these circumstances. And the point there is really both to deal with individual cases, to facilitate complainants giving their evidence, and to encourage complainants more broadly to come forward and to participate in the criminal justice system. So it has both an intention with respect to the individual in this case, Ms. Capuano, to facilitate her giving evidence, and more --
THE COURT: Can I just stop you for a minute? You've given me the preamble to the bill introducing what? Because I -- that bill is 2005. Was it a change to --
MR. MYHRE: It was with --
THE COURT: -- the section under which you're applying or was it introducing it? I have to think it must have been a change.
MR. MYHRE: It was Bill C-2 that made it presumptive when an accused is charged with criminal harassment. So prior to that, the Crown could always apply -- I don't know when the previous change to the legislation came in that allowed the Crown just to apply for any adult witness to have counsel appointed to cross-examine, but it was with Bill C-2 that that order became presumptive.
THE COURT: Bill C-2? What was the bill?
MR. MYHRE: So in the -- in the Crown's submissions, I have the exact citation under paragraph 3.
THE COURT: I'm -- I'm asking these questions because I'm trying to determine what the preamble was speaking to. And if it was Bill -- to the entirety of Bill C-2, if I remember correctly, that was a vast range of amendments.
MR. MYHRE: There were a number of things in there. And so I could take Your Ladyship to it. It's at Tab 3. And many of the changes that were brought in clearly dealt with children and facilitating the testimony of children. And the -- the first two paragraphs of the preamble deal with -- speak specifically of children, but then the third paragraph talks about children and vulnerable witnesses. And so clearly, in my submission, the inference is that Parliament's saying, "The provisions we're bringing in that deal with vulnerable witnesses have this intention," that they speak to in the third paragraph of the preamble.
THE COURT: All right. Thank you.
MR. MYHRE: And that -- that purpose is mentioned as well at the J.S. -- in the J.S. case at paragraphs 26 and 27. And the J.S. case is important in this case because it stands for the proposition, I say, that the Court of Appeal says that the wording -- this wording eliminates the requirement that the applicant establish an evidentiary basis for need. And in my submission, that's a -- that's a very important part of this legislation and the Crown's application today.
THE COURT: So where is that, please, in J. --
MR. MYHRE: So Tab 4, the J.S. case. This case dealt with having children testify from behind a screen or via CCTV. But I say the same logic applies because the exact same wording is used in both of those sections that make the order presumptive. And specifically, when I say it eliminates the requirement that the applicant establish an evidentiary basis, I'm referring to paragraph 19. And Justice Smith says:
The provision eliminates the requirement that an applicant establish an evidentiary basis for need ...
And this is the last sentence in the paragraph.
... mandates the court to grant such an application unless to do so would interfere with the proper administration of justice.
And, My Lady, you can see the legislation they were dealing with in that case is set out at paragraph 18, and it's s. 486.2(1), that required the court to make the order that the witness testify outside the courtroom or behind a screen unless the judge or justice is of the opinion the order would interfere with the proper administration of justice.
So in this case the wording -- Your Ladyship shall make the order unless you are of the opinion that proper administration of justice requires Mr. Fox to personally conduct the cross-examination. So what does that mean? And Mr. Fox, at the pretrial conference, was asking for clarification of what is the -- what is "the proper administration of justice" referring to. And that term, as far as my research has shown, is not been really clearly spelled out as it relates to these applications. Probably the most serious look at it, and it's not -- Justice Smart doesn't really get into it but he does address it in the S.B.T. case at Tab 5.
And S.B.T. dealt with a different issue. And, My Lady, please stop me if -- I'll tell you just a little bit about the case so you know how to situate this, but please stop me if I'm just saying things that aren't helpful.
S.B.T. was an application by -- it was -- it was an application to review an order made at Provincial Court. The Crown had made an application to allow two child witnesses to testify outside the courtroom. And the judge hearing the application said, "Well, it's up to me to decide whether it's outside the courtroom or behind a screen, and our screens work really well, so I'm going to order the screen." And the Crown sought a review of that decision and Judge Smart overturned it and said, "No, that -- that -- the legislation gives that discretion to the Crown to decide what they're asking for, whether it's CCTV or -- or testimony behind a screen."
Now, in the course of doing it, or looking at the application, Judge Smart does consider the proper administration of justice at paragraph 40. That's at page 11. So he says:
The phrase "the proper administration of justice" is a phrase of wide import. In the context on this subsection it may include many factors and considerations ... the judge ... will likely consider the age of the witness, the nature of the charges, the relationship between the witness and the accused ...
And there he's referring to -- Your Ladyship will have seen that in s. 486.3, and it's similar in 486.2, sub (3) of that section -- and it might assist, maybe, if I could ask Your Ladyship to open your Criminal Code just to s. 486.3. And sub (4) says:
In determining whether to make an order under subsection (3), the judge or justice shall consider ...
A list of factors. And you can see Judge Smart, in paragraph 40 of S.B.T., is referring to some of those factors.
Now, in my submission, it's a difficult question, the extent to which Your Ladyship actually takes into consideration these factors, because on the one hand J.S. says it's presumptive, the Crown need not establish an evidentiary basis, but on the other hand it would seem, and Judge Smart seems to be saying, that the proper administration of justice requires not just a consideration of, in this case, Mr. Fox's right to challenge the witness, but also a consideration of the vulnerability of Ms. Capuano, including some of the factors that are set out here.
And I have to confess, My Lady, I'm not exactly sure how Your Ladyship should walk that line, because on the one hand J.S. says you don't need any evidence, on the other hand Judge Smart says that when you look at the proper administration of justice, you actually do look at some of these factors. Well, that's, to some extent, evidence.
And I'm going to touch on that a little bit more in a second, but I thought it might be instructive to consider how some of the few cases that I was able to find that look at this -- that were challenges to s. 486.3, what the challenges were, what the objections were to that order issuing, and how the courts dealt with them. And you'll see that several of them actually do take into account different characteristics of the complainant.
Did Your Ladyship have a chance to -- I'm -- just to decide how much to go through the facts, did you have a chance to read these four cases that are listed?
THE COURT: Not really.
MR. MYHRE: Okay. So I'll spend a little bit more time on them. If I could take you to Tab 6, the D.P.G. case.
THE COURT: I had a quick look at them but I haven't read them start to finish.
MR. MYHRE: I have to say, My Lady, these -- it's not clear to me to what extent these applications are thoroughly argued at the Provincial Court. I mean, I can tell you that at Provincial Court I've never argued one, and it's not clear to me from these cases -- some of them are clearly in-depth considerations, and I just ask Your Ladyship to take that into account when you decide how much weight to put on the reasoning.
In any event, the earliest case I was able to find, D.P.G., in the first paragraph there you can see [as read in]:
The accused was charged with making available child pornography and voyeurism, and several witnesses for the Crown were between nine or 10 and 15 years of age.
So it dealt with -- this was -- these were children, and the Crown was applying to have counsel appointed to cross-examine them. And at paragraph 3 [as read in]:
The accused opposed the motion because his past experience with lawyers left him without any confidence that the questions he wishes to ask will be put to them. He cites examples of prior trials where he was unable to communicate with counsel in the courtroom, even to the point of being prohibited from passing notes.
Paragraph 5, you can see the court states what I've already been submitting and what I say follows -- or is the ratio of the J.S. case, or part of it is decided by J.S. [as read in]:
Once the Crown ...
The last sentence in paragraph 5:
Once the Crown makes the application, the presumption arises and the accused must satisfy the court that the proper administration of justice requires the accused to conduct the cross-examination personally.
And then at paragraph 6:
The court finds that he will be able to instruct counsel about the areas he wishes explored with the witnesses. Even though he has had no problem with communicating with them outside of court prior to this, this is a different environment for them.
And those are really the salient parts of D.P.G. So here, not a case that's really looked at -- at any cases; a fairly brief decision.
I will say that none of these cases -- in none of these cases was the accused allowed to personally cross-examine the witnesses.
C.M., the next case at Tab 7. So I believe C.M. was a youth. He was charged with second degree murder, and he initially consented to have counsel appointed to cross-examine another child witness. But then after that witness testified in direct, C.M. said, "No, no, I want to cross- examine him myself." And there are some fairly glaring facts here that certainly aren't present -- well, I shouldn't say that. There are some glaring facts that rendered the order quite necessary. But at paragraph 12, you can see the reason the accused was applying is he said he didn't trust Mr. Anderson or any members of the bar to conduct the cross-examination.
Now, there was some history of intimidation between the accused and the witness. You can see at paragraph 20 it talks about how they threatened him -- the accused and another had threatened him with harm if he talked to the police, and that another person at that point had held a gun to the witness and threatened him.
Over at page 6, at paragraph 28, the court just reiterates what the accused said in the voir dire into 486.3 application.
[The accused] explained why he had no confidence in the Amicus --
The court's referring to this counsel as amicus, but that's just this court's wording.
-- to adequately cross-examine on his behalf and why he did not trust any member of the bar to do that.
Now, down to paragraph 30, and this is consistent throughout all the decisions:
The onus is on the Crown to satisfy me that the presumption ... applies and then the onus is on the accused to satisfy me that the proper administration of justice requires that the presumption should not apply.
And here there is some consideration of what the right to cross-examine means, down at paragraph 33. Clearly it's an integral part of the trial process. Cross-examination, that is.
It is of fundamental importance. It is a right not only to frame questions, but also to phrase and express them in the manner of the examiner's choice. The way in which a question is asked is sometimes as important as its contents.
This provision for appointing counsel to cross-examine trumps that right for the limited purpose of this cross-examination.
Over at paragraph 36, the court concludes that the standard on the accused in establishing that he should personally cross-examine should be on a balance of probabilities. That's the second- last sentence at paragraph 36.
I should say this is the only court I see that actually addresses a standard of proof. The other cases the court just seems to consider whether they're satisfied that the proper administration of justice requires it. In my submission, that's not a -- that's not a really important point. It's -- it's whether or not Your Ladyship is satisfied.
So down at paragraph 40, the court notes that the accused in this case was:
... careful, capable, respectful cross examiner. This [sic] witness is not especially young or under a disability or ... disadvantage over other young people ...
And there, of course, the court had heard -- had the benefit of hearing that witness already in direct examination. But:
The relationship --
At paragraph 42,
-- between the accused and the witness is one of power. The accused exercised power over the young person and intimidated him.
And it was really -- you know, at paragraph 45 the court bluntly states:
This young witness was threatened at gun point.
And so has no problem granting the order.
THE COURT: Can I take you back to the factors in subsection (4)?
MR. MYHRE: Yes.
THE COURT: I may have missed this when you took me to these before when you were discussing Mr. Justice Smart's case, S.B.T., but the application is not under subsection (3) so, strictly speaking -- and I think you said this, strictly speaking, the factors seem to apply -- are stated to apply only to subsection (3) applications. And so one could construe the provision as a whole, 486.3, as not including those factors [indiscernible/coughing] when the application is under subsection (2), as this one is. Am I reading that in the way you suggested it to be read?
MR. MYHRE: Yes, entirely, and that's why I'm saying S.B.T. seems a little incongruous. Because on the one hand Judge Smart was considering the actual facts of the case, evidence, and J.S. at the same time is saying there's no need for an evidentiary foundation.
THE COURT: All right. Thank you.
MR. MYHRE: And you see -- and, I mean, this -- the most recent case we just looked at, the court is considering the evidence, the history of the relationship between the witness and the accused. Clearly seems to be a factor in their determination. And there's a tension, because on the one hand considering evidence and then requiring evidence to inform what the proper administration of justice requires on the one hand can work to subvert the intent of that section, which is clearly to be presumptive and -- and that would seem contrary to the ruling in J.S. On the other hand, the -- the proper administration of justice is a very broad consideration.
And so it seems to me that the right answer, My Lady, is that J.S. is the law. The vulnerability of the complainant in this kind of case is presumed because the order is presumptive. And -- and at the end of the day, the position the Crown takes here is that Your Ladyship shouldn't get into the actual specifics of this case when you're deciding whether Mr. Fox -- whether the proper administration of justice requires that he personally cross-examine Ms. Capuano.
I'll take you next to Tab 8 and the Fazekas case, another example. Now, this -- this one is a criminal harassment case, which the Crown applied to have counsel appointed. At paragraph 5, again what's consistent in all the cases:
The accused has the onus of rebutting this presumption by demonstrating that the proper administration of justice requires him or her to personally cross-examine the complainant.
And then down at paragraph 7, the basis for the opposition of Mr. Fazekas. In the second line he said:
... he knows her well and could get her to admit certain facts under oath that no lawyer could. Furthermore, Mr. Fazekas is concerned that the jury will draw an adverse inference if he conducts his own defence, except for the cross-examination of the complainant ...
The court does go through quite a bit of case law, including J.S. But at paragraph 22, ultimately concludes that the accused had not satisfied the court that the proper administration of justice required personal cross-examination of the complainant. The court cites particularly:
His conduct in this matter to date, although polite and civil, demonstrates that he has difficulty staying focused. He has a tendency to get excited. No good can come from allowing him to confront the complainant personally.
My Lady, to be fair to Mr. Fox, I have seen nothing that would suggest that in this case, and the Crown isn't relying on any -- anything like this for the -- as the basis for its application.
The last example, the Jones case at Tab 9. Here, the Crown applied to have counsel appointed to cross-examine two very young witnesses. It was an assault charge against -- in a domestic context. Assault both against the former partner and against one of the very young children. You can see in the headnote they were -- the two child witnesses were daughters of the accused, age three and six years old. And so the -- this decision deals both with the presumptive application for the children and the -- the discretionary application with respect to the complainant.
So at paragraph 9, again what's reiterated in all the cases:
As can be seen from the language of section 486.3(1), there is a presumption that a lawyer will be appointed where the witnesses are under 18 unless [the accused] is able to satisfy me that the proper administration of justice requires that he conduct the cross- examinations personally.
And this court flips the issue around or tries to state it in another way at paragraph 10:
... [Mr. Jones] must show me why his personal conduct of the cross-examination of his very young daughter and step-daughter is required for the proper administration of justice. I can put the issue this way: How will a disservice be done to the proper administration of justice if a lawyer on behalf of [Mr. Jones] conducts the cross- examination of the girls rather than [Mr. Jones] himself?
And in my submission, that is the correct way to look at it. That is what Mr. Fox has to establish here. And I think we can be more specific about -- than saying what -- how will a disservice be done, and that's what I get into in the rest of my submission.
So those -- just see if there's anything else I thought was relevant to this case.
Well, at paragraph 30, this was another accused who --
... he described himself as being able to understand [his three-year-old daughter] better than anyone, even [the complainant].
And:
He said that he knows [the older daughter] better than anyone, even her mother ...
Now, this was a case where the Crown had called the lead investigator to talk about how vulnerable these witnesses were, and so the court says, at paragraph 33 at the top of page 7:
The Crown has presented a persuasive case that the girls have been traumatized by whatever they have experienced in the home ...
Etc., etc. And then grants the application.
At paragraph 42, the court -- this is -- so the court concludes that that order should go at paragraph 35, and then goes on to consider the application with respect to the adult. There are some relevant comments at paragraph 44, and maybe I'll just let Your Ladyship read that over rather than reading it myself.
THE COURT: Thank you.
MR. MYHRE: So in my written submission, I've tried to be a little bit more specific about what we're talking about, the proper administration of justice, in the context of this kind of application. And my submission is -- I mean, obviously we're talking about cross-examination of the complainant, and so that's where the focus should be. So what -- what is -- what are the rights that surround cross-examination of a witness in a criminal case? Well, that's dealt with in the Little [phonetic] case, which really affirms the right of a robust challenge to a witness's credibility as being essential to the court process of seeking the truth.
The Faulkner case helps to put into context the parameters of what self-appointed counsel is, the nature of their relationship with the accused once they're appointed. And Justice Code -- this is -- this was -- as you may have seen, it's an 11(b) application, and a case -- obviously a case that went on and on for some time. But counsel was appointed to cross-examine and the accused purported to have the right to review all of counsel's questions and specifically sign off on them.
And so Justice Code, in analyzing what took so long in this case, spent some time explaining why the accused was mistaken when he believed that he had the right to very specifically direct appointed counsel as to the questions that were to be asked. And Justice Code, over the course of about 12 paragraphs in that judgment, essentially concludes that appointed counsel has the same relationship with an accused as -- as retained counsel in any other case. They have the same ethical obligations, they're bound by the same solicitor-client relationship, and so they are expected to do everything retained counsel would. Meet with the accused, understand the defence theory of the case, thoroughly review all of the disclosure and, on the basis of that, conduct a cross-examination in the way they determine best appropriate but obviously on the instructions as to the defence theory given from -- by the accused.
So at paragraph 9 of my written submission --
THE COURT: So where do we have that case?
MR. MYHRE: Oh, the Faulkner case?
THE COURT: The discussion that you've just referred to.
MR. MYHRE: Yes. Tab 11, and it starts at paragraph 35 and goes to paragraph 47. So Justice Code does spend some time on it.
THE COURT: All right. Thank you.
MR. MYHRE: So, My Lady, it seems to me to follow that if the relationship between the accused and court- appointed counsel is the same solicitor-client relationship that every accused has when they retain counsel, either using legal aid or privately, there is no way, based on this section, that an accused can say, "There's something about this case, my particular situation, the facts of this case, that make it impossible for court- appointed counsel to effectively represent me." Counsel appear in all sorts of cases, the most complex, so an accused can't say, "Well, this case is just too complex." Well, then, how do lawyers in very complex cases deal with cross-examination of witnesses?
It seemed to me, as I reflected on it, that the only way that an accused could establish that the proper administration of justice, that is that their ability to make full answer and defence requires them to personally cross-examine the complainant, would be if there were some external factors relating to how counsel was appointed. For example, if in a jurisdiction there were not counsel available for enough time to adequately prepare for the case, or if the funding was only available so that -- to give them one day of preparation time when the case clearly required two weeks of preparation time. Something logistical in the nature of being unable to bring counsel to the particular case. I just can't imagine how any particular case could require a personal cross-examination unless there was some deficiency with the way the lawyers were being appointed or their availability.
My experience with these orders and having counsel appointed, I -- once the order is made, I get in contact with the Legal Services Branch, they get in contact with the Legal Services Society, they then source counsel. Counsel usually contacts me to talk about disclosure, and then meets with the accused the same way that any other lawyer would to prepare their cross- examination. So I'm aware of no logistical impediment, and we are still two months before trial. I've talked to the Legal Services Branch. They say, "That's no problem, we'll find counsel." And so I just -- my submission is, absent some logistical difficulty like that, there's no way any accused under this section can say that, "There's something about this particular case that requires me to personally cross-examine the complainant."
I do want to just let Your Ladyship know a couple things about the history of this file that may bear in some small way on this application.
As I said when we discussed the Fazekas case, in my dealings with Mr. Fox, he is organized, he's intelligent to the point of doing his own case law research, and he's polite. This application is not made on that basis. I do not plan, unless Your Ladyship requires me to after hearing from Mr. Fox, to get into why I say this complainant is vulnerable and exactly the kind of witness for whom counsel should be appointed because, in my submission, as I said, that would defeat the purposes of this legislation.
Mr. Fox has been at times represented by counsel in this matter. He was represented by counsel at his initial bail hearing, he conducted his second bail hearing on his own. He did not oppose an order for counsel to be appointed to cross-examine the complainant at the preliminary inquiry. And my understanding is that he actually fully retained that -- once counsel was appointed, I could be wrong but he appeared to represent Mr. Fox for the entire prelim not just for the cross- examination. My understanding was that he -- Mr. Fox actually retained him.
So he was represented at the preliminary inquiry but the complainant didn't testify because the Crown made an application under s. 540(7) to tender her statement, which the court granted. Mr. Fox applied to cross-examine her, or his counsel did, and that application was denied under s. 540(9). And then at this stage now, of course Mr. Fox is unrepresented. So he has at times been represented by counsel in this matter.
My Lady, those are my submissions. I hope -- I hope the Crown position is clear on this application.
THE COURT: Yes.
MR. MYHRE: The reason I'm not -- this is probably obvious, but I'm not getting into the specifics of this case both because I don't have to and because I don't want to spend the court's time doing something that I say is actually irrelevant to the legislation. But I don't know the basis exactly -- I have some idea of why Mr. Fox opposes this. We were speaking in cells before court today. But I don't want to respond to what he's going to say until he actually says it so I can hear in full why he's opposed to this order. But I do ask for that opportunity, if necessary, to present evidence. It would likely just be in the form of statements and submissions, if necessary.
THE COURT: All right. Thank you.
Now, Mr. Fox, you have a response you want to make today, I understand.
THE ACCUSED: Yes.
THE COURT: We started late, but Madam Registrar has had a long morning. She had another matter this morning. So I think we will take the morning break now, which is the usual time that we take it. So we'll break for 15 minutes and then when we come back you can make your submission, Mr. Fox.
THE ACCUSED: Okay.
(PROCEEDINGS ADJOURNED FOR MORNING RECESS)
(PROCEEDINGS RECONVENED)
THE COURT: Mr. Fox. If you'd like to use the lectern there, if that makes things easier, feel free to do that.
SUBMISSIONS RE 486.3 FOR ACCUSED BY PATRICK FOX:
THE ACCUSED: Thank you.
The first point that I would like to address, Your Honour, is that with respect to s. 486.3 it's my understanding that Parliament's intention with that was to protect the so-called vulnerable witnesses and certainly not to protect or to facilitate the abuse of the system or the abuse of statutes such as criminal harassment by people who were pursuing some ulterior motive, which I strongly believe is entirely what Ms. Capuano is doing in this -- in this case. And I believe that that can be demonstrated from the most recent RCMP interview that she had conducted, which I would ask that we can play some excerpts for the court.
THE COURT: Of what?
THE ACCUSED: Oh, of some of the interview, the statement I believe they call it, of Ms. Capuano being interviewed by the RCMP where some of the issues that, in the previous interviews and when she went onto the news media, she was very somber about them. In this interview, though, she's laughing and making jokes about them, which I believe strongly demonstrates that there is no sincerity to her claims of fear for her safety and that I think it is unreasonable to consider her a vulnerable witness.
THE COURT: Right. Let me just think for a moment about what you're suggesting. If I have it correctly, you're saying that because she laughed and made jokes in her police interview, she's not serious in her approach to being a witness in this case?
THE ACCUSED: What I would say is that it's my position that she's not serious about her claims of being afraid for her safety or about any claims of psychological damage or psychological harm that she has apparently or that she claims that she has experienced as a result of my conduct, which is, of course, the crux of the Crown's case.
THE COURT: All right.
THE ACCUSED: See --
THE COURT: That, it appears to me, is something that the trier of fact, and you've elected trial by jury --
THE ACCUSED: Yes.
THE COURT: -- will have to determine in the trial.
THE ACCUSED: For -- I agree certainly for the purposes of determining innocence or guilt on the charge. But if we're trying to determine whether or not she can be considered a vulnerable witness, as intended by Parliament when they enacted s. 486.3, that's where I think that this might be certainly relevant.
THE COURT: I'm not persuaded.
THE ACCUSED: Okay.
THE COURT: I'll tell you why. Because we, as courts, are very cautious about in any way pre-empting the jury's role when there's to be a trial by jury. So there are often situations where, for example -- let's take things the other way around. The Crown might be trying to prevent the defence from putting a certain type of defence before the jury, saying there simply isn't enough evidence to support it, we'd be inviting the jury to speculate, you shouldn't allow that defence to go before the jury. And the courts will typically say if there's an air of reality to the defence, it should go before the jury, the jury makes that decision.
If I were to watch your video and say, "Hmm, yes, it looks to me as though she's not very serious in her stated fears for her safety," I would essentially be making a decision that ultimately the jury is going to be asked to make I this case, and it's simply not appropriate that I do that at this stage.
THE ACCUSED: Okay.
THE COURT: So unless there's another basis for showing that video, I cannot see how it would be relevant.
THE ACCUSED: No. No, Your Honour. There was just that.
Now, I do have another group of or set of concerns that directly relates to the s. 486.3 application. And as Mr. Myhre had mentioned, throughout this proceeding or throughout the course of these proceedings I had at two points been represented by counsel, and my experience with the three attorneys that I dealt with have left me very little confidence not in the abilities but in the -- what the attorneys' goals or intentions might have been. Specifically -- I have specific examples I can provide that might give some idea of why I would be concerned.
Initially at the bail hearing, the first bail hearing, I was represented by David Hopkins, and I brought to his attention some very critical issues. For example, I was charged with s. 103, which, when charged with that, the presumption is that a person should not be entitled to bail unless they can convince the court of otherwise.
THE COURT: S. 103 --
THE ACCUSED: Oh, sorry.
THE COURT: -- is what?
THE ACCUSED: Unlawful exportation of firearms, knowing it to be unlawful.
THE COURT: All right.
THE ACCUSED: And there was no question that I had exported my firearms to the United States. I had -- I had told Mr. Hopkins that there's an exemption for the United States, that no authorization is required. He refused at the bail hearing, though, to bring that point up. Eventually, when I started representing myself, I brought this to Mr. Myhre's attention and that charge was stayed.
Also, at the bail hearing Mr. Hopkins refused to challenge any of the points that the Crown was making, much of which was based on a particular blog post on the website that I believe the statements were being taken very much out of context. And given the appropriate context, I think that the judge at that time would have realized that there wasn't any threatening behaviour or conduct or statements being made. In fact, at the second bail hearing where I was representing myself, the Crown had presented the same arguments about the same blog post and it was determined by the court that there wasn't any threat -- anything threatening there, so that was not the basis of denying me bail when I was later representing myself.
And then we skip ahead to the preliminary inquiry. I was represented by Mr. Clint Bauman at that. And I was actually -- I was actually being represented by Mr. Mark Swartz but he wasn't available for the date of the preliminary inquiry and so he had referred me to Mr. Bauman.
Now, the first time I had spoken to Mr. Bauman over the telephone from the jail, he had already spoken, I understand, with the Crown and had a bit of familiarity with the case, and he was putting a lot of effort into trying to convince me that there were some recent cases that would support the Crown's position. When I pressed him, he admitted to me the cases that he was thinking of were R. v. Elliott [phonetic] from Toronto and R. v. Kelly [phonetic] from Alberta. I disagreed with him on that. He suggested I should read the cases again. I did. And after that he never brought them up again because he realized I was correct on that. At the preliminary inquiry, he agreed with me about my position on the case, yet didn't bring up any of those arguments.
Another serious -- what I thought was a serious issue was I insisted that he not concede to the s. 93 charge, which is the possession of a firearm in a place not authorized. He disregarded that completely and conceded to -- or agreed not to challenge that at the preliminary inquiry.
So having had those types of experiences with the attorneys in this case so far, I have a serious concern that if counsel is appointed they are going to refuse to pursue topics or lines of questioning that I would consider to be critical. One area of concern I have, and the judge had brought it up at the previous hearing, is a potential Browne v. Dunn issue that might arise, because if counsel is appointed, since I would have no confidence in them not sharing information with the Crown, I would want to withhold certain evidence until I actually testify.
A lot of that evidence is going to prove that Ms. Capuano is -- is lying. And I think it would be much more appropriate to confront her with that evidence while she's on the witness stand rather than questioning her about it at that time and then providing the evidence later when I testify. And that's assuming that appointed counsel would even actually question her about that. Because if he doesn't, then that raises the possible Browne v. Dunn issue.
THE COURT: I think I need you to go through that again.
THE ACCUSED: Sure. Sorry.
THE COURT: Your concerned that if you have counsel appointed on your behalf, you'll run into a Browne v. Dunn problem. Is that what you're saying?
THE ACCUSED: Potentially, yes.
THE COURT: And explain to me why that would come up if counsel's appointed on your behalf but wouldn't come up if you were conducting the cross- examination yourself.
THE ACCUSED: If I were conducting the cross- examination myself, then I would confront Ms. Capuano with the evidence that I have, which would refute her statements, which would prove essentially that she is lying about the majority of her claims. If I'm appointed by counsel on the other hand, since I have no confidence or faith that counsel is not working against my interests, I would want to withhold the disclosure of that evidence until I actually testify, which would be, of course, after Ms. Capuano is finished testifying. That would require, then, that the appointed counsel would have to at least cross- examine her on these alternate theories.
THE COURT: Now, I don't understand why, if there were to be counsel appointed on your behalf, you -- I do understand that you've -- you say you've had experience with previous counsel in which they have not taken the steps you wanted to take or not brought to the court the analysis -- the legal reasoning that you wanted put forward. But I haven't heard anything about why you wouldn't tell counsel about evidence you could give and expect to be given -- giving.
THE ACCUSED: I would inform counsel of the evidence, but what I would not do is provide him the actual evidence or copies of the actual evidence. That I intend to withhold until -- until I testify, unless, of course, I was cross-examining Ms. Capuano personally, in which case I would confront her with the evidence on the witness stand. It's a strategic decision. I just -- I don't want the Crown to have knowledge of that evidence until it's actually presented.
THE COURT: And what makes you think the Crown would have knowledge of it? Oh, you're thinking in the cross-examination.
THE ACCUSED: Well, no, no. No, no, based on my experience with the attorneys so far, I believe that if I'm appointed counsel, there's a good probability that if I provide the evidence, the documentary or the audio/video evidence, to that attorney, that he may provide a copy of it to the Crown ahead of time. I know that that would be --
THE COURT: Generally --
THE ACCUSED: -- inappropriate but --
THE COURT: -- disclosure goes -- well, it is required to go from the Crown to the defence.
THE ACCUSED: Yes.
THE COURT: It's -- there's no requirement that the defence make disclosure to the Crown, except in very limited circumstances, for instance there has to be notice of any expert witnesses that are going to be called for the defence. But there's no general rule that the defence has to make disclosure to the Crown. There's nothing parallel to the Crown's obligation of disclosure.
THE ACCUSED: I'm sorry, maybe I -- I should clarify a bit. What I believe would happen would be some level of misconduct perhaps, that the attorney would not be acting in my best interests of what I believe are my best interests. And again, this is based on my experiences with these three other attorneys since I've been working on this, plus the unfortunate reality that this case has drawn so much media attention in February and March of last year. According to what CBC says, anyway, the B.C. Ministry of Justice and the Canadian government have received a lot of criticism about not taking Ms. Capuano's claims more seriously when they originally dismissed these charges.
I do also, though, want to state for the record, I certainly don't believe that I would be more competent or more skilled at cross-examining Ms. Capuano. It's got nothing at all to do with -- with that. I mean, it's not about ego or -- or pride at all, it's purely because I don't have confidence that whatever attorney would be appointed -- I shouldn't say I don't have confidence in whatever attorney. I believe that there's a high probability that whatever attorney would be appointed may not act in my interests and may do things, for lack of a better term, to sabotage the cross-examination. Yeah.
THE COURT: All right.
THE ACCUSED: May I ask a question?
THE COURT: You can try.
THE ACCUSED: If during the cross-examination -- if counsel is appointed and during the cross- examination I suspect that counsel is refusing or failing to pursue a line of questioning that might relate to evidence I intend to raise later, thereby possibly raising a Browne v. Dunn issue, would it be acceptable in court to express that concern to the court? I mean, certainly that might not look good in front of the jury.
THE COURT: Well, at some point, not right now but at some point I plan to have a much more detailed discussion with you and with Mr. Myhre about how a jury trial is conducted so that you can start thinking about, and perhaps -- I'm sure you've done this already, but just to make sure that you understand what's going to be expected of you in conducting your own defence.
But, yes, I can answer that question now, at least I can begin to answer -- answer it. Generally in a jury trial, if there are concerns about the way the proceedings are being conducted, and they can be a great range of concerns, I'll give you some examples in a minute, generally what one does is either immediately or at the next appropriate break, so that you're not making a fuss in front of the jury that might send the wrong message, you wait till the jury's left the courtroom and then you raise the issue with the judge and opposing counsel present, and we discuss what the concern is and settle on a resolution. And often the jury will be completely unaware that that discussion has taken place. It may be that they'll have to be told something as a result of the discussion, and sometimes they don't need to be told anything.
And it -- the kinds of things that can come up are all sorts of things. Counsel could take the position that the other party is raising their voice too much, I'm sure this isn't going to be the case for you, or trying to intimidate witnesses by standing too close to them, or that there are spectators in the gallery who are making faces at the jurors, or there can be all sorts of things.
And my short answer is, yes, we -- if those problems come up, we address them, but we generally make sure the jury's out of the room while we discuss them.
THE ACCUSED: Okay.
THE COURT: Now, the one example you've outlined is a little different because it would be a problem you're raising about your own relationship with the lawyer who, if the order is made, had been appointed to represent you. There's a difficulty for that being discussed in a public way because your relationship with the lawyer representing you is a private thing that you may not want and should be very, very cautious about revealing to Mr. Myhre or to me.
But probably the first thing I would do in that type of situation, if you raised a concern, was suggest that we all stand down and you have a chance to talk privately to the lawyer. And it might be that after that discussion the issue would be ironed out and we could start up again. If the issue wasn't ironed out, then I would probably hear from the lawyer, who would tell me what the problem is seen to be and who would probably do that in a way that would not disclose the particular issue that you were concerned about so as to protect the secrecy of your own discussions with that lawyer.
Mr. Myhre is there anything I should add to the response I've given Mr. Fox?
MR. MYHRE: Not from my point of view.
THE COURT: Does that answer your question, Mr. Fox?
THE ACCUSED: Yes. Yes, it does.
THE COURT: All right. Anything else?
THE ACCUSED: That would be all for me.
REPLY RE 486.3 FOR CROWN BY MR. MYHRE:
MR. MYHRE: Just a couple things in reply, My Lady. Three points.
First of all, while acknowledging that Mr. Fox's previous experience with counsel in this matter is unfortunate, particularly if they didn't follow explicit instructions as he said he gave, nevertheless they don't nearly, in my submission, rise to the level of disclosing protected solicitor-client discussions to Crown counsel. That is a degree of misconduct that is absolutely egregious.
Which leads me to my second point, which is that, I think to state the obvious, this entire legal system depends on -- heavily on counsel fulfilling their ethical obligations. That, at an extremely basic level, means, for defence counsel, not disclosing their client's defence until they have to, unless there's some strategic advantage to their client. And of course counsel can be depended on to fulfil that obligation. I mean, if it needed to be said, I would think that would be grounds for at least suspension, if not possible disbarment, if -- if a defence lawyer engaged in that kind of misconduct. This court can depend on counsel not to do that, even if because of his dissatisfaction to this point has led Mr. Fox to conclude that he can't.
The third point is that lack of trust in counsel did come up in two of the cases that we looked at and was not a sufficient basis for denying the order.
Subject to any questions, those are -- that's my response.
THE COURT: All right. Anything further from you, Mr. Fox?
THE ACCUSED: No.
THE COURT: Thank you. I think what I'd like to do is just take a little while longer to reflect on the submissions you've each made, look at the materials a bit more closely, the cases I've been given, and I expect I will be able to give you a decision at two o'clock.
Would it be suitable to then go on and have a pretrial conference in which we discuss the plan for the trial, time estimates, that sort of thing, and make sure that we've got enough time scheduled and that, Mr. Fox, you are starting the process of preparing? It looks to me that you are, but I -- I'd like to hear it from you and talk about ways in which you may need assistance or may need some additional resources to help you prepare.
THE ACCUSED: Certainly, yes. Thank you.
THE COURT: All right. So let's do that. I expect I'll be in a position to give you judgment at 2:00. It won't be a long one, so we can then go on after that to embark on a pretrial conference.
(PROCEEDINGS ADJOURNED FOR NOON RECESS)
(PROCEEDINGS RECONVENED)

[REASONS RE CROWN APPLICATION FOR COUNSEL TO BE APPOINTED UNDER S. 486.3(2) TO CROSS- EXAMINE THE COMPLAINANT]
MR. MYHRE: So, My Lady, I have written out a list of issues that I think it might be worth at least canvassing.
THE COURT: All right. Are you ready to proceed, then, Mr. Fox? We'll essentially start a pretrial conference at this point.
THE ACCUSED: Yes.
THE COURT: All right.
MR. MYHRE: My Lady, I thought I might just talk about the orders that have been made and the things that have been accomplished to date. We did have a fairly lengthy pretrial conference -- two fairly lengthy pretrial conferences, the first in front of Justice Silverman when we set the trial dates, and the second in front of Justice Duncan about three weeks ago.
And so what's been accomplished to date is that we have orders for a screen for Ms. Capuano and a support person to sit next to her. Those are on file. Mr. Fox has agreed to an admission about the nature of the firearms that he -- the Crown says he shipped to California. So he's -- he's signed an admission that essentially admits that they are restricted firearms. But I see Mr. Fox maybe --
THE ACCUSED: Oh, I --
MR. MYHRE: -- would like to add to that.
THE ACCUSED: -- I didn't admit to them being shipped to California.
MR. MYHRE: No, that's --
THE ACCUSED: Okay.
MR. MYHRE: Yeah. Just the nature of the firearms that the ATF agents found in California.
He has, prior to the preliminary inquiry, been given notice of firearms affidavits that the Crown is tendering. So I have already told him in a letter that we -- that I rely on that notice for the purposes of trial as well for tendering those affidavits.
In front of Justice Silverman there was a fairly --
THE COURT: Just before you go on, it might be helpful one by one with these things. Mr. Fox, if you have any dispute with what Mr. Myhre is saying or if you're not understanding the significance of what he's saying, just let me know and we'll deal with those things.
Do you understand what Mr. Myhre means by firearms affidavits and what the Crown is intending to rely on?
THE ACCUSED: Yes, I do.
THE COURT: All right. Thank you.
MR. MYHRE: In front of Justice Silverman, Mr. Fox and I and Justice Silverman all canvassed the voluntariness of Mr. Fox's statement to police in the summer of 2016. Mr. Fox indicated that he understood what voluntariness meant and was not contesting the voluntariness of that statement.
THE ACCUSED: That is correct, I don't contest that.
THE COURT: Now, one thing I should point out to you, Mr. Fox, is that voluntariness is something the Crown has to prove unless you are admitting it. It's not one of these applications like a Charter application where you would have a burden of proof. The burden of proof is on the Crown, beyond a reasonable doubt, to prove that any statement it says you made to a person in authority was made voluntarily.
All right. So unless you are confident that you can agree that there's no question, beyond a reasonable doubt, that you spoke voluntarily, you should be not making this admission and we would have a voir dire on it. I may have phrased that in a slightly confusing way.
THE ACCUSED: No, no. No. I completely understand what you're -- what you're saying. I would say that the statements were completely voluntary and I think it would be an ineffective use of the court's time to expect the Crown to have to prove that.
THE COURT: Well, that's not the test. The test is -- without an admission, the test is, in a voir dire, whether the Crown has proven beyond a reasonable doubt that the statement is voluntary, and your rights as an accused person are not a question of good use of court time. There comes a point where, obviously, we take that into consideration, but on a very fundamental point about whether your statement was voluntary you shouldn't be making a decision based on a good use of court time. All right?
If you are completely satisfied that your statements were voluntary and you're willing to agree that they were and relieve the Crown of the obligation of proving that they were, I'll accept that, but I want to make sure that you understand what you're doing and that you understand that if you don't make this agreement, the Crown faces a high standard of proof on this point.
THE ACCUSED: Thank you. I do understand and I agree that the statements were voluntary. Thank you.
THE COURT: Thank you.
MR. MYHRE: The last thing that has been discussed and settled, obviously, is the trial time estimate. So --
THE COURT: The trial ...?
MR. MYHRE: Time estimate. When we were in front of Justice Silverman prior to setting the dates, Mr. Fox and I had a discussion in cells. We went through the witness list, we talked about how much time would be required for each witness, in particular the cross-examination of Ms. Capuano, and time for defence evidence, and we both agreed that two weeks was appropriate.
I don't think it's entirely predictable, but that leaves approximately four days for Ms. Capuano to testify. And I think there are a lot of questions that Mr. Fox would like -- that are -- there's a long history to their relationship. In any event, all that to say we fairly thoroughly, I think, looked at the witness list and decided between us, after discussion, that that's a reasonable time estimate. I can't say, obviously, for sure that we wouldn't go over, but it does seem reasonable to me.
THE COURT: Well, can we -- well, there's two things we need to do. One is to canvass whether there are any other issues that are going to need determining. I gather there's no Charter issues you're raising, Mr. Fox, or have you fully considered that?
THE ACCUSED: I don't believe that there are any Charter issues with respect to this case specifically, but there's the Charter issues with the jail, with them interfering with my ability to prepare my defence. I believe that will be s. 7 and 11(d).
THE COURT: All right.
THE ACCUSED: But that has nothing to do with the trial.
THE COURT: Are you contemplating bringing an application or are you simply telling me that you're finding it difficult to prepare and you would like some help in making things easier for you?
THE ACCUSED: The latter, yes. At this point I'm saying that I'm finding it difficult to prepare because of the restrictions they're putting on me in the jail, and I would like some help with that. If it continues to the point that the trial commences and I'm not able to get the evidence, I guess then I'd probably have to look at a civil suit or a civil issue with the jail at that time. I mean, at least that's how it would work in the U.S. I'm not familiar with how it would -- these situations would work here.
THE COURT: Well, we wouldn't want to have a situation where we've started a trial in front of a jury and you're having trouble conducting that trial. That's not a good use of court time. And we'll have to come up with a way of making sure that you are able to conduct your own defence.
MR. MYHRE: My Lady, can I say something on that point?
THE COURT: Yes.
MR. MYHRE: I was going to get to that issue but it did strike me that there is a potential solution to this problem now that Your Ladyship has appointed counsel. I mean, it's somebody, as we've seen, is in -- now, because of your appointment, whoever it is will be in a solicitor-client relationship with Mr. Fox, and so Mr. Fox could avail himself of that relationship to have things sent to that counsel, who's going to have to conduct the cross- examination in any event. So I -- that is one thought that occurred to me about that problem. So I don't know if Mr. Fox has any immediate thoughts on that.
THE COURT: I think I don't have a good enough understanding just yet of what the problems are that you're facing. Do we want to get into this now or a little bit later?
THE ACCUSED: Perhaps we should come back to that.
THE COURT: All right, let's come back to it. But there are no other applications, Charter applications, to do with search of seizure or anything like that.
THE ACCUSED: No. No, there's --
THE COURT: All right. Then perhaps, Mr. Myhre, you could just take me through the witness list and I'll -- with time estimates and we'll just get a better and more precise sense of how this trial would unfold and -- and therefore get a better sense of the -- the overall time.
MR. MYHRE: Do you have the synopsis, My Lady?
THE COURT: I do.
MR. MYHRE: Okay. Take me a while to find it here in my sheath of papers.
THE COURT: Well, I can read you your own witness list if you like, and you could tell me more about it if that would help.
MR. MYHRE: I'm fairly confident of being able to put my hands on it. There it is. Do you have -- you don't have your copy on you. So -- the witness list and the Crown synopsis.
THE ACCUSED: I wrote them down there.
MR. MYHRE: I see. Okay. So Desiree Capuano, obviously, the complainant. I would anticipate being approximately a day with her in direct. And then I've budgeted -- in this synopsis I budgeted three days -- or, sorry, two days for her cross- examination. I think Mr. Fox contemplates that maybe three days would be more appropriate.
THE ACCUSED: I think I'm comfortable with two days at this point with recent evidence that I've received.
MR. MYHRE: Manvir Mangat and Mohammad Khan [phonetic] are the business owner and an employee at that business of the packaging company who the Crown says Mr. Fox used to ship his restricted firearms to the United States. And Mr. Mangat testified at the preliminary inquiry. Anyway, their -- their evidence is relatively brief, confined to what they did for Mr. Fox and under what circumstances, but they aren't lengthy interactions.
THE COURT: Can I ask whether that area of the evidence -- and I'm getting the understanding that this is disputed, Mr. Fox, that the Crown's theory -- on the Crown's theory of the case, is it alleged that Ms. Capuano knew of this shipping of firearms?
MR. MYHRE: No.
THE COURT: So that would relate only to Count 2.
MR. MYHRE: That's correct.
THE COURT: Is there a difficulty in having a jury trial with those two counts and evidence of shipping firearms relevant only to Count 2 that potentially having an effect improperly in relation to Count 1? Is that something you've considered, Mr. Myhre?
MR. MYHRE: I have not thought about that, My Lady. Off the top of my head, one of the elements of the offence is going to be whether the complainant reasonably fears for her safety.
THE COURT: So it would go to reasonableness.
MR. MYHRE: Well, if they found that Mr. Fox was taking steps that a reasonable person -- well, of course, it would have to be a reasonable person in her circumstances. I'd have to think about that, My Lady. There is evidence -- I was reviewing Ms. -- one of Ms. Capuano's statements yesterday and one of the things that she said caused her fear was just the fact that Mr. Fox was informing her that he was obtaining firearms and could use them. And she coupled that with the idea that he also told her that he would cross the border whenever he felt like it, she said contributed to her fear that he might just show up and kill her one day. So there is already that -- the evidence of his owning firearms and her fear that something of that nature could happen.
THE COURT: My question really relates to evidence, if it's established, that Mr. Fox actually took steps that were in accord with Ms. Capuano's fears, and yet they were steps which, on what you've just told me, she was not aware of. So that evidence would not be relevant to Count 1 and yet it would be tendered in a trial in relation to Count 2. I just have a bit of concern about whether it might taint the jury's consideration of Count 1.
MR. MYHRE: Can I think about that, My Lady? I think Mr. Fox has something he wants to say about that.
THE COURT: And what I should say is the reasonableness of Ms. Capuano's fears surely are measured by reference to what she knew. In other words, were they ridiculous, hysterical fears on what she knew or, rather, were they reasonable fears that a reasonable person would have had on the basis of what she knew? But to my understanding of the provision, the Criminal Code provision, it's all measured according to what she knew. Perhaps I'm wrong on that. But if I'm right, then the evidence going only to Count 2 wouldn't be admissible in relation to Count 1, and I simply wonder whether there's a problem there.
MR. MYHRE: Can I think about that, My Lady?
THE COURT: Yes. Thank you.
MR. MYHRE: Mr. Fox, I think, has something to say about it too.
THE ACCUSED: I would just like to say for the record on this particular point, I've expressed the same concern throughout this entire proceeding, and the way that these charges have been presented in the media also goes along with that. They're attempting to link the facts that I had firearms and that I shipped the firearms or sent the firearms down to the U.S. with the criminal harassment to make the criminal harassment seem like it was much more serious, so I'm thankful that you brought that up.
THE COURT: All right. Anyway, I interrupted your review of the witness list. The two witnesses from the business, the shipping business, from the Crown's perspective would be fairly short. From your perspective, Mr. Fox, do you expect you would need to cross-examine them for very long?
THE ACCUSED: No, not at all. I believe 15 minutes at most for each.
THE COURT: All right. All right. Thank you. Then there's an agent.
MR. MYHRE: Yes, there are two ATF agents. As I said, those are the -- the agents who went to the home of a person alleged to be a friend of Mr. Fox's, confiscated 25 boxes that had been shipped there, apparently from Mr. Fox, and found inside those boxes his four registered restricted firearms.
THE COURT: ATF.
MR. MYHRE: Alcohol, Tobacco, and Firearms.
THE COURT: Ah.
THE ACCUSED: Full name, Bureau of Alcohol, Tobacco, Firearms, and Explosives now.
THE COURT: Thank you.
MR. MYHRE: My Lady, I -- one of those agents would have talked particularly about the nature of the firearms that were collected. And so, in light of the fact that Mr. Fox doesn't contest the nature of those firearms, I may only be calling one of those agents, but I have not thoroughly reviewed their evidence just to make sure that that's the case. But certainly we will have the officer who attended the house, seized the boxes, seized the firearms.
And then Constable Jason Potts.
THE COURT: All right, let me just ask Mr. Fox. Now, again, I'm not ask -- well, I shouldn't say again. I haven't explained this. I think I did say earlier that the obligation of disclosure does not work both ways. You're not obliged to tell Mr. Myhre or me what your defence is. You're not -- there are certain exceptions, as I said, expert evidence, if you're calling expert evidence, is one. Alibi may be another if you planned on testifying about an alibi, "I wasn't there, I was somewhere else," there may be some sort of obligation to give some previous notice of that. I can't think of any other exceptions, but Mr. Myhre will help me if I'm missing something.
So you're not obliged to say, "Well, my defence is this, so the -- my cross-examination would be only on the following points." You're permitted to if you find there's no reason you wouldn't say it in open court, but you're certainly not obliged to.
And there are many situations like this in a pretrial conference where defence counsel appearing for an accused person will say, "Well, I'm afraid I'm just not in a position to be able to tell the court at this time whether my client will be testifying, what the defence will be," and that's understood and that's fair enough. There are other times when there's no reason, from the defence's strategic point of view, that they can't say, "The only issue in this case is going to be who pulled the trigger or was it self-defence," or something like that. So be aware of that if you're not already.
But what I'm asking if you're in a position to respond is roughly how long you think you would need for cross-examining these two agents.
THE ACCUSED: For each of the agents, I believe 15 to 30 minutes at most.
THE COURT: All right. That's helpful. Thank you.
Constable Jason Potts.
MR. MYHRE: Yes. The last few officers are officers who took statements from Mr. Fox, Potts in 2016 and Huggins in 2015, and so their testimony is limited to essentially authenticating the videotaped interviews that --
THE COURT: Now, video in each case?
MR. MYHRE: Yes.
THE COURT: And how long is the video?
MR. MYHRE: I confess I just received the Huggins, and I'd say I believe it's a video but I haven't actually reviewed it. I only got it a couple weeks ago. It came up because there was all -- some other disclosure requests that Mr. Fox made. But the first one is video and it's about three hours long.
THE COURT: All right. The second one, any --
MR. MYHRE: And the second one is certainly shorter. It's probably about half as long.
THE ACCUSED: It is a video and I believe it's 45 to 55 minutes.
THE COURT: All right. We'll call it an hour.
MR. MYHRE: And --
THE COURT: And the other evidence from those officers would simply be, "I was there, I talked to Mr. Fox. Here's the video."
MR. MYHRE: Yes.
THE COURT: All right.
MR. MYHRE: And so I don't know to -- how much cross- examination there would be.
THE COURT: So, Mr. Fox, assuming you're agreeing that these statements are voluntary, the way this type of evidence typically is tendered is the officer will come in holding a DVD, they'll introduce themselves, say they were on duty such and such a date, they'll say they met you wherever it was, give the date, the time, they conducted an interview with you, it was recorded, "Here's the recording," and it goes usually in somebody's computer, it's played for the jury. The officer sits there while it's played. Generally it's not stopped during the playing unless something unusual happens, the officer leaves the room and absolutely nothing happens for an hour or something. We might fast forward it.
But other than that -- or something might happen and you can't quite see it on the screen, the officer might be asked to explain what was going on in that lower left corner. Generally we see it through to the end, and the officer says, "Yes, that's the state -- the -- the interview." Oh, and one thing I missed. Generally there's a transcript as well that we're all given to help read along with. It's the video that's the evidence, not the transcript. The transcript is just to help us all read along. But the officer will be asked whether he saw any mistakes in the transcript while the video was playing, and there may be a few, and we'll all make the corrections. And that will be it for the officer's evidence, as I understand it. And then you would cross- examine.
So you might cross-examine on what was not discussed or on other conversations you might have had with that officer or on particular features of the interview, perhaps, for example, sometimes it's suggested to officers who have conducted interviews that essentially they're putting the words into the mouth of the person, they're getting to -- them to agree -- they're telling them the evidence and getting them to agree to it, so it's no surprise that the person knew that the gun was black and the victim was shot in the head, for instance, in a murder trial, because the officer told the person that and got them to agree that they had seen the body or something. Those are types of things that are sometimes cross- examined on. Sometimes there's no cross- examination at all.
Have you begun the process of thinking about how you -- what you might want to cross-examine these officers about?
THE ACCUSED: Yes. Yes, I have. And I would estimate, preliminarily at this point, that with Officer Potts or Constable Potts, I'm thinking possibly two hours, though probably closer to one hour.
THE COURT: All right.
THE ACCUSED: Just to clarify some of the statements and the questions.
THE COURT: All right.
THE ACCUSED: And I would -- I would guess the same for Constable Huggins, one hour.
THE COURT: Thank you. That's helpful. Any other Crown witnesses, Mr. Myhre?
MR. MYHRE: No, that's it, My Lady.
THE COURT: Now, I got the clear impression, Mr. Fox, that you do intend to testify in the trial, or at least you think it's quite likely that you will.
THE ACCUSED: Yes. I will definitely be testifying, yes.
THE COURT: And do you have any rough idea of how long you would need to give your evidence before you're cross-examined?
THE ACCUSED: That, unfortunately, I don't.
THE COURT: Now, Mr. Myhre has said that, for Ms. Capuano, he estimates he'll need a day to take her through her evidence in chief. Does that give you any sort of rough guide of how long you might need to go through your evidence in chief? Would it likely be more extensive or less extensive than hers?
THE ACCUSED: I would --
THE COURT: Just a suggestion as --
THE ACCUSED: Yeah. I would say definitely more extensive, if for no other reason I have a tendency to be much more verbose. I might speculate a day and a half.
THE COURT: All right. That's helpful. Are you in a position to advise whether you'd expect to call other witnesses as well?
THE ACCUSED: I do have additional witnesses that I was intending to call. One thing I'm very concerned about, though, is if we were to increase the allocation of time from two weeks to something other, if that would result in rescheduling the trial for another date. That's something I want to avoid.
So if there's time for it, then I would intend to call some additional witnesses, but otherwise I believe that I have sufficient evidence to make my case and persuade the jury.
THE COURT: I think -- what you're describing about rescheduling does sometimes happen, but it's not going to happen on this case. Is it appropriate for me to ask whether Mr. Fox is in custody on these charges? Do you have any difficulty with my asking that?
THE ACCUSED: Not at all.
THE COURT: Are you?
THE ACCUSED: I am.
THE COURT: Then you --
THE ACCUSED: I'm --
THE COURT: -- these -- this trial should go ahead.
THE ACCUSED: Thank you.
THE COURT: Now, if we need to add time, much better that we do it now rather than have a jury come expecting a two-week trial and then be told that, no, it's going to be longer. Sometimes that happens. There are things that can happen that we just can't predict. Somebody could get ill in the middle of the trial and we have to lose a day or two. But if, in talking about the case now, it's clear that we're going to need longer than the scheduled time, then we'll add time and we'll do it now. All right?
THE ACCUSED: Okay. I would say, then, ideally, with the additional witnesses I would like to call, I would propose adding six hours for -- well, somewhere between four and six. And I apologize for not having more experience with scheduling these but ...
THE COURT: So you suggest adding four or six hours, so that's essentially a day and a half.
THE ACCUSED: Yes.
THE COURT: Are you thinking of the time required for them to testify in chief?
THE ACCUSED: Yes.
THE COURT: So we'd have to add more time for cross- examination of those witnesses as well. So let's say six hours is -- it equates to a day and a half of court time, so we would need to add three days minimum.
All right. Now, other things that take place in a jury trial are at the very beginning of the trial I give some basic instructions to the jury about how they're to perform their task, what to expect and so forth. And that typically takes an hour, an hour and a half. So we lose time there.
Then there's an opening statement by the Crown. Mr. Myhre, what are you expecting? An hour?
MR. MYHRE: Fifteen minutes.
THE COURT: Very short. All right.
Before you begin the defence case, so after all -- sit down. Sorry, Mr. Fox. So we have all the Crown witnesses. And I'm -- I'm not spelling out every detail in the procedure because I get the impression you've familiarized yourself with a number of these things, Mr. Fox.
THE ACCUSED: Yes, I have. Thank you.
THE COURT: All right.
THE ACCUSED: I've been provided some literature from the previous --
MR. MYHRE: Justice Duncan.
THE ACCUSED: Right.
THE COURT: Right.
THE ACCUSED: And also I've been through a jury trial in the U.S. years ago.
THE COURT: All right. So we get through the Crown case and then you're called on to decide whether you're going to testify or not. You're confident you will be testifying. You can always change your mind on that. But if you are going to be testifying or calling witnesses, you then make an opening to the jury. Very important in that opening to make sure that you're not arguing the case and that you're not giving evidence.
You are simply outlining for the jury what you expect the evidence to be in the -- that you'll be calling, and then -- but you do it in a neutral way that will allow the jury to form its own opinion about that evidence. It's not like American television where people pound the table and there's no hyperbole, it's simply to help the jury know where you're headed in your case so that they can understand the evidence better as it's given on the witness stand.
Then you call your witnesses and you've testified. It's customary, but it doesn't have to be the case, that you would be the first witness for the defence, and then your other witnesses would follow. But you can depart from that if you have a reason that you'd like to do it in a different order.
I suppose something to keep in mind is that if you testify first, which is the usual way of doing things, the jury will have seen you testify before you then call your witnesses. If you do it in the other order, the jury will have seen you listen to the evidence of all your other witnesses and then give your own evidence, so it might affect the weight they would give your evidence.
THE ACCUSED: Right, right.
THE COURT: When you've given all your evidence, in exceptional cases there's sometimes a right of the Crown to call reply or rebuttal evidence. It doesn't often happen, it does sometimes. It has to be on a point that you led evidence on and the Crown couldn't reasonably have anticipated.
And then come the closing addresses. Now, usually before the closing addresses we'll have a discussion without the jury and we'll talk about what's going to be in the judge's charge to the jury at the end of the case. What defences will be described for the jury to consider, things like that. It's often useful to have that discussion before each of the parties makes their closing submissions to the jury so that if, for example, I decide that something the Crown wants to say to the jury would not be proper and the Crown should not be permitted to say it, the Crown knows that ahead of time. If I decide that a certain type of defence is not a proper defence, not recognized in law, it will not be left with the jury to consider, you know not to refer to it in your closing address.
So those steps at the end of the trial take a while. And as I said, we usually lose a bit of time just everybody getting prepared to deal with the evidence they've just heard from the defence, getting ready to make closing submissions to the jury, and then finally the judge's charge. So we're probably looking a couple of days at the end for those steps. The judge's charges can easily take two and a half, three hours to actually deliver.
All right, let's do some arithmetic here. I don't think 10 days is enough, Mr. Myhre.
MR. MYHRE: No, I agree.
THE COURT: In fact, I think 15 is probably about right, but it's not excessive. I'm going to suggest that we add another week. And if it comes in less than that, that's fine, but better to have it booked rather than not have enough time booked.
So the trial is scheduled for -- is it June 19th?
MR. MYHRE: Yes.
THE CLERK: Yes, My Lady.
THE COURT: For 10 days. Madam Registrar, do we need to phone down and make sure we can add a week? I'm sure we can.
THE CLERK: Yeah, I'll just confirm it.
THE COURT: Right. That also would take us over a long weekend, the July 3rd weekend, I believe. Or have I --
MR. MYHRE: Right.
THE COURT: July -- right, Canada Day is July 1. I know what they're going to tell me.
THE CLERK: There is a long weekend on the July 3rd, so the 7th would give 14 days.
THE COURT: Is there any chance of starting earlier? Mr. Myhre, would that --
MR. MYHRE: I just need a minute, My Lady.
I wouldn't say it's out of the question, My Lady. It would require reassigning a Provincial Court trial, but two months in advance I would think would be doable.
THE CLERK: Sorry, I missed what you were telling her.
MR. MYHRE: The short answer is, yes, I could.
THE CLERK: Oh. Rhona from trial scheduling said you could start the trial on the 12th of June, that everyone -- the courtroom and you are available, My Lady.
THE COURT: I am. The problem is then those final three days, I think, would still be caught, wouldn't they, in that period?
THE CLERK: It would be the 12th to the 16th, the 19th to the 23rd, the 26th to the 30th, gives 15 days.
THE COURT: Oh. No, that would work. All right.
THE CLERK: Does that work for everybody?
THE COURT: So start on the 12th.
MR. MYHRE: I wonder, My Lady, just so that we don't really upset my boss, if I can talk to her at the break.
THE COURT: Perhaps we should take a break now. And I don't want to push you into this if you're not confident. The other option is we could extend the trial at the other end.
MR. MYHRE: Is that just as easy?
THE COURT: No. It would mean we'd have to find another trial judge, because I have another matter in that following week that I need to do.
MR. MYHRE: Okay. I think the -- the prior week should be doable, so ...
THE CLERK: Do you need to make a phone call?
MR. MYHRE: Yes.
THE COURT: All right.
MR. MYHRE: I wonder, could we take the break? There are -- I had about a half dozen issues that I at least wanted to canvass --
THE COURT: Yes.
MR. MYHRE: -- before the end of the day as well.
THE COURT: Well, what we'll do, we'll take the break anyway, because it's the break time. We'll come back, we'll finish up with the scheduling issue and with other issues. If we don't get finished, we'll make another pretrial conference date.
All right.
(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)
(PROCEEDINGS RECONVENED)
MR. MYHRE: So, My Lady, I just confirmed I can make June the 12th work.
THE COURT: All right. And that's agreeable to you, Mr. Fox?
THE ACCUSED: Yes, it is. Thank you for asking.
THE COURT: I understand, too, that it works better for the court as a whole. It's easier for courtrooms and so forth than trying to add on at the end.
All right. So we'll start the trial on June the 12th and we'll go for 15 days, so through to -- now, when does that take us to?
MR. MYHRE: Should be the 30th.
THE COURT: All right. So that's right before the long weekend. And so what we'll tell the jury at jury selection is that they should be prepared to be a bit flexible. And if there's anyone with plans for the long weekend, that could be a problem. All right. If we don't need quite as long as that, that's fine.
All right. Mr. Myhre, you had other issues you wanted to raise.
MR. MYHRE: So I hadn't specifically canvassed in open court with Mr. Fox the voluntariness of his 2015 statement to Constable Huggins. I did mention it last day after the statement came into my possession and asked Mr. Fox to consider it. I did mention to -- it to him before court today. I understand that he has no issue with the voluntariness of that statement either.
THE ACCUSED: I have no issue with the voluntariness of that statement.
THE COURT: All right. Thank you.
MR. MYHRE: Mr. Fox raised the issue, and I think it's a good one, in a letter to me this month, he would like to know what definition of "psychological harm" is going to be put to the jury. And I think it might be useful if at least that element of the offence was spelled out very explicitly as the jury will see it. As I found in my own research and as Mr. Fox pointed out, it is -- the definition in the case law doesn't say much more than psychological harm. And so we may or may not get more specific than that, but I think that we should hammer that -- or nail that down before the trial so Mr. Fox fully understands the case to meet or the definition his actions are being tested against.
I do have a proposal in that regard. I'm certainly going to suggest that we have another pretrial conference before jury selection, or maybe close in time to the jury selection, just to make sure that everything's on the rails. But one thing that I could do is make a written submission to Your Ladyship before that and ask Your Ladyship to consider that -- consider anything Mr. Fox might say, perhaps -- I don't know if a written submission will be possible from Mr. Fox as well, but have Your Ladyship then consider those and make a decision on what will be put to the jury in that regard. Or perhaps we could discuss that issue at a pretrial conference and then ask Your Ladyship to give us the definition early on in the trial or at the start of trial.
THE COURT: I'm just wondering if it's a definition that -- it's not -- it's one thing to provide a definition of a term, it's another thing to provide an outline of what will be said to the jury about the term and what's capable of satisfying the requirements of the term. And I'm wondering, for the latter, if one needs to wait to hear what the evidence is in the trial. I'm just wondering, I'm not saying that's the case. At the same time, I'm -- I can well understand Mr. Fox's concern to know what's meant by "psychological harm".
I wonder if some of the standard jury instructions would help us on this.
MR. MYHRE: I did send Mr. Fox one.
THE ACCUSED: There was --
MR. MYHRE: He probably looked at it even more closely than I have.
THE ACCUSED: Yeah. There was nothing in there on psychological harm at all.
MR. MYHRE: So that was out of the CRIMJI manual. I haven't looked at Watts. But this is why I say -- or suggest that perhaps written submissions would be useful.
THE COURT: Would the Crown be able to provide an outline of what the Crown expects the evidence to be concerning psychological harm and how, in the Crown's submission, that would constitute psychological harm? And that might at least create a starting point for developing a description of that concept.
MR. MYHRE: Yes.
THE COURT: Would that help?
THE ACCUSED: That would help immensely, I think, yes. Thank you.
THE COURT: All right.
MR. MYHRE: So, My Lady, I can provide -- my understanding of what you're suggesting is that I provide something like that to Mr. Fox, but not actually discuss the issue in court.
THE COURT: Well, I was thinking provide it to Mr. Fox, provide it to me, and we could all look at it at the next pretrial conference. And if Mr. Fox has any questions about why it is that the Crown's saying a particular type of result amounts to psychological harm, we could talk about it. And I'll look also at some of the standard jury instructions on this point and see what they say, and that might be helpful also.
MR. MYHRE: So I will do that some reasonable time ahead of our next pretrial conference.
THE COURT: That would be helpful.
MR. MYHRE: I still need to -- I still intend to draft a proposed admission regarding Mr. Fox's criminal record. We discussed this last day, I just haven't done it yet. But that's an issue more between the Crown and Mr. Fox.
The Crown was intending to -- did you want to add anything to that point, Mr. Fox?
THE ACCUSED: No, not yet.
MR. MYHRE: The Crown was intending to make an application to have the ATF agents testify via videoconference, but I learned this afternoon that actually I will get permission to fly them here.
THE COURT: All right.
MR. MYHRE: So I believe they will be testifying in person. That should take care of that issue.
THE ACCUSED: But I don't oppose that, right? If you want to have them appear by video.
MR. MYHRE: Okay. I wasn't sure if you opposed it or not. But anyway --
THE ACCUSED: No.
MR. MYHRE: -- it looks like it's not an issue. They'll come in person.
I also, quite some time ago, told Mr. Fox that around the middle of May I would try to get him a fairly specific list of the documents that I would be tendering at trial. As Your Ladyship saw from the synopsis, this case revolves largely around a number -- a large volume of emails and then a very large website allegedly created by Mr. Fox to perpetuate the harassment. So Crown's not going to be leading every page of that website or every email before the jury, and I would like to get that list of documents to Mr. Fox. I am going to try to do that for the middle of May, so hopefully that will be before the next pretrial conference. So I just want Mr. Fox to know I haven't forgotten about that.
THE COURT: All right. Can we put a date on it and then Mr. Fox knows if something's gone wrong?
MR. MYHRE: Could we say --
THE COURT: May 19? May 19 is a Friday.
MR. MYHRE: A Friday. Yes, May 19th. I agree to that.
And I want to say, My Lady, I will endeavour to make that list complete, but I don't take the position that the Crown will be bound not to lead anything else from the website or any other communication. I am trying to, you know, for the purpose of letting Mr. Fox know what evidence I'm going to be leading exactly, give him all the documents, but I'm not saying that -- I'm not going to be holding things in my back pocket, but, as Your Ladyship knows, the closer people get to trial, witness interviews sometimes you discover something has more significance than you thought it did at first.
So I can't promise that this would be -- that nothing else from the website or no other communications would come up. I mean, obviously what I can say is that nothing's going to come up that isn't on Mr. Fox's website or hasn't been disclosed to him.
THE COURT: All right. But at least a starting point in the middle of May will help you, Mr. Fox, look at what Crown at this point thinks it will be putting in evidence, and then you can start to think about whether there are other documents that you wish put into evidence.
THE ACCUSED: Yes.
THE COURT: And there are several ways -- if there are, several ways you can approach the matter. You could, if you wish, contact Mr. Myhre and say, "I'd be grateful if you would also include this, this, this, and this," and he may very well agree to do that. Or you could put together your own collection of documents and I would imagine they'll be documents that you'll need to cross- examine Ms. Capuano on. Well, perhaps not. But you'll either be cross-examining a witness on them or you'll be putting them into evidence when you yourself testify. If it's when you yourself are testifying, you'll probably want to have them in a book and organized. If it's to cross-examine Crown witnesses, you might want to do that one by one with the documents. But by middle of May you'll know what the Crown, at least on a tentative basis, proposes to tender, and then you can think about what other documents you want to use. All right?
THE ACCUSED: Okay. The only concern that I have about this, and this is purely my own issue I realize, is the person that is helping me, for example printing documents from the website or emails and then sending them to me, is in Los Angeles, and because of the amount of time it takes to get a hold of her and then have her print the documents and mail them to me. And one thing that I guess has been an issue so far in this case is Ms. Capuano has been providing very select emails and often only one side of the conversation. So once I receive that information from the Crown, I'll need to look at what the email thread was to see what is missing so I can put some context to it, which is why I was hoping that he would be able to provide me a more conclusive list, which he's committing now to May 19th. But I am a little bit concerned that that is getting close to the trial start.
THE COURT: Can you move that up a little earlier, Mr. Myhre?
MR. MYHRE: Pardon me, My Lady. I'm just looking at my schedule. Yes, I can commit to May the 12th.
THE COURT: All right.
THE ACCUSED: Thank you.
MR. MYHRE: Keeping in mind, obviously, that there are things that Mr. Fox might not want to disclose to me, I think I've made it clear to Mr. Fox that if he thinks that there are logistical things that I can assist with in terms of photocopying documents -- I mean, obviously that tells me something, so he may not want to get my assistance with those things, but that is -- that is an option. And certainly for things like cases or -- you heard -- I agree with Your Ladyship that if Mr. Fox wants me to include some additional emails or parts of the website, I would certainly consider it.
I think the only other thing I wanted to discuss, My Lady, was going back to the issue of how Mr. Fox is going to be getting the evidence he needs at North Fraser, because I understand that's been an issue.
THE COURT: Right.
MR. MYHRE: So --
THE COURT: So this is what you wanted to discuss, Mr. Fox, I think.
THE ACCUSED: Yes. Yes.
THE COURT: Do you want to tell me what the difficulties are and how you think they could be solved?
THE ACCUSED: Sure. Certainly. There is -- well, one major hurdle, I guess, has recently been overcome. The Crown, Mr. Myhre, has provided me a copy of the entire website, which helps substantially.
But there's additional evidence, particularly audio/video files, that I have on my servers or on some of my computers in Los Angeles that would need to be put onto a DVD and then sent to me. Now, the jail is saying I can only receive such items from an attorney. Since I'm representing myself, I don't have an attorney to send them to me. And I have been going through the complaint process at the jail and we're slowly gradually getting through that. In the meantime, though, the trial is getting closer and closer and I'm still not able to obtain these items.
Now, as I had expressed earlier, there's some evidence that I don't want the Crown to have prior to when I submit it at the trial for a strategic reason, the element of surprise and some other reasons. And so for that reason I'm reluctant to have my friend in Los Angeles put the evidence onto DVDs and then send them to the Crown because obviously then he's going to have that well in advance of the trial.
And for the concerns that I had expressed earlier about -- with the attorneys that I've had so far appearing to not be, in my opinion, acting in my interests, I would be hesitant to have the appointed counsel receive those as well because then, maybe I'm being paranoid or maybe there is a possibility that he may provide a copy of that to the Crown, which is something that I would want to avoid.
THE COURT: Well, I think probably any counsel receiving something for you and then providing it to the jail for you would have an ethical obligation to have a look at it and make sure it's not contraband or --
THE ACCUSED: Yes.
THE COURT: -- something like that. The only situation I could think of in which a lawyer who reviewed it for that reason would feel they might have to show it to someone else was if they saw some evidence of illegality on the DVDs. I'm sure you can think of examples of what there might --
THE ACCUSED: Oh, yes.
THE COURT: -- the kinds of things that might give rise to an ethical obligation to let somebody know. Do you have any concerns on that sort of score?
THE ACCUSED: I have no concerns, and I've expressed this to the -- the assistant warden at the jail as well while we were discussing these issues, I have no concerns with any of the jail staff reviewing the contents of any of that material as long as it's done in my presence so that I know it's not being copied and then forwarded to the Crown or the Crown's agents. And they said they would consider that, but then decided ultimately that that wouldn't be acceptable.
THE COURT: Is that because they simply don't have the time for jail staff to be doing that?
THE ACCUSED: They didn't provide a reason.
Another significant issue that I'm having with the jail is the refusal to provide photocopies. Now, they've recently said that they will provide photocopies for legal material but at a cost of 10 cents a page, which, since I've been in custody for almost a year now and have had no income, obviously that's something I need to consider, consider meaning how it's going to affect my -- my financial situation. At this point, everything needs to be taken into consideration in that respect.
THE COURT: Do you foresee a need to make a great number of photocopies?
THE ACCUSED: Prior to trial, yes, definitely. There are a number of exhibits that -- well, some of the exhibits in their entirety would be quite large, maybe a hundred and some pages. But I'm not sure if it would be acceptable to submit just the relevant pages. Because if that's done, it might be harder to authenticate the document. The -- some of the documents in question are declarations that were filed in the family court in Los Angeles by Ms. Capuano or myself which contradicts statements that she's now making to the RCMP, for example.
THE COURT: Well, for those kinds of documents, and that's just -- probably just one type that you're looking at, but for something like that, declarations in another proceeding, I take it it would be something you would cross-examine her about. You would say, "You're saying this now but on an earlier occasion you said something completely different. Let me show you your declaration," and you'd take her to the appropriate part; right? That's roughly what you have in mind?
THE ACCUSED: Yes.
THE COURT: For that type of cross-examination, the document in question is not usually an exhibit. You simply show it to her, you read it slowly so that the jury can hear what you're saying she said previously, and the jury doesn't get copies. And they certainly don't get copies of the whole declaration because there's no reason they should have a copy of what she said in another proceeding. So you would need to give Mr. Myhre a copy and probably me a copy, but you won't need 12 copies for the jury.
THE ACCUSED: Right.
THE COURT: Unless you disagree on any of that, Mr. Myhre.
Now, if the documents you have in mind include, say, other pages from your website or other emails, yes. And if you want them to go in as exhibits, yes, the jury will have to have copies of those.
THE ACCUSED: With respect to printing content from the website, there is a lot of content from the website that is going to need to be printed because I intend to present that, but I believe Mr. Myhre said that he would be willing to assist with those types of issues.
MR. MYHRE: Yes.
THE ACCUSED: Okay. So I guess really the -- the most important thing that that leaves is that audio and video media.
THE COURT: Well, the jail will -- let me just think this through. The jail will allow you to have it if it comes from a lawyer.
THE ACCUSED: Yes. And if I could find a lawyer I could trust, then everything would be -- everything would be fine then. But if I could find a lawyer I could trust, then I probably wouldn't be representing myself. It is not that I have an inherent distrust for lawyers or for attorneys, it's just purely because of my experiences so far with the few that I've worked with on this case. It's nothing beyond that.
THE COURT: I wonder if it wouldn't be best to start the process of your finding a lawyer, under the order I made, to conduct the cross-examination, and you may find in that process that you do come across a lawyer you trust.
THE ACCUSED: Would --
THE COURT: We have a lot of trustworthy lawyers.
THE ACCUSED: Well, let me ask you now, from the cases that I've read dealing with 486.3 issues, one in particular, Wapass I believe it is, in Saskatchewan, in that instance the court provided the accused a list of lawyers that were qualified and then he could pick from that list. But in other cases the court chose which lawyer would be appointed. So I'm not sure how it would be handled in this case.
THE COURT: In this case I think the court's not going to participate at all.
THE ACCUSED: Oh.
THE COURT: I will -- I've made the order. Mr. Myhre will make sure it reaches the Legal Services Society. They will get in touch with you and take steps to appoint a lawyer. I imagine they're probably subject to some constraints, but they also, I imagine, want to try to appoint a lawyer that you're comfortable with. Is that how you understand the situation to be?
MR. MYHRE: To be honest, My Lady, I'm not sure to what extent the Legal Services Society involves Mr. Fox. I don't know if they just go to their list of lawyers, find one who's available, and say, "This is it. Get in touch with Mr. Fox," or if it's more as you described. I'm not sure.
I would think that if a lawyer shows up and says, "Mr. Fox, I'm you're lawyer," and after some discussions Mr. Fox isn't comfortable with that lawyer, there -- I would think there could be some discussion with the Legal Services Society, but that's not something I know.
THE ACCUSED: I could perhaps contact the Legal Services Society, I think I can reach them from inside the jail, and ask them for more information about how they normally handle this.
THE COURT: That might be a good first step. And if you like, we could have a brief pretrial conference following up and see how you're doing in that regard, because obviously we don't want this to wait too long. Would that be a good idea? Where are we now? End of April. When were you thinking, Mr. Myhre, for another pretrial conference?
MR. MYHRE: Well, the issues we want to discuss at that pretrial conference are going to be -- and the outstanding issues are Mr. Fox getting the evidence that he needs at the jail and the definition of "psychological harm". And I -- you know, it's going to take the Legal Services Society a little bit of time to source a lawyer, and that lawyer a little bit of time to get in touch with Mr. Fox and then to have at least some conversation. I mean, May 19th or -- or sometime after May 12th, if that's the deadline when I'm hoping to get Mr. Fox -- or when I will get Mr. Fox a list of documents might make sense. So sometime in the week after that.
THE COURT: How about Tuesday, May 23rd --
MR. MYHRE: Pardon me again, My Lady.
THE COURT: -- at nine o'clock? Now, will there be a difficulty? There will, won't there, Mr. Sheriff.
THE SHERIFF: There may be, My Lady. 9:30 probably will be a little more doable.
THE COURT: Right.
MR. MYHRE: Pardon me, My Lady. What was the date you suggested again?
THE COURT: Tuesday the 23rd.
MR. MYHRE: I'm available that day.
THE COURT: Would that work for you?
THE ACCUSED: Yes. Thank you.
THE COURT: All right. Then 9:30. Now, when's the jury selection?
THE CLERK: Jury selection is May 30th, My Lady, at 10 o'clock. So there's already a remand on the file for May 30th for Mr. Fox. So if he needs to come in beforehand on the 23rd, he would need to come in on a spring order.
THE COURT: All right.
THE CLERK: So if you ordered that, then the registry would prepare it.
THE COURT: All right, then I'll make that order. And also, Mr. Myhre, you were going to give consideration to the issue I raised about evidence admissible on one count and perhaps not relevant on Count 1.
MR. MYHRE: Yes. And the other issues that I have noted to discuss on that day include the definition of "psychological harm" --
THE COURT: Yes.
MR. MYHRE: -- so I'll endeavour to have materials to Mr. Fox and the court the week prior to that pretrial conference on that issue. And then we'll also confirm with Mr. Fox that hopefully everything is on the rails with respect to appointing counsel.
THE COURT: All right. Does that sound reasonable, Mr. Fox?
THE ACCUSED: Yes. May we add one thing to that, though? The disclosure issue with the RCMP interviews where there are significant chunks that are removed.
MR. MYHRE: Right.
THE ACCUSED: Would there be time for that or ...?
MR. MYHRE: I'll state what I think the issue is and correct me if I'm wrong.
There are, on a few different statements, there -- I have vetted out parts of the transcripts of some of these statements, either because what's said in them is, in my opinion, clearly irrelevant or irrelevant and private information.
Mr. Fox has an issue with at least some of the vetting. Is it all of the vetting or some of the vetting?
THE ACCUSED: Some. Some. Addresses, telephone numbers, etc. I understand. I have no issue with those. But it's where there are significant chunks where it's showing both sides of the conversation are removed so that I can't even see what it is the RCMP is asking.
MR. MYHRE: Could we do this, Mr. Fox? Could you send me a letter that says specifically --
THE ACCUSED: Sure.
MR. MYHRE: -- what you think should be unvetted? I'll reconsider the vetting.
THE ACCUSED: Yeah.
MR. MYHRE: And then we can come to court on May the 23rd. And if there's still an outstanding dispute, we can discuss it with Her Ladyship.
THE COURT: All right. That seems fair?
THE ACCUSED: Yes.
MR. MYHRE: My Lady, my only concern is that that's potentially quite a few issues to discuss in half an hour, if that's all that's set aside.
THE COURT: Well, let's -- I was trying to do this without intruding on the normal court day, but it may not be possible, and we are constrained by the fact that Mr. Fox will not be able to get here before about 9:30. And frankly, 9:30s can be a bit optimistic.
So another day is not going to be any better. Why don't we just say ten o'clock and we'll call it an hour. I'm not scheduled to be doing anything in particular that day. What day was that? The 23rd.
THE CLERK: So at ten o'clock, My Lady?
THE COURT: Yes. Do you want to phone down and just double check that with scheduling, Madam Registrar? And explain that Mr. Fox can't be here early and we're going to need at least an hour.
THE CLERK: He has to call me back, My Lady.
THE COURT: Have you discussed jury selection at any point?
THE ACCUSED: We've not.
MR. MYHRE: No. I was just going to bring that up.
THE COURT: That's something we do need to discuss. Not now but certainly at this next pretrial conference. Your experience has been with American courts, Mr. Fox?
THE ACCUSED: Yes.
THE COURT: It's -- it's very different here, particularly in jury selection. I don't purport to know American procedure, but I do know that the jury selection process here is a lot more straightforward than the American one.
THE CLERK: That's fine, My Lady.
THE COURT: All right. It's actually going to, I think, be at least an hour so --
THE CLERK: So should we start at 9:30 or --
THE COURT: No, we'll start at 10:00.
THE CLERK: Okay.
THE COURT: And I think book it for an hour and a half.
So do you have access to resources that would explain how jury selection is done here?
THE ACCUSED: I do. Typically what I've been doing so far is having my friend order me the books from Amazon. They have a law library at the jail but it's typically very out of date. So I'll go in there, find out which books exist, and then have my friend purchase them for me.
I have been reading somewhat on the jury selection. I did have a lot of questions because it did seem very different from the process in the U.S., but I'm coming to the conclusion that it's because it is just much more streamlined. Well, maybe not streamlined. Not as much control over jury questions.
THE COURT: Exactly. There's no opportunity to ask questions of the potential jurors --
THE ACCUSED: Right, right.
THE COURT: -- unless you are bringing what's called a challenge for cause. In order to bring a challenge for cause, you have to apply ahead of time to be able to bring one, and there is a notice requirement. I'm not sure offhand what it is but it -- you'd have to get on it very soon.
There are not many challenges for cause in this jurisdiction. There are some. And the main bases for cause are things like prejudice on the basis of ethnic background, or media publications about the case that might have caused a potential juror to form an opinion about the case that they would not be able to put aside in the trial.
THE ACCUSED: That I do have some concerns about.
THE COURT: Let me just finish explaining --
THE ACCUSED: Sure.
THE COURT: -- how a challenge for cause works.
If you wish the court to consider letting you challenge jurors for cause, you have to make an application and there are -- and you'll need an affidavit and so forth. And in this situation you would probably attach media reports. The test is not whether jurors have seen things in the media, it's whether, having seen them, they would be able to put any opinions they may have formed aside and judge the case impartially. And we rely on jurors to follow the instructions they'll get in the trial, which repeatedly tell them that, "If you've read anything in the media, seen anything on television about the case or about anyone involved in the case, that's not evidence." The only evidence is what they hear in this courtroom and that's the only basis on which they can judge the case. So they do get instructions to try and remedy the effect of anything they've read.
Nonetheless, there are cases where the extent of media publication has been extreme and jurors are put through a process in the challenge for cause procedure where they're asked questions.
Now, unlike what you see on American television, and I have no idea whether it's realistic or not, jurors don't get cross-examined on anything, they get asked a simple question, and it typically would be, in that type of situation, something like, "Would" -- or might be, "Have you read anything about this case in the media?" "Yes, I have." "Would you be able to set aside any opinions you may have formed and judge the case impartially on the basis of what you hear in court?" And the juror will answer and there will be two what are called triers who will decide whether that juror is impartial or not. The lawyers don't participate in that process, it's the judge who asks those fairly neutral questions. But it is a process that all of the potential jury members are put through if there's a challenge for cause.
One reason we have notice requirement for applications to bring a challenge for cause is that if we're using that procedure, we need more time for the jury selection, and we also need more jury panelists because the chances are greater that people are going to be excluded, so we -- the sheriffs will need to bring in more people for that process.
If you think it's something you're likely to pursue, you would need to get on it very quickly. The notice requirement is in the court's criminal rules. I don't have them here. I think it's not a great deal of notice. It might be 30 days before the trial, something like that. It's actually not enough notice because the jury notices will have gone out by then. And if we're going to need more jurors, better to know it sooner.
THE ACCUSED: I would say, though, that I think it's unlikely that I would put in the application for that.
THE COURT: All right. Now, if there's no challenge for cause, there is still a process in which you can challenge potential jurors, and so too can the Crown, but you don't ask them questions. You have certain very basic information from a jury list and it's on the basis of that and the simple appearance of the juror that you either indicate you're content with them or you challenge.
It's nearly 4:15. We should stop. There's a lot more to be said about the jury selection process, but I encourage you to start reading about it and considering how you are going to approach it.
If anything comes up that needs to be dealt with before May 23, kindly contact Supreme Court scheduling and I will make myself available to deal with it. Otherwise, we'll go over to May 23 at 10 o'clock, and we'll deal with those various issues.
Anything else we should address today?
THE ACCUSED: I would just like to apologize. It was brought to my attention that earlier in the day I erroneously referred to you or addressed you as Your Honour.
THE COURT: Oh, don't worry.
THE ACCUSED: Habit, that's all.
THE COURT: Thank you, but it happens all the time. It's very confusing for people.
Nothing else?
MR. MYHRE: No, My Lady. Thank you.
THE COURT: All right. Thank you. We'll adjourn.
(PROCEEDINGS ADJOURNED TO MAY 23, 2017, AT 10:00 A.M.)
Transcriber: K. Lowe