Legal Shit

Recent Posts

Popular Posts

Desiree Capuano & James Pendleton
250 E. Placita Lago Del Mago
Sahuarita, AZ     85629
Tel: 520-288-8200
desiree.capuano@gmail.com
japendletonjr@gmail.com

R. v. Patrick Fox - Trial Transcripts

Highlighting Legend
Perjurious testimony which defense counsel (Tony Lagemaat) and Crown Counsel (Mark Myhre) knew of
Critical statements - e.g. inciminating admissions
Statements of interest - e.g. testimony which Lagemaat should have known to pursue further or cross examine on, but didn't
Click on any highlighted text to display the associated comments/annotations.
27178
Vancouver Registry
In the Supreme Court of British Columbia
(BEFORE THE HONOURABLE MADAM JUSTICE HOLMES AND JURY)
Vancouver, B.C.
May 23, 2017
REGINA

v.

PATRICK HENRY FOX
PROCEEDINGS IN CHAMBERS
(Pretrial Conference)
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.
May 23, 2017
REGINA

v.

PATRICK HENRY FOX
PROCEEDINGS IN CHAMBERS
(Pretrial Conference)
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 SEVERANCE FOR CROWN BY MR. MYHRE:44
  • SUBMISSIONS RE SEVERANCE FOR ACCUSED BY PATRICK FOX:61

EXHIBITS

  • EXHIBIT 1 (on Severance Application): Burnaby RCMP Narrative Text Hard Copy45
  • MARKED A FOR IDENTIFICATION: Letter to Patrick Fox from Mark Myhre dated May 15, 20177
  • MARKED B FOR IDENTIFICATION: Document re {G*****} to be sealed24
  • MARKED C FOR IDENTIFICATION: Two documents re {SC*****} to be sealed25
  • MARKED D FOR IDENTIFICATION: Document titled "Jury Selection"37

RULINGS

  • Nil
Proceedings

BAN ON PUBLICATION - INHERENT JURISDICTION


Vancouver, B.C.
May 23, 2017

THE CLERK: In the Supreme Court of British Columbia, at Vancouver, this 23rd day of May, 2017, calling the matter of Her Majesty the Queen against Patrick Henry Fox, My Lady.
THE COURT: Thank you. Madam Registrar, just a moment, please.
MR. MYHRE: Pardon me, My Lady. Mr. Fox and I were just discussing a disclosure issue before you came in and I just didn't want to let it fall by the wayside.
THE COURT: All right. Would you rather we stood down briefly?
MR. MYHRE: No, maybe let's just move on with the pretrial conference. We can -- we'll pick this --
THE ACCUSED: Sure.
MR. MYHRE: -- up.
THE COURT: Well, if you would rather get it resolved while you're talking about it, that's fine, and I also have forgotten to bring something, so --
MR. MYHRE: Oh, okay.
THE COURT: -- I wouldn't mind the time as well.
MR. MYHRE: Okay.
THE COURT: All right. So we'll do that and we'll stand down for what, three or four minutes?
MR. MYHRE: We'll be -- we'll -- yes, it will take two more minutes.
THE COURT: All right.
THE SHERIFF: Order in court.
THE COURT: Thank you.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
MR. MYHRE: My Lady, I've typed out a list that includes the issues that were to be discussed today, as well as a few more issues that we need to discuss, and I think there may be one or two more issues that Mr. Fox needs to bring up. So what I propose to do is just go through them, go through this list one more time.
THE COURT: All right. No objection to that, Mr. Fox?
THE ACCUSED: No, My Lady.
THE COURT: All right. Go ahead.
MR. MYHRE: Your Ladyship had asked the Crown to get Mr. Fox a list of documents that we would be tendering at trial and I did that on the 11th. Your Ladyship, we'd also discussed the Crown being --
THE COURT: Now, just let me ask you about that, Mr. Myhre. You've given him a list of the document that you propose to tender?
MR. MYHRE: Yes.
THE COURT: And I take it Mr. Fox has received copies of all of those at an earlier time?
MR. MYHRE: They are all in the disclosure, whether they are sort in document format or in the format of the website we created.
THE COURT: I see. And --
MR. MYHRE: In fact, every document is on the website that Mr. Fox created.
THE COURT: And can you give me an idea of the volume of these documents?
MR. MYHRE: Yes, actually my assistant had it printed out this morning double-sided and a page and a half.
THE COURT: All right.
MR. MYHRE: I can advise there are approximately 10 blog codes, which would be one or two pages each. There are about 60 emails which range from one page to five pages, and then other documents on the website.
THE COURT: And is this the time to discuss whether there'll be any issue about admissibility of these documents?
MR. MYHRE: Well, I did have on the list a little further down.
THE COURT: All right.
MR. MYHRE: So we can didn't discuss it right now if you'd like.
THE COURT: Well, we're on the topic, unless there's a reason not to, perhaps now's the time.
MR. MYHRE: So, when I sent Mr. Fox the list of documents I also mentioned to him the general rule that obviously has to be -- these documents would have to be relevant in some way to the charges, and their probative value would have to exceed any prejudicial effect, prejudicial effect being things that make him just do nothing more than make him look like a bad person or unduly distract the jury by taking up too much time.
So, I did mention that general rule to him. I've been fairly selective. There are -- there are probably about a thousand emails, for example, on the website, and I have chosen about 60 from them. And there are probably about 30/40 blog books and I think I've chosen about 12.
THE ACCUSED: There's actually about 1,800 emails on the website, and about a little over a hundred blog posts.
THE COURT: All right.
MR. MYHRE: There is some content that I'm going to be vetting, in particular, from the blog posts. The blog posts, there'll be something that -- that -- something's written on the topic, say, for example, Desiree Capuano's potential employment, and then under every blog there's the opportunity for people looking at the website to comment.
Now, my intention is to vet the content of people's comments without -- while still leaving in their -- their -- their user name they signed in with and the date and time of their -- their blog posting because the Crown says it's relevant just to show that people are actually reading this material.
To some extent, I think what they say actually has some relevance to the extent that their thoughts might impact on Ms. Capuano, but the probative value is small so I'm just editing it. I'm not -- not trying to put that before the jury what random people think about this website. Some people like it, some people don't. People say lots of -- lots of things in those blog entries.
So, yes, I do think there needs to be some vetting, and that's the extent of the vetting I'm doing. I don't know if Mr. Fox has any -- anything he wants to add to that. I was thinking that it might be prudent for me to give Your Ladyship a copy of this -- this binder ahead of time so that if you see anything that you think is -- is -- that really shouldn't --
THE COURT: I think that's a good idea.
MR. MYHRE: -- go before the jury.
THE COURT: I think that would be a good idea, and perhaps that could be done, I think we're going to need to have another pretrial conference before the trial, and so perhaps that could be done before then --
MR. MYHRE: Yes.
THE COURT: -- and we can discuss it at the next pretrial conference. But perhaps it's worth this time canvassing, at least in a preliminary way, Mr. Fox, whether you have any concerns about these documents going in to evidence to be considered by the jury, and I'll just back up to what Mr. Myhre said about the really basic principles about the admission of documentary evidence.
Like all types of evidence, documentary evidence has to be relevant, in other words, it has to relate to the subject matter of the charges in some way, and so, for example, if these blog posts, emails didn't connect to you in any way, there was no way of showing that you had posted them or sent them, they wouldn't be relevant because they're just blog posts or emails by somebody, who knows who, so that wouldn't be relevant to the charges against you. And they need to be relevant in addressing the subject matter to the charges.
And, as Mr. Myhre says, there's a really fundamental rule of evidence that applies to all kinds of evidence, that if its probative value is less than its prejudicial effect, it doesn't go in. So what that really means is, if it's more harmful in a legally improper way than useful in the trial, then it doesn't go in, and it's for that reason, because of that rule that Mr. Myhre is proposing to vet out or edit out some of the content of the blog posts -- of the comments on -- on the blog because -- and I, of course, haven't seen them, but it may be that there are people expressing opinions that could be harmful to you, might taint the jury in some way, and yet those opinions are hearsay, the people who posted them aren't here to be cross-examined, it's not admissible, he thinks it's hearsay, and so its prejudicial end should come out.
Now, you've been nodding along and you're also holding something. Is there something specific you want to raise about this?
THE ACCUSED: Yes. Yes, there is, My Lady. First of all, what I'm holding was a copy of the letter and the list I received from -- from the Crown. The concern that I have with using any of the content from the website, first, is that I don't believe it directly relates to criminal harassment in that none of the content of the website was intended to be received by Ms. Capuano, and it's merely a public forum, so it's, in my opinion, nothing more than public free speech.
There is no threatening statements and, as I said, no statements that were directed to Ms. Capuano or to -- well, to Ms. Capuano's boyfriend, but I guess he's not relevant in this matter anymore.
Now the Crown has submitted at one point that they believe that the website constitutes indirect communication because people would go to the website and then from that they would be inclined to contact Ms. Capuano to ask her if she had read what's on the website or some other, and -- but I don't think that that falls under what Parliament intended by direct -- or indirect communication for the purpose of 2 -- 264.
THE COURT: Let me just look at the language again --
THE ACCUSED: Sure.
THE COURT: -- of 264. All right. So, if we look at 264(1), it's framed very broadly about engaging in conduct but it has to be conduct referred to in subsection (2) that causes the young person reasonably to fear for their safety. And then if we look at subsection (2), there are four types of conduct that may give rise to the offence. So I take it from what you're saying, posting on a blog cannot be any -- or creating a blog, making blog posts is none of these. Is that what you're saying?
THE ACCUSED: Correct, unless the content or the statements being posted on the blog post are being put on there for the purpose or with the intention of them being read by the complainant. For example, if I had posted messages on there that were directed to Ms. Capuano with the intention of Ms. Capuano reading them, but that's not the case with anything that's on the website.
THE COURT: All right. Can I just ask Mr. Myhre a question about the Crown's position concerning the charge? Does the Crown rely exclusively on (b), repeatedly communicating?
MR. MYHRE: No, My Lady, there's also conduct that the Crown says is threatening.
THE COURT: And separate from the blogs and emails?
MR. MYHRE: No, there are things in the blogs that the Crown says are not a threatening conduct and the emails.
THE COURT: All right. But, Mr. Fox, you're saying that the blog, and I apologize if I'm using the wrong terminology, the blog posts and the emails don't amount to communicating with Ms. Capuano because there's going to be no evidence that, I won't say you, but obviously the Crown will have to prove that it's you, you intended to communicate with her.
THE ACCUSED: In --
THE COURT: Is that your position?
THE ACCUSED: With respect to the website, yes. With respect to the emails, that is clearly direct communication. So, concerning myself right now, just with the content on the website, exclusive of any email communication, I disagree with the Crown about anything on the website being threatening conduct directed at the -- the complainant, and I think that that's probably something that the court would have to look at whatever blog posts or whatever content it is that the Crown is saying could be construed as being threatening.
THE COURT: All right. So your concern is about the documents going in is only about the website?
THE ACCUSED: Yes, only content on the website, not the emails, and part of the reason, or a large part of the reason that I would have a concern about the content on the website is I'm certain there's going to be some jurors that will find it offensive, but this isn't really a question or a matter of taste or speech being offensive, and I -- I don't want -- I wouldn't want the jurors to be influenced because they disagreed with my opinions or with my views on my ex-wife.
THE COURT: Mr. Myhre, I'm think -- do you have something else to say --
THE ACCUSED: No, that's all.
THE COURT: -- on that? All right. Mr. Myhre, I'm thinking this might be something that, although I've essentially received the arguments, I haven't seen the material and it might be useful for me to see the material and then perhaps hear from you both again, and make a determination of whether the material will go in or not. It sounds as though there's no objection to the emails going in or is there any objection on some other basis?
THE ACCUSED: Over all, I have no objection to the emails going in. I do have some concern though about the ability to authenticate any given email. As long as the emails that the Crown is submitting match or -- or are identical to the ones that are on the website, then clearly those are emails that were written by me.
However, there's really nothing to prevent Ms. Capuano from making up emails and claiming they were from me.
THE COURT: All right.
MR. MYHRE: Well, I can answer that simply. My intention at this point, and unless I discover from Ms. Capuano that there are additional emails between the two of them that don't appear on this website, I'm just entering the copies directly from the website.
THE ACCUSED: Then I -- I have no objection to that.
THE COURT: All right.
MR. MYHRE: The next item on my list, My Lady, you had asked or Mr. Fox had asked and you had directed that I should enumerate specifically, as the Crown says, that his actions constitute criminal harassment, and I did so in a fax to Mr. Fox on May the 15th. I think I set out 10 specific ways that I say his conduct amounted to criminal harassment. Mr. Fox has something to say about that.
THE COURT: Now, is that something I can see that might be helpful to me in managing the trial, understanding the context of the trial better?
THE COURT: Thank you. Is there any objection to that being marked as an exhibit for identification, Mr. Myhre?
MR. MYHRE: It seems like a good idea, except --
THE COURT: You haven't got another copy of it.
MR. MYHRE: -- could you make me a copy of that, please?
THE COURT: I am guessing that Madam Registrar might be willing to make us a copy. Thank you.
THE CLERK: Mark that as Exhibit A for Identification, My Lady?
MARKED A FOR IDENTIFICATION: Letter to Patrick Fox from Mark Myhre dated May 15, 2017
THE COURT: All right. Does that answer your question, Mr. Fox?
THE ACCUSED: Well, I'm -- there seems to be possibly some misunderstanding or maybe miscommunication on this issue because the uncertainty was with respect to the term psychological harm or psychological safety, and it was my understanding that what Mr. Myhre was supposed to provide me was some cases or some information to help clarify how he was going to -- or how he felt or how the Crown felt that I was psychologically harming Ms. Capuano.
THE COURT: Now, just stop there for one moment. I remember you raising that --
THE ACCUSED: Right.
THE COURT: -- and I actually was going to come back to this as well. I've looked at some standard jury instructions, but as I got more closely into the issue, well, actually before we get to that, can we consider that a separate issue?
THE ACCUSED: Sure.
THE COURT: And get to it in just a moment, but this fax that Mr. Myhre has sent to you outlining the ways in which he said -- he says -- what the Crown says you've caused Ms. Capuano to fear for her safety, is there anything that confuses you or concerns you about what he's outlined?
THE ACCUSED: No, no, I'm clear on what he's saying in here.
THE COURT: All right. So let's turn to the question you raised about, well, what does psychological harm mean, and as I went away looking to help answer that question I realized I need to ask you where are you getting that term from? It's not in s. 264.
THE ACCUSED: Right. I believe it was first brought up in R. v. McCraw [phonetic] which was a Supreme Court case from the '80s? At any rate, ever since then all of the courts have consistently ruled that psychological harm is generally as legitimate or valid as physical harm in matters relating to uttering threats or criminal harassment or similar such offences.
Now, in this instance, both Ms. Capuano, and I'm sure the Crown, openly admit that there's never been any threat or attempts at physical harm, so really their entire case can be based only on this concept of psychological harm, and since the relationship between Ms. Capuano and myself is not one of power or the other, I'm very unclear on how it is that the Crown can be suggesting that I could psychologically harm her. I mean, from the material that I've read on that matter, particularly when she is claiming that her -- my opinion means nothing to her and that she doesn't care what I think or I say.
THE COURT: Well, I think again you're -- you're quite right about your reading of the McCraw case --
THE ACCUSED: Right.
THE COURT: -- but again I'm not sure, and I can certainly hear from you and from Mr. Myhre, I'm not sure that translates into the charge that you're facing because the words of the Criminal Code for criminal harassment, well, there's no mention of harm. It's causing Ms. Capuano, through your conduct, to reasonably fear for her safety or the safety of someone known to her.
THE ACCUSED: Right. From the cases that I've read, in the instances of criminal harassment, it's not a -- it's not psychological harm, but the courts have stated that fear for safety includes fear of psychological harm.
THE COURT: I see. So psychological safety is essentially what you're saying?
THE ACCUSED: Yes. And --
THE COURT: And so you're saying, in the same way that physical harm can include psychological harm, your fear for your physical safety can include fear for your psychological safety?
THE ACCUSED: Yes.
THE COURT: All right.
THE ACCUSED: Now, if this was a situation where Ms. Capuano was, say, financially dependent on me or we were in love or lived together or something, maybe then I could understand, but we have no real emotional or psychological bond with each other, so I'm -- I'm having a lot of difficulty in understanding how the Crown is coming up with this idea that anything that I could do could psychologically harm her. Like, from what he's listed in here, and from based on her own statements in her emails, she doesn't care about my opinion, so my taunting her really I don't see how that could harm her psychologically.
THE COURT: Well, Mr. Myhre's fax that we marked as Exhibit A talks about, for example, in number 2, "taunting Ms. Capuano to cause her distress."
THE ACCUSED: Mm-hmm.
THE COURT: Perhaps that is what the Crown means by trying to cause psychological harm. And, of course, number 1 is essentially a stated purpose of causing some psychological harm. Number 7, making statements, now I appreciate that this is all the Crown's position and yours may well be very different, but this is the Crown's position, number 7 [as read in]:
Making statements that cause Ms. Capuano to fear that she's being watched, fear that she's being tricked...
Arguably, that could be psychological harm. So are you asking -- are you saying that you don't understand what the Crown is trying to say in this or are you saying you can't see how they can possibly prove it?
THE ACCUSED: The latter. I understand what it is that they're trying to accomplish with it, but from also speaking with other attorneys over the past few weeks, I -- I have difficulty seeing how they're possibly going to be able to prove anything close to it. But I think at this point the information that I have now clarifies some of the issue.
THE COURT: All right. Well, we'll leave it at that for now, and if, as you reflect on it, you have more questions or concerns, raise them next time or the time after. This isn't a one-shot thing. The idea of this pretrial conference, and I -- and we will have at least one more, and during the trial we'll have discussions. The idea is to help you conduct your defence, and it's not going to be a situation where I say, well, I told you that two weeks ago, so I'm not saying anymore. I want to make sure that you have a fair trial, and that you're in a position to conduct your defence. All right.
THE ACCUSED: Thank you.
MR. MYHRE: My Lady, on that topic, obviously having had the preliminary inquiry, thought about this case a fair bit and I have done quite a bit of research into psychological harm in the context of criminal harassment.
THE COURT: Yes.
MR. MYHRE: And so what I intend to do is provide Your Ladyship with probably a half-dozen of the most relevant cases that look at what that means and for the purpose of assisting in drafting a -- a jury instruction, and I know that Your Ladyship will canvass with both myself and Mr. Fox the jury instructions, but I -- I know -- and I know Mr. Fox does his own research so I would suggest that if he has any cases that he wants to point out to Your Ladyship --
THE COURT: All right.
MR. MYHRE: -- ahead of time when we're talking about what that term means that it might be helpful since it's not something that comes up every day.
THE COURT: Good idea. At what point do you expect to have those cases for me?
MR. MYHRE: I could have them to you by the end of the week.
THE COURT: All right. Then that might be helpful. Sooner is always better, so how do we want to do that? Are you able to get the material to Mr. Fox?
MR. MYHRE: I can just -- I can just fax the cases to Mr. Fox, and him send Your Lady a mailed copy.
THE COURT: Thank you.
MR. MYHRE: The next topic on the list that I had was just canvassing the issue of appointed counsel. There was a little hiccup, but I don't know if we need to go into it, but my understanding is that it's on the rails.
THE ACCUSED: I don't understand what the idiom means.
MR. MYHRE: Things are as they should be.
THE ACCUSED: Yes.
MR. MYHRE: So counsel has been appointed and Mr. Fox has been in touch with them, they appear to have a working relationship, at least that's my understanding.
THE ACCUSED: Yes.
THE COURT: Is it appropriate to advise me who counsel will be? Who's conducting the cross-examination?
MR. MYHRE: Go ahead.
THE ACCUSED: Oh, yeah, it's Tony Lagemaat with the firm Johnson Doyle Sugarman Ferguson.
THE COURT: Can you spell it? Sorry?
THE ACCUSED: Lagemaat is L-a-g-e-m-a-a-t.
THE COURT: Thank you.
MR. MYHRE: And so he was -- I think it was just early last week that it was confirmed that he would be doing the cross-examination the next day we occurred and all of the disclosure, and printed copies of Ms. Capuano's statements so -- and I've also sent him the list of the documents the Crown intends to rely on, and basically he knows that he can ask me if he needs anything.
THE COURT: Thank you, Mr. Myhre. So everything fine on that point, Mr. Fox?
THE ACCUSED: Yes. Yes. Things have been moving a little bit slowly due to some complications we had with LSS, but we got past that. I'm a little concerned because it is getting close to the trial date now. Hopefully his schedule will be conducive with it so.
THE COURT: His schedule fits with the trial though?
THE ACCUSED: Oh, yes, yes, but --
THE COURT: Okay.
THE ACCUSED: -- with respect to preparation time.
THE COURT: All right.
MR. MYHRE: And I've tried to, I mean I'm sure you have as well, but when I -- when Mr. Lagemaat and I discussed getting him the disclosure [indiscernible] to him, there is a lot to go through.
THE ACCUSED: Likewise when I spoke with him, I pointed out that much of what he's going to receive is probably completely irrelevant, and so when I meet with him I'll be able to direct him towards the things that I think are the most relevant.
THE COURT: All right. And while we're on the subject of appointed counsel, that reminds me I have an edited copy of the reasons that -- the brief reasons I gave making the order that counsel be appointed, and I can give you copies. Madam Registrar, if you could hand these, please, and there's one for the file.
MR. MYHRE: Thank you, My Lady.
THE ACCUSED: Thank you.
THE COURT: Now, you'll see on the front page there are two bans on publication, and I'd like to just spend a moment or two on these now, partly to make sure that I've got them accurately, and partly to make sure that it's understood what these mean for the purposes of the trial.
The first one says that there's an automatic publication ban under s. 648(1) of the Criminal Code, and you can read that. And essentially, Mr. Fox, s. 648(1) of the Criminal Code says that anything that happens in a jury trial, when the jury is not present, cannot be the subject of publication until the jury retires, is the word, to consider its verdict at the end of the trial, and I'm sure you can understand the reasoning behind that. We don't want things going on in court when the jury is out because an argument comes up instantly appearing on the television that the jury sees when they go home in the evening.
But once the jury has retired, as it's called, they're kept sequestered, and you may or you may not know this, Mr. Fox, but they are not able to see the news, they don't see newspapers, they don't have cellphones. They're really kept in a little cone of silence for their deliberations. And that even includes overnight if they need to go overnight.
So, at that point, there can be publication, but the jury won't see it.
So, for your purposes, Mr. Fox, that means that at all times, it's not just once the trial starts, but it's also now, you can't be blogging about this case or anything like that. You are just like a newspaper, subject to that restriction. All right?
THE ACCUSED: Thank you. May I ask for a clarification on one point, though? On the second paragraph identifying Ms. Capuano as DC?
THE COURT: Yeah, that one I -- I'm just getting to.
THE ACCUSED: Oh, okay. Sorry.
THE COURT: And what's your concern about that one?
THE ACCUSED: Well, the sentence that follows, this publication ban applies indefinitely, now the first one of course expires after the trial is complete?
THE COURT: Yes.
THE ACCUSED: The second one though -- well, these publication bans apply only to this hearing, right, the 486.3 hearing?
THE COURT: They apply -- well, let me --
THE ACCUSED: Sure.
THE COURT: -- first of all, make sure that Mr. Myhre, it's your understanding that this publication ban was made at some point, I understand. The court record indicates it was, but I'm not sure that I was the one who made it.
MR. MYHRE: And then I'm sure that's correct. I just --
THE CLERK: It was made on November the 7th last year, My Lady.
THE COURT: All right. So that was made, and that is, I assume, the Crown and Ms. Capuano's wish that there be no publication of her name.
MR. MYHRE: That's certainly our wish.
THE COURT: All right. So the way it works, Ms. -- Mr. Fox, is it only applies to publication, so it only applies to news reports or radio reports or blogs or anything that goes out into the greater world. In the courtroom we use her name, we don't call a witness DC to the witness stand, and likewise when I'm instructing the jury I'll be talking about Ms. Capuano. You will use her name, Ms. Capuano. Mr. Myhre will be using her name, Ms. Capuano.
It's simply publication that has to use DC, not her name, and it's founded in sect -- it's an order, it's a discretionary order, not necessarily made in every case, but there's a strong presumption in favour of making that type of order when it's asked for. And the idea is to protect the privacy of people who are alleged victims of certain kinds of offences where there may be strong privacy interests involved.
All right? Does that answer your question about that second one?
THE ACCUSED: Not entirely. I mean, clearly I intend to write about this entire experience after it's all finished so I just -- I would like to clarify the publication ban on any identification or identifying characteristics of Ms. Capuano if it only applies to that 486.3 hearing or to all of the proceedings in this matter?
THE COURT: It applies to all of the proceedings.
THE ACCUSED: Okay.
THE COURT: And the idea of putting it on this -- these reasons is just to make sure that the reader of these reasons knows about it.
THE ACCUSED: Right.
THE COURT: But it does apply more generally to everything.
THE ACCUSED: Okay.
THE COURT: So, if you are planning to publish a blog or whatever it is, after the trial or before or during, you will not be able to use Ms. Capuano's name. You'll have to use initials.
THE ACCUSED: When writing about any matters relating to the proceedings, correct?
THE COURT: Correct.
THE ACCUSED: Okay.
THE COURT: And the wording that the Criminal Code uses and it's repeated in the wording of the ban is quite broad, so you need to be careful about -- well, you -- let -- let me put it a little differently.
You couldn't be clever by saying "Well, what happened in court related to DC, and I'm obliged to use initials because of the ban on publication of her name, but now I need to tell you about something that happened in my personal life with a woman called" using her full name because clearly you would have made it obvious to the reader who DC was. All right. So that would violate the ban, in my view. So you need to be very careful. It's any information --
THE ACCUSED: Mm-hmm.
THE COURT: -- identifying her that it is banned from publication.
Now, the publication ban is indefinite, subject to further order of the court. If you get to the end of the trial and it's your view that events have unfolded in such a way that you ought to be able to publish her name, or information identifying her, it would be open to you to apply to have the publication ban changed, but you would have to make that application, you'd have to persuade me and, as I said, there's a pretty strong presumption in 486.5 that you'd be facing.
THE ACCUSED: I understand everything that you've stated, and I -- obviously I intend to respect and comply with the laws on the matter, but since she has been in the media quite extensively about this, I mean, it's -- I'm not sure how effective a publication ban would really be though. I mean, she's -- the RCMP themselves had to contact her and tell her to stop doing interviews in the media after I was arrested. But certainly I wouldn't violate the order.
THE COURT: All right. Thank you. And what you've just said might be something, if you were to apply to have the ban changed, that might be something you would use to support your application.
THE ACCUSED: Thank you.
THE COURT: Mr. Myhre, anything else about the bans on publication?
MR. MYHRE: So the next issue on my list was the issue raised by Your Ladyship last day about whether these two charges should be on this indictment.
THE COURT: Yes.
MR. MYHRE: So I've given that a lot of thought, discussed it with quite a few colleagues, and here is what the Crown position is.
We should have a severance application. The Crown argues that the evidence that Mr. Fox moved is guns to California is relevant to his intention on the harassment charge, and I think this has to be fully litigated. It's not going to take the Crown a long time to make submissions, but I'm not making full submissions.
If Your Ladyship were to rule that it's not relevant, the Crown would take s. 93 off the indictment. And if Your Ladyship were to rule that it is relevant, then of course Your Ladyship would have to consider all of the other factors relevant to severance in deciding whether nonetheless it should be taken off the indictment.
So, yesterday, I sent Mr. Fox a fax stating that position, and providing him with the leading Supreme Court of Canada case on severance, the last of Last. I don't have the reference right on me. Mr. Fox has my letter.
THE ACCUSED: But it doesn't have the full citation on it. Oh, actually, I have the case.
MR. MYHRE: Thank you. The site, My Lady, is 2009 SCC 45. And the primary authority, and it may be on the only authority to rely on on the application when it comes to relevant is the case of Taylor, 2014 BCCA 138.
THE COURT: And you say relevant to Mr. Fox's intention to harass?
MR. MYHRE: Yes. So I can -- I can sketch it out in a couple of sentences for Your Ladyship, but I think really you have to see the specific emails and blog posts that the Crown relies on to say that the fact that he shipped his firearms to California is relevant to his intent.
In brief, Mr. Fox reminded Ms. Capuano on several occasions that he was in possession of firearms in Canada. He reminded her that he could cross the border when he liked, and he made a blog post in which he discussed the logistics of killing Ms. Capuano with his firearms, ultimately concluding that it was logistically not feasible, in the blog post, but nevertheless the Crown says when you have a person saying those things and then actually taking a step consistent with those things, it shows what their intention was with those words, those words being amounting to threatening conduct.
So that, in brief, is -- is why the Crown says it's relevant. But I think both myself and Mr. Fox need a change to make full submissions, and I might have suggested we do it today, except I only mentioned this to Mr. Fox yesterday so that's not enough time to prepare, but obviously we'll have to do it very soon. I think Mr. Fox wants to add something.
THE ACCUSED: I respectfully disagree with Mr. Myhre. I don't think that such a hearing is necessary at all. I have no interest in severing the counts. With the evidence that I intend to present to the jury at the trial, I think that it would work very much in my favour having the counts together.
THE COURT: Can you tell me why?
THE ACCUSED: Yes.
THE COURT: And -- and before you do that --
THE ACCUSED: Yeah.
THE COURT: -- bear in mind, and I'm pretty sure I've said this before, you are not obliged to disclose your defence to me. You're not obliged -- or to anyone.
THE ACCUSED: Mm-hmm.
THE COURT: You're not obliged to even say whether you plan to testify or call witnesses, and one of the reasons for that is that you don't make that decision until the Crown has closed its case, and you might decide that there's nothing there in the Crown's case or it might be that I decide that there's nothing there in the Crown's case. Since you are representing yourself, I'll have an obligation to consider that at the end of the Crown's case.
So you're not obliged to tell me anything about your defence. You can keep it in your back pocket and you've -- there's no negative inference to be drawn from that.
If you wish to tell me now to give context to what you want to say about severance, you can do that.
THE ACCUSED: For example, with respect to Mr. Myhre's statements a moment ago about a blog post that he claims is some type of plan of how I would go to Arizona and kill or assault Ms. Capuano with my own firearms. To state that that blog post even infers that is a gross misrepresentation and, when that blog post is presented to the jury in full, they will see that, given the timing of it, it was a few days after I had done the CBC interview when Ms. Clancy, Natalie Clancy, the journalist at CBC had informed me of some of what Ms. Capuano was alleging. So that blog post was a response to the allegations that Ms. Capuano was making, and about how ridiculous I believed that it was.
For example, in the State of Arizona where I used to live, any person can purchase a firearm, and there's no -- if you don't buy it from an FFL, Federal Firearms Licenced dealer, there's no background check, you just buy it on the spot.
So it would be completely irrational and illogical for me to use my own Canadian registered firearms that can be traced back to me very easily to do something like that, and that's a point that I bring up in that blog post.
The other -- the other facts that I believe is going to be very significant on this point is the Crown keeps mentioning that I sent my firearms down to Los Angeles, but they don't mention because I actually sent 25 boxes of personal items, because I was in the process of moving out of my apartment. There was nothing significant about the firearms going to Los Angeles. They were just one of all of my other personal property that was going down there.
So I think that, when these facts are put before the jury, I think that a jury of reasonable people would see that the Crown is really stretching here, they're really trying to make this into something that it really isn't.
Also, on this issue of the s. 93, the Crown's allegation is that I had the firearms in my possession at the shipping company, yet nobody at the shipping company ever saw any firearms as well. There was parts of a rifle, but that's not restricted, so that doesn't fall under the ATT, but the Crown is going to have to prove that the firearms and I were at the shipping company at that time, and they would also have to prove that I wasn't on my way to the shooting range or to a border after leaving the shipping company, which again I think is going to be very difficult.
So, for those reasons, I don't think it's necessary, in my opinion, to sever the counts.
THE COURT: All right. Thank you. Mr. Myhre, I was the one who raised the issue, and I raised it out of concern and, of course, having only limited information of the case at that point that I raised it out of concern that evidence admissible in relation to Count 2, the firearms charge, could be more prejudicial than probative in relation to Count 1.
Mr. Fox seems to think that that would not be the case. I still have to wonder whether, in my role of assisting Mr. Fox to ensure he has a fair trial, I need to look more closely at the issue. It sounds like the Crown is not -- you're suggesting the severance application, but you're not seeking severance. I think probably the approach you're suggesting is the fairer one in which I look at the matter through the eyes that I originally had when I was concerned there may be an unfairness. I'll obviously take very much into account Mr. Fox's submissions that no, it actually may help him to have both counts on the indictment, but thus far it's not clear to me why that's the case, although I do understand that Mr. Fox is doubting that the Crown is going to be able to prove Count 2.
I suppose what I'm saying, Mr. Fox, is I understand that you're saying you don't think the Crown will prove Count 2, but the scenario I'm considering is saying we have a trial only on Count 1 at this point, Count 2 waits for a different trial if the Crown decides to pursue it, and so evidence about firearms going to the U.S. wouldn't be tendered in this trial.
THE ACCUSED: Mm-hmm. But the Crown's position seems to be that they believe the facts that the firearms did make their way to Los Angeles is going to be relevant, even though Ms. Capuano knew nothing about that until after I was arrested. And so they're going to try to argue to provide that evidence at the criminal harassment jury -- or trial anyway, and am I correct on that?
MR. MYHRE: More the Crown's position is that, if Your Ladyship were to rule against the Crown and say that that is not relevant, we would take --
THE COURT: Then --
MR. MYHRE: -- s. 93 off the indictment.
THE COURT: And the Crown would not then try to lead the evidence saying, all right, well, 93 is off the indictment but we still think it's relevant, so we're going to -- to Count 1 so we're going to lead it anyway. The Crown wouldn't do that.
THE ACCUSED: Admittedly, one of the concerns that I have if the counts are severed is that, if the Crown proceeds with the s. 93, which I'm sure that they will, then that would cause me to either remain in custody, although I likely wouldn't be detained just on the s. 93 charge, but then I would be released on bail potentially and be subject to further bail conditions until that matter gets resolved.
And not that I dislike British Columbia, but I'm not sure, after all of the media attention that this has gotten, that it's going to be in my best interests to remain in Vancouver. I may end up going back to California or to Toronto or somewhere, but if I'm stuck here on bail for another year and a half on some - well, in my opinion - petty and ridiculous charge, then that's going to cause a lot of problems for me.
THE COURT: That's something else that I would obviously consider. I do think it's an important enough issue that I need to review it closely, and so the best way of doing that is to, as Mr. Myhre suggests, have a severance application. It'll be an odd one because, I mean, it sounds as though nobody is actually seeking severance, but the Crown will do the fair thing, and say here are the reasons that you could consider ordering severance, meaning that the two charges are divided and go on separate indictments. And obviously, Mr. Fox, you can argue against it, and I will make a determination about what is the fair thing to do so that your trial will be fair.
THE ACCUSED: Okay. And I apologize I'm not entirely familiar with the protocol for when I should stand or sit.
THE COURT: Generally people stand when they're speaking to the court, and generally they stand when the court is speaking to them specifically.
THE ACCUSED: Okay.
THE COURT: But in a pretrial conference such as this, we're a little less formal. It's not necessary to be popping up and down all the time.
THE ACCUSED: Okay, thank you.
THE COURT: But you can, if you wish, and generally lawyers are so used to doing that, that they can't stop themselves, so.
MR. MYHRE: Okay.
THE COURT: I think we're going to be a little while still, and at some point we should take a morning break. Mr. Myhre, do you have any time limitations?
MR. MYHRE: I have all morning. In fact, I have all day if you need it.
THE COURT: I think we'll take the morning break now, unless there's something that would be a good idea to deal with quickly before we break.
MR. MYHRE: No, there are three or four more things we need to talk about.
THE COURT: All right. And we'll need a date for a severance application.
MR. MYHRE: Yes. And I thought maybe we should wait until the end of the pretrial conference to see so we know what issues will have to be dealt with or as much time we'll need.
THE COURT: Okay.
(PROCEEDINGS ADJOURNED FOR MORNING RECESS)
(PROCEEDINGS RECONVENED)
MR. MYHRE: My Lady, I thought next we might address the issue of disclosure that was brought up and vetting -- particular vetting of certain statements that was brought up at the last pretrial conference.
Mr. Fox and I have had some back and forth. As a result of that, I did unvet some things, but I've specifically listed about five things that I said I would not unvet without an order from the court. So I think the most expeditious way to proceed might be for Mr. Fox to specify which of the six items I'm still refusing to unvet that he would like unvetted.
THE ACCUSED: First, I'm going to assume that you don't have a copy of the letter with the points here, so...
THE COURT: I don't.
THE ACCUSED: Okay. The first one, though, and these all pertain to an interview that Ms. Capuano had done with the RCMP, they had gone down to Arizona, interviewed her in person, and there are a few sections from that that were vetted out. According to Mr. Myhre, paragraph 690 to 699 contain what he says are Ms. Capuano's views of {G*****}'s views and that, for that reason, they're clearly irrelevant.
Now, I can't say whether or not I agree that they're clearly irrelevant because obviously I don't know what they contain. I was hoping that perhaps the court might be able to review those statements, and then the court can make a determination whether or not it might be something relevant.
MR. MYHRE: So maybe we can just do this one at a time. So I have unvetted --
THE COURT: All right.
MR. MYHRE: -- copies that Your Ladyship can see. I suppose they should probably be marked and then put in an envelope --
THE COURT: They should.
MR. MYHRE: -- at some point but --
THE COURT: So, Madam Registrar, were you able to make a copy of this document?
THE CLERK: I have, yes.
THE COURT: I know you've had a lot to deal with. Thank you. That's the one that's going to be Exhibit A.
THE CLERK: Yes.
THE COURT: And then, Mr. Myhre, you now are going to give me an unvetted copy?
MR. MYHRE: Yes, and there'll be four documents.
THE COURT: All right. Perhaps give me the first one, and do you have two copies of it or not?
MR. MYHRE: Unfortunately, I don't.
THE COURT: All right. Well, give me the first one, please, if you would, or does that leave you with none?
MR. MYHRE: Actually, I did have it. I'll take a look. What you see on here, My Lady, is there's a box around the material that's been vetted, so Mr. Fox doesn't have what's in the box.
THE COURT: So this is going to be Exhibit B, and it needs to be sealed, subject to what I say about it. All right. I'm just going to take a quick look. And you say this is an RCMP interview?
MR. MYHRE: Yes.
THE COURT: Is there any plan to introduce any evidence from {G*****}?
MR. MYHRE: No.
THE ACCUSED: I would love to be able to have {G*****} testify, though I don't think that that's something that I would ever be able to get approval on. Also I wouldn't want to put him in a position where he might have to say things regarding Desiree or Ms. Capuano, and then have to go home to her house and...
THE COURT: And could you read me again, Mr. Fox, the explanation Mr. Myhre gave you --
THE ACCUSED: Certainly.
THE COURT: -- for redacting or vetting out this portion?
THE ACCUSED: It says [as read in]:
Paragraphs 690 through 699 contains Ms. Capuano's views of {G*****}'s view. In my opinion, this is irrelevant and will -- and I will not disclose it without a court order.
I should mention, though, you're probably aware, but much of the animosity and the issues between Ms. Capuano and myself over the years did stem from the child custody disputes and her conduct toward {G*****} over the years.
THE COURT: I agree that the description Mr. Myhre has given you, Mr. Fox, is accurate, and so I see no basis for viewing this passage as relevant, and I'll keep in mind as the trial progresses that sometimes the basis for relevance emerges, but based on what I now understand the case to be and to involve this is not relevant and it's essentially an opinion of someone who's not an expert based probably on hearsay. It's properly vetted out.
THE ACCUSED: Okay.
THE COURT: So, Madam Registrar, this is going to be Exhibit B, but I will want a copy of it, please, and it needs to be sealed. Thank you.
MARKED B FOR IDENTIFICATION: Document re {G*****} to be sealed
THE ACCUSED: And the next -- the next two, according to Mr. Myhre, pertain to {SC*****}, who is Ms. Capuano's other son from another marriage. If that's correct, then I don't believe that they would have any relevance and I would have no issue with them not being disclosed. That would be paragraphs 933 through 938, and then 942.
MR. MYHRE: Madam Clerk, [indiscernible/away from microphone].
THE COURT: So you say that's 933 to 938?
THE ACCUSED: That's correct, yes.
THE COURT: And 942?
THE ACCUSED: Yes.
THE COURT: There's also a redacted portion at 962.
THE ACCUSED: Yes, that's the next point. That one I think I might have an issue with.
THE COURT: All right. And again give me Mr. Myhre's given reason --
THE ACCUSED: Oh.
THE COURT: -- please.
THE ACCUSED: Certainly. For 933 through 938 and for 942 as well it says [as read in]:
Relate to {SC*****} and are both private and irrelevant. I will not disclose this without a court order.
THE COURT: Private and irrelevant?
THE ACCUSED: Irrelevant, yes.
THE COURT: All right. That's a fair description.
THE ACCUSED: Okay.
THE COURT: And so those we'll treat in the same way, so that's going to be -- there's -- they fall on two pages, so we'll call them both Exhibit C, and they should be kept again sealed and I would like a copy, please.
MARKED C FOR IDENTIFICATION: Two documents re {SC*****} to be sealed
THE COURT: And then while we're still at those second of those pages, paragraph 962, is that one that you have a concern about?
THE ACCUSED: Yes. Now, the description provided in here states [as read in]:
In this statement Ms. Capuano expresses plans for her own safety. In my view, it would jeopardize her safety to tell you what those plans are and I will not disclose it without a court order.
Now, I should say on this, I suspect what she's talking about there is her plans or her intentions after I was arrested to change her name and disappear, and if that's the case, she's already stated that in an interview that she did with Laura Kane of the -- the Canadian Press, which was then published in numerous newspapers throughout the country where she talks quite openly about her intentions to change her name and disappear with our son {G*****} and start a new life.
Now, if that's what she's talking about in here, I think it's very relevant because one of the -- one of the goals I have is to prove to the jury that almost, if not every allegation she's ever made against me have actually been things that she, herself, was doing that there's no evidence that I have ever done, and this would be a perfect example of that. In her RCMP interviews, as well as in her news media interviews, she continuously insists that, if I had our son, I would disappear and change my name, and she'd never hear from us again. Though, in reality, when I stopped using the name Richard Reiss, after coming to Canada, and went back to using the name Patrick Fox, I immediately notified her of that, and even provided her photocopies of my identification.
So I think if there's any evidence of any history of such bad faith, it's all on her side, not on mine. And this is certainly something I would want to be able to show the jury.
MR. MYHRE: So my understanding, and Mr. Fox will correct me if I'm wrong, my understanding of what he's saying is that what's in that vetted portion says something about disappearing with {G*****}, it would be relevant to your --
THE ACCUSED: No, no, not --
MR. MYHRE: -- [indiscernible/overlapping speakers].
THE ACCUSED: -- in disappearing with {G*****}, but if -- if what she's saying in that statement pertains to her intention or play to change her name and then disappear or start a new life in such a way that I can't find her, but the important part being that she would change her name and disappear because that's something that she keeps accusing me of doing even though there's no evidence that I've ever done anything like that.
THE COURT: All right. So on the second page of Exhibit C, at paragraph 962 there's a redacted portion, a vetted out portion, and I'm not going to say much about it except that I conclude that it should remain vetted out.
THE ACCUSED: Okay.
THE COURT: And I encourage your submission on that, Mr. Fox, please. So, Madam Registrar, I can give you these two which are together Exhibit C.
MR. MYHRE: Those are the only ones you take issue with?
THE ACCUSED: Yes.
MR. MYHRE: Well, I think that concludes that item --
THE COURT: All right.
MR. MYHRE: -- to be dealt with. The next issue -- I think that deals with all the issues that we had discussed except for Your Ladyship discussing jury selection with Mr. Fox, but there is -- he has some other issues, I have one other issue to bring up, and it's the witnesses.
THE COURT: All right.
MR. MYHRE: When we moved the trial up to June 12th, my understanding from Ms. Capuano was that that no longer worked for James Pendleton, and so I want to alert Mr. Fox that he won't be coming up to Canada. He has to work that week. He was coming for the purpose of accompanying Ms. Capuano, and since he won't be able to do that, he won't be here, I won't be asking him to testify.
The second witness, there are two witness issues --
THE COURT: What -- what's -- why are you raising that? Were you expecting --
MR. MYHRE: Because I had previously told Mr. Fox that he -- he had told me he wanted James Pendleton, who is Ms. Capuano's current partner, to testify. Mr. Pendleton has given a statement to the police. I wasn't intending to call him as a witness, myself, but because Mr. Fox wanted him, I -- I did call him as part of my case because he was going to be coming here anyway. He wouldn't be under a subpoena, but he was going to be here. That situation has changed.
THE COURT: All right. Does anything flow from that? Does that cause you concern, Mr. Fox?
THE ACCUSED: No, no, it doesn't cause me concern. It's not unexpected in the slightest bit. At the previous hearing when we were discussing witnesses, Mr. Myhre, I noticed he didn't mention Mr. Pendleton, and I was going to ask him about that because he has previously said that Mr. Pendleton, that he would call him to testify, but I see now that he's officially not going to be coming, so.
THE COURT: And he's not a witness you wish to call?
THE ACCUSED: I would have liked to -- to speak with him or to examine him, yes, but I can do without. I -- I believe that I have sufficient evidence relating directly to Ms. Capuano. I don't think that it's going to be particularly necessary to -- to have his statements as well.
MR. MYHRE: The second witness issue relates to Constable Dupont, and the Crown was intending to call him to talk about what he said to Mr. Fox in the summer of 2015. So, Mr. Fox was arrested in the summer of 2015, he was interviewed by Constable Huggins [phonetic]. During that interview, and what Crown says is relevant here was some things that Constable Huggins said to Mr. Fox, things like "Ms. Capuano is scared", so obviously those would go to what Mr. Fox would have known to be the case at that time.
Unfortunately with moving the trial, Constable Huggins is in Ottawa on training, and the way that the Crown intends to get around that or deal with that problem is Constable Dupont was also involved in the arrest and he was actively monitoring the statement at the time, so he can attest to what Constable Huggins told Mr. Fox in the summer of 2015.
THE COURT: So essentially he would substitute in for Constable Huggins, and say that he had -- he witnessed the interview as it took place --
MR. MYHRE: Mm-hmm.
THE COURT: -- and presumably there's a video recording of it, is there?
MR. MYHRE: Yes.
THE COURT: All right.
MR. MYHRE: And so I do want to emphasize that the Crown's not tendering Mr. Fox's statement there. What we are tendering is the evidence of what Mr. Fox was told in terms of warnings and what was going on with Ms. Capuano because it would be relevant to whether Mr. Fox knew she was harassed.
And so the Crown position will be that the things that Mr. Fox said in response during that interview are irrelevant, and are inadmissible because he can't tender his own statements, subject, I think, to providing appropriate context to what was being said.
THE COURT: All right. Do you understand all of that, Mr. Fox?
THE ACCUSED: Yes, I do. Yes.
THE COURT: And do you have any concern with that, with Constable Dupont coming instead of Constable Huggins to say essentially what you were told --
THE ACCUSED: I --
THE COURT: -- about those two things?
THE ACCUSED: I don't.
THE COURT: No problem?
THE ACCUSED: That's correct.
THE COURT: All right. Thank you.
MR. MYHRE: I understand we may be considering shifting the date of jury selection, and I think Your Ladyship may have heard from Madam Clerk that I have some scheduling difficulties. I have a Provincial Court trial that starts on Monday, May the 29th, and runs through June the 1st, and then again on June the 5th. Those are the dates set for that trial. It's certainly a trial where anything could happen. It could happen that it's over Monday morning at ten o'clock, but it also could happen that the entire time is taken of that trial. It just has witnesses that are very hard to predict. It is a -- it is a child sexual interference case. It's not something that I can just hand off to another prosecutor, unfortunately.
The way the Crown was intending to deal with the jury selection on the 30th was to have a senior colleague sit in and -- and select the jury. But I just wanted to alert Your Ladyship to my schedule.
I was also going to say, My Lady --
THE COURT: I think the only reason for changing the jury selection that I'm aware of is that, as Madam Registrar, very aptly pointed out to me in the break, if there's to be a severance application it needs to be heard and determined before we do a jury selection.
MR. MYHRE: So maybe this would be a good time to address that.
THE COURT: Yes.
MR. MYHRE: Obviously I have thought about the issue to the point of doing some research and thinking about how it applies to this case. I could be ready to make the application or how -- respond to the application this afternoon, that is provide Your Ladyship with what I say are the relevant documents, and argue based on -- make argument based on the case law. I think I would probably be a half an hour in submissions, maybe 45 minutes.
THE COURT: Mr. Fox, would that work for you, if we deal with that this afternoon?
THE ACCUSED: Certainly.
THE COURT: I won't necessarily be able to decide it this afternoon, but presumably -- I'm away for the rest of the week, but presumably I can do that before the jury selection, which is when?
MR. MYHRE: May the 30th.
THE COURT: May 30, which is Tuesday. So, Madam Registrar, are you trying to find out whether what I was to do this afternoon could go to somebody else?
THE CLERK: Yes, My Lady.
THE COURT: So if we -- if we did that this afternoon, what I might end up doing is, simply because everyone will need to know before the jury selection, what I might end up doing is simply sending a memo that would give the result of the ruling only. It would say either there will be severance or there will not be severance. Then you'll know, and then at a suitable time, it may be before the jury selection, it may be after, I will give you my reasons for that ruling, and that would be the official ruling, not the memo. Would that work?
THE ACCUSED: Yes.
THE COURT: All right. So what's the word on this afternoon?
THE CLERK: I'm just waiting for a phone call back, My Lady.
THE COURT: All right. Thank you. And how would a memo reach you, Mr. Fox?
THE ACCUSED: For legal purposes, I can generally -- sorry, I can generally receive faxes. Otherwise, by mail. Oh, also sometimes people have been able to telephone the jail, but I think fax would probably be the easiest for you.
THE COURT: When you, Mr. Myhre, send material to Mr. Fox, what do -- means do you use?
MR. MYHRE: I fax it, and I am not aware of any not getting through.
THE ACCUSED: They usually give it to me fairly quickly because of my circumstances, representing myself.
THE COURT: All right. So, Madam Registrar, we need to have a fax number from you.
THE ACCUSED: Yeah. I believe this is it here. Yes, it is.
MR. MYHRE: Yes, it's on that line.
THE ACCUSED: Oh, okay.
THE CLERK: It's that one right there?
THE ACCUSED: It's -- so it's 604-468-3481.
THE CLERK: Thank you.
THE COURT: That's the fax number?
THE ACCUSED: Yes.
THE COURT: Okay.
THE CLERK: Yes, My Lady, we could have the afternoon.
THE COURT: All right. So let's do that this afternoon then. So, Mr. Fox, this afternoon you should be ready to tell me what you wish to tell me about whether the two charges should remain together on the indictment or be tried separately --
THE ACCUSED: Yes.
THE COURT: -- one in one trial, one in the other, and I can tell you that you -- you raised a concern earlier about a delay in getting to a second trial. I don't think you would face much delay. Generally when there's a severance made, every effort is made to have the second trial close on the heels of the first one. Obviously there can be issues about the availability of witnesses, counsel, that sort of thing, but subject to that it gets very high priority because a severance shouldn't have the effect of putting your case, your second case to the bottom of the list, and -- and it would not.
THE ACCUSED: Okay.
THE COURT: All right. All right. Jury selection, is that the next thing to deal with or were there concerns you had, Mr. Fox?
THE ACCUSED: I do have some concerns related to -- well, one of them is related to disclosure. There are audio-recordings of RCMP interviews with the witnesses that have been in the Crown's possession since -- well, since June and July of last year.
There was a lot of debate about them. In August and September the Crown didn't want to provide them to me because they -- they said that they believed I was going to put them on the internet. Eventually I agreed to enter into an undertaking, and the Crown agreed to that, but never actually provided them to me.
Eventually I was able to obtain my own copy of them through other means, but since I obtained those through other means, unofficial means, I think, though I could be wrong on this, but I think that I should still have an official copy, should I not, that I received from the Crown as part of disclosure?
I mean, the single fact that I have some evidence, that doesn't preclude the Crown from having to still disclose what they have, does it?
THE COURT: Well, a number of thoughts come to mind. When -- I'm a little troubled when you say that you obtain things by other methods.
THE ACCUSED: Well, say directly from the RCMP as opposed to getting it from -- from the Crown.
THE COURT: I see.
THE ACCUSED: You see, one of the interviews in particular is very critical because it's the same interview that I'd brought up at the previous hearing where Ms. Capuano admits that the order of protection that she got in Arizona had nothing to do with the fear for her safety but it was only because she believed that that would require me to take down the website, and in that interview she laughs and makes jokes about getting me deported, etc. Clearly that's something that I want to put before the jury.
I also mean to go over that interview, the audio of it with the appointed attorney because that's something he's going to cross-examine her on.
THE COURT: And you say that's an RCMP interview?
THE ACCUSED: That's correct, yes.
THE COURT: And you don't have it or you do have it?
THE ACCUSED: Well, I have the unofficial copy that I've obtained, and so what I'm wondering is, is it sufficient that I have that copy or should the Crown still be required to provide --
THE COURT: It depends what an unofficial copy is. If it's the same that the Crown's got --
THE ACCUSED: Right.
THE COURT: -- except that you got it from the RCMP, personally I can't see any difficulty, but --
THE ACCUSED: Okay.
THE COURT: -- Mr. Myhre might have something to say on that. And sometimes we run into just very practical problems if an interview has been printed out on different computers at different times. Sometimes the pages will be differently numbered, and then --
THE ACCUSED: Mm-hmm.
THE COURT: -- when your time to cross-examine or your -- the lawyer who's appointed is trying to cross- examine on it, nobody else will be able to find the right page.
THE ACCUSED: Right, right.
THE COURT: You know, we can run into problems like that.
THE ACCUSED: In this case, though, we're -- we're talking about the audio-recording as opposed to the transcript, and so those kinds of issues shouldn't arise.
THE COURT: No.
THE ACCUSED: I mean --
THE COURT: So maybe it will be helpful if you could talk to Mr. Myhre about --
THE ACCUSED: Sure.
THE COURT: -- what you've -- what audio-recordings you feel have not yet been disclosed, what ones you nonetheless have directly from the RCMP, and whether you -- Mr. Myhre feels that, at least to start with, whether Mr. Myhre feels that there's some difficulty there in either what you have or what you don't have.
THE ACCUSED: Okay.
MR. MYHRE: Well, can I just say something about that? I think Mr. Fox's concern is, if that gets played for Ms. Capuano, is she going to be able to say, "Well, that's not me" or "that's not an accurate recording" and Mr. Fox maybe thinks that, if it comes from the Crown, then he can say "Well, look, this is what the Crown gave me. It must be accurate."
THE COURT: I see.
MR. MYHRE: But the fact is, of course, authentication happens through the witness, not through the Crown, so saying that the Crown provided it, it wouldn't actually help authenticate it in court. It's playing it for Ms. Capuano, "That's your voice? This is a statement you took? That's you laughing?" That's how cross-examination would be, and that's how the statement would be authenticated, if that's what he wants to do.
THE ACCUSED: That was -- that was a bit of my concern, yes, though, given my history with Mr. Myhre, I think that I'm much more concerned with the Crown objecting to me bringing in a recording from outside as opposed to something obtained from them. You see, had I obtained the recording from Mr. Myhre, certainly he's not going to object to it or question where it came from. However, if I bring in a DVD or a USB drive with a recording that came from outside, there's the chance that he may dispute it, and then that might cause further delays.
However, he did state earlier today that he's willing to give a copy of it to the appointed counsel, so I suppose I could just have the appointed counsel bring that copy in.
THE COURT: That seems like a good suggestion, if that's acceptable.
MR. MYHRE: The only reason Mr. Fox doesn't have unvetted copies of these or the reason I haven't provided some of the audio --
THE ACCUSED: I understand.
MR. MYHRE: -- is that there was vetting in some of these.
THE COURT: Yes.
MR. MYHRE: So he was given a transcript that had vetting, and then I -- there was certainly back and forth between Mr. Fox and the Crown about getting the audio and, to be honest, that was about six months ago and I can't remember where exactly it all fell out, but what I can do is provide specific audio-recordings to Mr. Lagemaat --
THE ACCUSED: Mm-hmm.
MR. MYHRE: -- on his undertaking that he's not going to put them in your possession.
THE COURT: Will that answer -- answer the problem?
THE ACCUSED: Yes, I'm agreeable to that.
MR. MYHRE: Which statement was it, Mr. Fox?
THE ACCUSED: Well, all of them.
MR. MYHRE: Well, you have some --
THE ACCUSED: I mean, the guys from the shipping company, I would like their statements because we're going to be cross-examining them, right, and then Mr. Pendleton is not going to be appearing, so that's not critical.
THE COURT: Just on the issue of other people --
THE ACCUSED: Sure.
THE COURT: -- will you need audio-recordings for those?
THE ACCUSED: I'm sorry, I'm trying to remember from the recordings of the gentlemen from the shipping company, there was nothing in there that I recall that was evident on the audio that didn't also appear on the transcript. As I'm sure you're aware, sometimes there is information that is relayed in an audio-recording or a video that doesn't --
THE COURT: Yes, that's true.
THE ACCUSED: -- appear in the transcript, like laughing and crying.
THE COURT: Yes.
THE ACCUSED: Other than Ms. Capuano's statement, no.
THE COURT: And the other thing, and I'm just going to interrupt here --
THE ACCUSED: Sure.
THE COURT: -- because it's an important point in the trial and in your preparation, the jury will be told that the evidence is the recording they hear, not the transcript. The transcript is just to help everyone follow along.
THE ACCUSED: Right.
THE COURT: And if anyone, and in -- and if the jury hears things differently --
THE ACCUSED: Mm-hmm.
THE COURT: -- from what the transcript says, what counts is what the jury hears, not what the transcript says.
THE ACCUSED: Sure.
THE COURT: And there will be errors. There always are in transcripts.
THE ACCUSED: Okay.
THE COURT: So that supports your position in a way that you need to have access to audio-recordings.
THE ACCUSED: Mr. Minor -- Mr. Myhre and I had discussed earlier this issue of him assisting me by printing some pages from the website and also printing an extensive list of emails that I intend to adduce, we're going to -- he said that he is going to print those, we're going to discuss that more afterwards, but I just wanted to make sure that it was brought up on the record that we have discussed that, and he said that he would provide those. I want it on the record simply because the list of emails is quite long. It's about 400 email conversations.
And the one other point that needs to be brought up is the issues I'm having with the jail refusing to facilitate me obtaining evidence. That's still going on, and my complaint, I've worked out the complaint process to the ombudsperson department. So maybe I'll get results from there and maybe it won't. I might be able to have my associate in Los Angeles forward the evidence to Mr. Lagemaat, but from my discussions with LSS, it doesn't seem that they are agreeable to paying him for any time related to that, so I'm not sure if he'll be open to it or not, since really the amount of time it would take for -- on his part would be minimal, I mean, to receive them and then forward them to me, but I'll need to speak to him about that. And that is -- that is all the concerns I have.
THE COURT: All right.
THE ACCUSED: Thank you.
THE COURT: Are there any of those concerns that you would like me to address right now or are you simply informing me?
THE ACCUSED: No, I don't think that there's anything that you would need to address at this point.
THE COURT: Should we turn to the jury selection process?
THE ACCUSED: Okay.
THE COURT: Is that a good time to do this now? Have you had an opportunity to read about it, Mr. Fox, to know? I simply want to know how much you know and don't know. If you're starting from ground zero, that's fair enough.
THE ACCUSED: I have read the material that was provided by the previous judge, I can't remember her name --
THE COURT: Yes.
THE ACCUSED: -- as well, I do have some law books that I've purchased that I've read. I've read the few chapters on jury selection. It -- it doesn't seem that there's really a lot for me to know with the process here in Canada. I mean, it seems a very straightforward process.
THE COURT: It is fairly straightforward, but it's a process that can be daunting simply because you're in a big courtroom with --
THE ACCUSED: Mm-hmm.
THE COURT: -- a hundred or more people who have come, and so what I suggest, I've printed out a description of the process, and I suggest that we just go through it, I read it, you absorb it, Mr. Myhre raises any point that he thinks might be misleading, and then we'll just make sure you understand it step-by-step, and that you feel comfortable with it. If you have any questions, we'll deal with them. I can show you where people will stand in the courtroom, that kind of thing, and so I suggest that we do that now, and see how it goes.
THE ACCUSED: Okay. Hmm, sorry, I just -- I can't help but feel that this is another ineffective use of the court's time. I mean, I -- I understand that you're doing this because you want to make sure I have a fair trial --
THE COURT: Exactly.
THE ACCUSED: -- but I feel that I'm being a bit of an unnecessary burden by doing so.
THE COURT: You're not.
THE ACCUSED: Okay.
THE COURT: Selecting the jury is a very important stage of the trial, and I want you to feel comfortable in that process. As I think I said once earlier, it's not like what I understand the American process to be. It's much more limited.
THE ACCUSED: All right.
THE COURT: But there are ways in which each party participates, and it's important that you understand what those are.
THE ACCUSED: Okay.
THE COURT: So I'm going to hand these out. Madam Registrar, there's one for each Mr. Myhre, Mr. Fox, and one can be marked as the next exhibit for identification, which is Exhibit D?
THE CLERK: D for Identification, My Lady.
MARKED D FOR IDENTIFICATION: Document titled "Jury Selection"
THE COURT: And I'll tell you where it comes from. I took the document that you were given by the previous judge -- don't -- don't read ahead right now, Mr. Fox.
THE ACCUSED: Oh, no, I'm just writing down the exhibit here.
THE COURT: Right. You were given by a previous judge that sets out a very detailed description of the entire trial process, and I took the portion dealing with jury selection, but I've revised it quite substantially, and printed out just that piece of it, and I will probably update the rest of that document, too, and give it to you perhaps after the jury selection next week, Mr. Fox.
All right. So I'll just read it so that you've all got time to think about it and go through it.
The jury for your trial will consist of 12. Two alternate jurors will also be chosen. Alternate jurors are available to substitute for any of the 12 jurors who, between the time of selection and the start of the trial, become unavailable to serve as jurors.
Once the evidence in the trial begins, any alternate juror who has not been asked to step in is discharged and their responsibilities are over.
So you understand that, Mr. Fox? They don't stay through the trial.
THE ACCUSED: Yes.
THE COURT: We'll do the selection process Tuesday, May 30th at 10:00. Is it at 10:00?
THE CLERK: Yes, My Lady.
THE COURT: Thank you. So a panel of potential jurors who are randomly chosen will be in the courtroom. There may be a hundred or more people. The size of the panel will depend on whether there are other jurors being selected that day.
The sheriff will give you a list of the names and occupations of the potential jurors. And, Mr. Sheriff, do the names go on the list these days or just the juror number?
THE SHERIFF: Yes, the names go on the list, My Lady.
THE COURT: All right. So for each person there'll be a juror number, a name and an occupation. You're not allowed to keep the list at the end of the jury selection process. Everyone returns the list to the sheriffs.
So, if you have notes to make during the selection process, keep them separately from the list, Mr. Fox.
So, in the process, the court clerk randomly selects potential jurors by number. It's all done by number, pulling the numbers from a drum or a box which is shaken up first. Calls out each number, as it's selected, and the potential juror, and it'll be a much bigger courtroom, will call out their name, so we know they've heard, and will step forward to the front of the courtroom usually to about here where I'm pointing, and we'll call about 20 people in that way.
Then, when we've got about 20 people, the court clerk will recall their numbers in the same order, and the selection process will then relate to each of those people one by one.
When a potential juror's number is called for that second time, I will ask him or her if there's any reason they should not serve on the jury. Some will ask me to excuse them for various personal reasons, and I may excuse them for a given reason or I may stand them aside to the end of the list so that we use them only if we haven't got enough other jurors to select from.
If a potential juror is not excused, we then move on with that juror to the process for challenges. I'm going to talk a bit later about challenges for cause, but the other type of challenge is the peremptory challenge, and I'll talk about that now.
The peremptory challenge gives a right to reject a potential juror without showing any cause or giving any reason, so you, Mr. Fox, and the Crown, will each have the opportunity to say either challenge or content for each potential juror.
If both you, Mr. Fox, and the Crown say content, then that person will be sworn as a juror, and they will go and take a seat in the jury box. If either you, Mr. Fox, or the Crown say challenge, that potential juror will not serve on the jury.
You can use the right of peremptory challenge in any way you like. You do not give reasons for your challenge, you're not allowed to ask the potential jurors any questions in this process.
Your right of peremptory challenge is not unlimited. You have a total of 14 peremptory challenges. I think I'm correct, Mr. Myhre, you can correct me if I'm wrong, the offence under s. 264 gives a right to challenge 12 -- 12 peremptory challenges?
MR. MYHRE: I'm sorry, without the Code, I don't know the answer, My Lady.
THE COURT: I think we need to double check that, and then there are two extra because we're selecting two alternates.
MR. MYHRE: That sounds right to me.
THE COURT: All right. So the other thing we need to talk about in this peremptory challenge process is who goes first in saying challenge or content because, in theory, you could run out of your peremptory challenges. And the Criminal Code gives us the rule on that, and it is in s. 635 of the Criminal Code for the first person, potential juror, the defence goes first. So, if the defence says challenge, the person's excused. If the defence says content, then we turn to the Crown and the Crown either exercises a peremptory challenge by saying challenge or says content.
Then we have the second potential juror, and we reverse the order, start with the Crown, if he says challenge or content. If the Crown says content, we turn to you, Mr. Fox, and you say either challenge or content, and we continue in an alternating way.
Now, we may run through the 20 who we have up in the front of the courtroom because of jurors being asked to be excused or because of challenges and, when we run out of the 20, we repeat the process. Madam Registrar shakes the box again, calls more numbers, people come forward, and when we've got about 20 again, we'll continue on.
So I'll say something now about challenges for cause, and I'm at paragraph 69. A challenge for cause is when you challenge a potential juror's suitability for the juror [sic] because you do not believe that he or she is neutral or unbiased.
Now, at a previous pretrial conference we spoke about challenges for cause, and at that time I explained that a person might not be neutral or unbiased because of, for example, racial bias or because the case has been in the media with a lot of publicity that the juror has read and they've formed an opinion.
Now, at that time, Mr. Fox, you said that you did not wish to bring a challenge for cause for any of these types of general reasons. If you've changed your mind about that or if you have any questions about that, you should tell me right away, but, in any event, you can also challenge for cause as the individual jurors come forward if, for any reason, a potential juror is not qualified to serve as a juror or for some reason excluded or not able to carry out the duties of a juror. And there are no limits on the number of times you can challenge for cause.
I can tell you that challenges for cause on this type of basis for individual jurors for those very specific reasons of not being qualified or able, are relatively unusual because we have a fairly complete process for jurors telling the court or the sheriffs beforehand when they receive their subpoenas or summonses about reasons that they may not be qualified to serve.
For example, if they're -- and I've set out a number of examples in paragraph 72, and I won't go through them all. But, for example, if they're not a Canadian citizen or a resident of B.C., or if they're in one of the occupations that disqualify them from being a juror such as a lawyer, or if they don't understand English which will be the language of the trial. Generally jurors with those types of disqualifying reasons will have brought them to my attention when they first -- when their number is first called for the second time.
But if, for some reason, it appears that we have or it appears to you, Mr. Fox, that there's a person coming forward whose name has been called for a second time who may not be qualified or properly able to serve, you are entitled to challenge for cause.
If you do that, you should do it before the process for peremptory challenges when each of you and the Crown say either challenge or content. And we do that essentially so that you don't waste a peremptory challenge. And if you do challenge for cause in that way, I would ask for your input and the Crown's input and I may ask a question or two of the juror. And if I excuse them, that would not count as a peremptory challenge because it -- it's not a peremptory challenge.
So that's -- what I haven't said is that we continue on until we have a full jury box and two alternates. At that point generally I will excuse the rest of the panel, they all leave. Generally I will ask the jury who's been selected, and the two alternates to remain for a short while, and I will give them some instructions about things they are not allowed to do between that time and the trial, and they will be things along the line of don't try to find out things about the case or the people in it because it's important that all the jury understand that what they're asked to do in a trial is decide the case on the basis of the evidence they hear in the courtroom only, evidence and submissions in the courtroom, not outside information. So we don't want anyone going off and trying to inform themselves about this case.
Now, anything I've missed in the process, Mr. Myhre or, Mr. Fox, questions about the process?
THE ACCUSED: It's my understanding that during the selection process, the court will sometimes ask some questions or speak with some of the potential jurors; is that correct?
THE COURT: It can happen.
THE ACCUSED: Okay.
THE COURT: Let me think about how it may happen. I think what happens the most with jurors who ask to be excused. They may say "I have a holiday booked in trial, you know, that overlaps with the trial, may I be excused?" and I'll ask them questions along the lines of "Well, how long ago did you book your holidays? Is it paid for?"
THE ACCUSED: Mm-hmm.
THE COURT: That sort of thing.
THE ACCUSED: Okay.
THE COURT: There can be questions -- requests to be excused for medical reasons. Those I will usually ask the person to put in writing so that they don't have to announce to -- in front of hundreds of people --
THE ACCUSED: Mm-hmm.
THE COURT: -- their medical circumstances. And I will take their note, I will either, depending on the content of it, I might show it to you and Mr. Myhre and say "My thinking is that this person should be excused, do you agree?" If it's an intensely personal medical thing --
THE ACCUSED: Mm-hmm.
THE COURT: -- I might ask you and Mr. Myhre if you would agree to not see it, but you, to the extent that it's a matter that could be viewed as effecting your interests in the trial, you may well have a right to see it, if you wish, but it's a right that you might consider foregoing in some extreme circumstances. If -- does that answer your question?
THE ACCUSED: Yes.
THE COURT: I suppose one other thing I should tell you is sometimes jurors will ask to be excused because they'll say "Well, I am good friends with a police officer, not someone who is going to be a witness on this case, but, you know, I do associate with them, and I may have views about how the justice system should work" or something like that. In that situation I would probably say to the person "Well, has your experience in socializing with this police officer, does it bring you to the point that you think you might be unable to decide this case in an impartial way, taking into account only the evidence in this case and the submissions and instructions?" And obviously the juror's answer could be quite significant, and you can imagine the answer range from "Oh, oh, of course, I would be able to impartial. I would listen to the evidence", through to "No, I'm firmly convinced that everyone who is charged is guilty", and that person would probably not be suitable. All right?
THE ACCUSED: Certainly.
THE COURT: Before we start the process, I tell the juror -- the panel what to expect in the process and how we'll conduct it, so I'll be reading instructions to them that are somewhat similar to what I've just said to you. You will be arraigned at the jury selection, which means the charges will be read out to you. That's one reason we need to know before then whether there's one charge or two. What else do I need to say, Mr. Myhre?
MR. MYHRE: The Crown would read out a list of the witnesses.
THE COURT: Yes, thank you. And one reason we do that is so that the potential jurors hear the names of all of the witnesses, and if they have a social relationship, a professional relationship or went to high school with them, somebody on the list, they can bring that to our attention when they come forward. Sometimes there are people, who will say "Well, I haven't seen him for 15 years, but he was in my elementary school class". Generally, that's not considered a problem.
THE ACCUSED: Mm-hmm.
THE COURT: But there are situations where it might be a problem, depending on who a witness is and how --
THE ACCUSED: Okay.
THE COURT: -- central to the case they are. Other questions?
THE ACCUSED: No.
THE COURT: Think about it some more. If something comes up, don't hesitate to ask. We should probably take the lunch break at this point and we'll come back at 2:00, and deal with the issue of severance.
MR. MYHRE: Before we do, can I ask that we come back at 2:15?
THE COURT: 2:15, that's fine.
MR. MYHRE: And, My Lady, will you be printing out the Last and Taylor cases or should I bring copies [indiscernible/voice low]?
THE COURT: I could print them out, I suppose.
MR. MYHRE: I mean, if you are going to, it's easy for me to print new copies, but if you want to print them out right now and read them over the lunch hour, then --
THE COURT: I actually have a couple of other things I need to attend to over the lunch --
MR. MYHRE: Then I'll print them.
THE COURT: -- so I won't be reading them before 2:15, so if you could handle that, that would be appreciated. All right. We'll adjourn until then, thank you.
(PROCEEDINGS ADJOURNED FOR NOON RECESS) (PROCEEDINGS RECONVENED)
MR. MYHRE: My Lady, please pardon me, I did not have a chance to make it back to the Provincial Courthouse for my calendar.
THE COURT: All right. Not to worry.
MR. MYHRE: I've --
THE COURT: It's been a day that has changed its -- changed the course along the way.
MR. MYHRE: Thank you. So I guess ordinarily this would be an application by the accused, but in this case I think it obviously makes sense for me to make my submissions first.
THE COURT: That would be helpful.
SUBMISSIONS RE SEVERANCE FOR CROWN BY MR. MYHRE:
MR. MYHRE: My Lady, I will be relying on these documents, there are three documents I'm handing up; two cases and one, the first document you see there is just a stapled series of documents, there are about four different documents there that I'll be referring to, and then I have a copy of that for -- to be marked as an exhibit. Maybe just so we don't forget, can we mark that as an exhibit at the outset?
THE COURT: All right. Does that mean -- so this would just be the next exhibit for identification, or perhaps the first exhibit in the severance application.
MR. MYHRE: I think that makes sense.
THE COURT: All right. So this will be Exhibit 1 in the severance application.
EXHIBIT 1 (on Severance Application): Burnaby RCMP Narrative Text Hard Copy
THE COURT: This one, and I have a copy, thank you.
MR. MYHRE: So, My Lady, the way I've structured my submissions, first of all, I'll take Your Ladyship through this evidence and then discuss why I say the evidence of Mr. Fox sending these firearms to California is relevant.
Then I'll be making submissions on the Taylor case, which the Crown says supports the proposition that that evidence is legally admissible on a charge of criminal harassment.
And, finally, I'll finish by going through the factors identified in Last on a severance application.
THE COURT: All right.
MR. MYHRE: So, first of all, then with respect to Exhibit 1, I'll say at the outset these are documents that were tendered at the preliminary inquiry, so Mr. Fox has seen what I'm tendering here for the first time, but I think he's quite familiar with these documents.
The first two pages are an exc -- are excerpts from a statement that Desiree Capuano gave to police in the summer of 2016. I should give you the exact date. It's dated June 17th, 2016. And this -- at page 2 of that -- the transcript for that statement she outlines the things that she says have been causing her grief, the things Mr. Fox has done that have caused her grief, and I just want to point out the parts that relate to the firearms, and the firearms being in California.
So, if Your Ladyship looks at line 4, Ms. Capuano says [as read in]:
At that point...
Referring to June of 2014:
... he ...
Patrick Fox:
... made it his life's goal to destroy my life and he started...
THE COURT: Now, I'm sorry, I'm lost.
MR. MYHRE: Sorry. If you see at the bottom and it says page 2, I've only given Your Ladyship excerpts from the statement. So you have page 2 and page 13 of the transcript.
THE COURT: Yes.
MR. MYHRE: So if we go back --
THE COURT: Oh, so page 2 is page 1?
MR. MYHRE: Right.
THE COURT: All right. And where is line 4?
MR. MYHRE: So there are no line -- there are only paragraph numbers, unfortunately --
THE COURT: All right.
MR. MYHRE: -- so I'm referring to the fourth line from the top.
THE COURT: Yes.
MR. MYHRE: So [as read in]:
At that point he made it his life's goal...
THE COURT: I see, thank you.
MR. MYHRE:
... to destroy my life and he's on a campaign of harassment.
So then she talks about different ways that that was happening, from her perspective, and then on down about six more lines there's a sentence that begins [as read in]:
Um, he told me at one point he would kill me if he could get away with it.
About six lines further down there's a statement that starts from the left-hand side of the page that says:
And then he confirmed he would absolutely shoot me if he could get away with it.
Does Your Ladyship have that?
THE COURT: Yes. Yes, I do.
MR. MYHRE: And then three lines further down [as read in]:
Um, continuously tells me about how he has guns, how he's allowed to own guns, how he goes to the shooting range all the time. He shows me pictures of where he crosses the border through a park. He's taunts me, telling me there's no authorities present when he crosses the border and he does it all the time, that he's constantly in the United States.
Then on page 13 of the transcript of the statement, over the page, the police officer, at paragraph 235 --
THE COURT: And what's -- what's the context of these first statements?
MR. MYHRE: I'm sorry, what is?
THE COURT: Is she in the United States?
MR. MYHRE: She --
THE COURT: What's the significance of him, from her perspective, going to the United States?
MR. MYHRE: Well, my submission is that here Ms. Capuano is linking her fear to the fact that he has guns, and that he can cross the border whenever he wants. She --
THE COURT: So what's the significance of crossing the border?
MR. MYHRE: She lives in Arizona.
THE COURT: Thank you.
MR. MYHRE: I'm sorry, in that respect it would have been better to give you all of the statement. The next time firearms are mentioned in her statement is page 13 of the transcript, the next page I've given Your Ladyship, and paragraph 235, Ms. Capuano says [as read in]:
He scares me.
And the interviewing police officer says:
So along those lines, obviously he scares you. Do you fear for your safety?
And she says:
Yes.
Officer [as read in]:
And why do you fear for your safety?
Because he does not abide by any of the laws or rules that are set down. He believes that he's above them or he can get out of them no matter what he does. I believe that if he comes back in the country he'll figure out a way to be here without anybody knowing that he's here. I watched him. He's had unregistered firearms in the United States before. I know he owns guns up in Canada, and he's been practising shooting them, and I don't think that it would have taken anything to show up and hide behind a bush, and I really feel like he hates me enough and despises me enough that he would absolutely take the shot if he had it, and if nobody knows where he is and he's in the United States it would be far too easy for him to do that.
So we -- here, Ms. Capuano's expressed concern about the combined facts of Mr. Fox having guns and crossing the border apparently at will because he would shoot her, that's what she's scared of. I should say that appears to be one of the reasons she's scared of him.
The next document is email -- an email sent to Ms. Capuano by Mr. Fox on December the 17th, 2014. Now, if Your Ladyship looks it's slightly confusing at first, this is -- you can see at the very first line says "From Desiree Capuano." It's sent to a police officer at the RCMP, but then below that, below "attachments" it says "Forwarded message from Patrick Fox to Desiree Capuano" and the date of December 17th, 2014.
So, if Your Ladyship looks, the relevant portion regarding firearms appears right above the -- in paragraph -- the top of the paragraph that has highlighting in it at the bottom, and a few lines in he's talking about having a PAL, a possession acquisition license, and I'll just let Your Ladyship read, if you read the next 10 lines or so you can see he goes on about having this PAL and having firearms.
Now, My Lady, I acknowledge that in the context Mr. Fox is clearly telling Ms. Capuano, "Look, I must have a clean background in Canada because I was able to get a PAL." Nevertheless, this is an example of what Ms. Capuano is talking about in her statement of being reminded that he has guns.
The next section I'd like to point out is the next email and, My Lady, you can see -- I'll refer to these page numbers in the bottom right-hand corner. Those are the pages of the -- from the exhibit at the preliminary inquiry, and you can see highlighted this was an email ostensibly sent January the 11th, 2015, and if Your Ladyship looks at the first highlighted portion on paragraph -- the first large highlighted portion on page 3, Mr. Fox tells Ms. Capuano [as read in]:
I was pretty direct when I told Detective Tuchfarber that my intention was to do everything in my power and capabilities to make your life as miserable as possible and, if possible, to the point you ultimately commit suicide. That would be my ultimate desire.
The point here being that Mr. Fox has established to Ms. Capuano that he would really like her dead, and he's planning to do what he can to see that happen by her own hand on that statement, but you -- if you keep going to page 6, right at the very bottom there's a highlighted portion:
He...
And the reference there is to their son {G*****}:
... once asked if I would shoot you. I told him that murder is illegal in law and can result in spending the rest of one's life in prison, and that the rest of my life in prison is not a risk I'm willing to take, but, otherwise, no, I would have no qualms about it, but that is how much I despise you for the things you've done and continue to do.
And then Mr. Fox goes on to add the caveat:
I would never deliberately cause physically harm other than in self-defence of defence of another.
And the last document in this -- in this sheaf of -- in this stapled package of documents is a blog post from the website desireecapuano.com, and I don't think Mr. Fox takes any issue that he's the author of this website. Certainly he admits that in his statement to the police.
And there's this blog post, which the Crown says is concerning and particularly relevant to this application. The first paragraph under the title "My ex-husband wants to kill me or at least that's what I keep telling people," Mr. Fox summarizes what he understands Ms. Capuano's concerns to be. And -- and again I don't think it's disputed Mr. Fox is the author, but these blog posts are written as if Desiree has written them.
Now, the parts that are most relevant, I would suggest that Your Ladyship might read the entire blog post, but if you flip the page there's a section titled "The logistics" about two-thirds of the way down the page, and it starts with [as read in]:
Now let's consider the logistics that would be involved in Patrick actually attempting to shoot me.
Under the numbers 1, 2, 3, the next full paragraph:
He would have to sneak into the U.S. crossing the border without being detected because he'd be illegally smuggling a firearm into the U.S.
Over the page, the next highlighted portion, the writer contemplates which firearm might be used, and then the last highlighted portion some logistics of getting rid of whatever gun was used.
And then again to that email we saw earlier, the last paragraph there under the last highlighted portion Mr. Fox adds the caveat that really this is just logically -- or logistically impossible without getting caught.
This might be a good time to turn to the Taylor case before I make very explicit how the Crown says that evidence is relevant to the harassment charge. So if I could take Your Ladyship to paragraph 20, page double 10, maybe I'll just back up and I'll tell Your Ladyship a little bit about the facts of the case because they are of some significance.
There was some history between the complainant and the accused in this matter. I believe he'd been previously convicted, put on probation, breached his probation in terms of the no-contact order with the complainant. And at this trial what was at issue was he was charged with criminal harassment in relation to the two- month period after he got out of jail. And during that two-month period there were a couple of instances of direct communication with the complainant, face-to-face. There were a few things left for the complainant, flowers, I think, were left on her car. A target was drawn on her car, and so the identity of who had done that was one of the issues at trial.
And then there were other instances of behaviour by the accused testified to by witnesses other than the complainant. One acquaintance of the accused testified that he had met the accused at a McDonald's across the street from where the complainant lived, and the accused had pointed out that's where the complainant lives, and that the accused had also borrowed a video camera from him for the purpose of videotaping the complainant.
There were also a number of emails that were sent to various people expressing concern about how the complainant was looking after her daughter, and during the time of the -- that spanned the indictment, the complainant was not aware of those actions. She wasn't aware of the emails, she wasn't aware of the videotaping, or the sitting in McDonald's. And so that's part of what's described in the quoted paragraphs from the trial judgment at page 7 to 10, the quoted paragraphs 53 and 54 just talks about some of that evidence that was before the court but wasn't known to the complainant.
At paragraph 31 on page 9 the court then deals with the admissibility of this evidence, and at paragraph 31:
There was some evidence of conduct by the appellant of which the complainant was not aware. This evidence was relevant to all elements of the offence except the element concerning the state of mind of the complainant.
And the court had earlier in this judgment sets out the elements of criminal harassment. The court goes on in paragraph 32 to discuss some of the emails that were sent, and then the last two sentences:
The judge noted that a police officer did contact the complainant about the content of the messages but there is no evidence that the complainant was specifically aware of what the appellant was up to. However, these facts loudly proclaim the purpose of the appellant and his persistence.
Paragraph 33:
There is also no evidence that the complainant was specifically aware of the use by the appellant of Mr. Ramsdale's video camera or the extent of his surveillance of the complainant's residence from the McDonald's ... That evidence supports the conclusion that the appellant was watching the residence, but it does not go to the complainant's state of mind.
So there were things that were at issue in the Taylor case that aren't at issue in this case. Again, the Crown is not saying that this evidence is relevant to identity in any way.
Similarly, this evidence in Taylor supported a conclusion that when -- with regards to the actus reus, so when the accused was seen outside her residence by her on one occasion, was that actually besetting? Well, the fact that he was there and was videotaping on other occasions suggested that that was actually what was occurring. So I take -- unfortunately the court is, with all due respect, a little bit vague about how exactly this evidence related to each element of the offence, other than the complainant's state of mind, but that's how I understand it.
But that evidence was also relevant to, as the court says, the purpose of the appellant, and that's how the Crown says that this evidence is relevant in this case.
So, we set that out briefly when we -- when we talked about that this morning, but I'll do so as explicitly as I can right now how the Crown says that -- maybe I should backup and tell Your Ladyship what the evidence -- summarize what the evidence is on the s. 93 count.
THE COURT: All right.
MR. MYHRE: So the evidence on the s. 93 count is, aside from the fact that Mr. Fox is licensing, the fact of his possession of the actual restricted firearms are that he contacted that shipping company --
THE COURT: I'm sorry, what do you mean by those first two things?
MR. MYHRE: There are elements of the s. 93 offence that I don't think are -- I don't need to get into right now, were the firearms restricted, was he in possession of them, or were they his firearms? I don't -- I understand Mr. Fox doesn't dispute those facts.
In late May 2016 Mr. Fox shipped a number of boxes over a period of a couple of weeks with a place called the Packaging Depot in Burnaby, and there were about 25 boxes in total that were shipped to a woman named Liz in Los Angeles.
In late May 2016 Mr. Fox was arrested by the U.S. authorities after surreptitiously crossing the border somewhere around Surrey. He was detained for a number of reasons.
THE COURT: What do you mean by surreptitiously? Do you mean crossing at a normal border point or crossing at some -- and not being forthcoming or crossing the border at something other than a regular border crossing?
MR. MYHRE: The latter. The latter.
THE COURT: All right.
MR. MYHRE: He was detained by them for about six weeks. They brought him back to the border --
THE ACCUSED: Three weeks.
MR. MYHRE: Mr. Fox is correcting me, three weeks, I'm sure he's more accurate than I am on that. They brought him back across the border, turned over to the RCMP, who then took him into Burnaby where they did an interview. He was very candid about crossing the border, said he often did it, and eventually the topic turned to his firearms, and he admitted that he had shipped them to Los Angeles, and that's all part of the statement the Crown will be putting before the jury.
Mr. Fox did explain that he was planning to move to Toronto, and he had nowhere else to leave his -- his things.
Agents with the Alcohol, Tobacco and Firearms Agency in the United States went to Liz' house, we don't have the exact date on when they found the 25 boxes. Inside one of the boxes they found Mr. Fox's four firearms packaged inside of a computer hard drive or a computer desktop.
So, the evidence, and this is -- goes to some extent towards the time that will be required for this evidence, the jury would also have to hear from someone from the Packaging Depot who talked about receiving these packages from Mr. Fox, and the ATF agent who searched the boxes in California.
My estimation is that, combining those two witnesses, I think in their direct will be approximately a half a day each.
So, then to deal specifically with the relevance of that evidence, the -- it's not relevant to whether Ms. Capuano feared. I've done a little bit of research and the phrase in all the circumstances doesn't mean -- it means all the circumstances known to the complainant --
THE COURT: Yes.
MR. MYHRE: -- and Taylor -- Taylor sets that out. The jury, however, is going to have to evaluate Mr. Fox's intention with the statements that you saw on the blog post and in the emails. Was he intending to instill fear in Ms. Capuano? And the Crown says that his ability to carry out any threat, or veiled threat with a firearm is relevant to evaluating his intent.
I don't know if it's useful but it seems to me it might bit, an analogy you could think of somewhat more dramatic analogy, somebody, say myself, were to make a threat that I would drop a nuclear bomb on somebody's city, anybody hearing that from me probably wouldn't be scared because obviously I don't have the ability to carry that out. But if somebody heard that from the leader of North Korea, they might think, oh, he's really trying to intimidate me.
Now, if that person also learned that the leader of North Korea had moved his nuclear warheads into a perfect position to shoot them, that might make you think, oh, he was -- he was actually being serious when he levelled that threat.
THE COURT: But in that analogy you just related, the difference between you making the threat and the leader of North Korea making the threat to the issue of whether somebody hearing it would take it seriously.
MR. MYHRE: No, I'm going from the perspective of the jury. They're going to have to evaluate was Mr. -- what was Mr. Fox's intention when he said these things? Was he just spouting off or was he intending to intimidate this woman? If I'm just making outlandish impossible to fulfill threats --
THE COURT: Well --
MR. MYHRE: -- am I really being serious, am I trying to intimidate somebody? But if I'm making threats that I can carry out --
THE COURT: You -- you might be. Whether you can carry out the threat is another issue, but if you make it, it might well be for the purpose of intimidating. All right. Thank you.
MR. MYHRE: I think you could also analogize to the situation where somebody is charged with threatening, threating to shoot somebody. In my submission, evidence that that person carries firearms or even had them on their person at the time they made the threat would surely be relevant to assessing their intention.
And so, if the jury is going to hear from Ms. Capuano evidence roughly along what she said in her statement, "You told me you can cross the border anytime you want." "He told me he had firearms. I was scared he was going to come and shoot me", and without the evidence that he actually did cross the border surreptitiously, and the evidence that he did ship his firearms to the United States, the jury might well conclude these are just idle threats.
Mr. Fox was just spouting off, venting his anger, he's not really intending to intimidate this woman because how could she ever take that seriously? I mean, I can't cross the border, I can't sneak across it, but then when they hear, oh, Mr. Fox does sneak across the border, oh, Mr. Fox did send his firearms to California, maybe his threats weren't that idle when he made them.
That's all I have to say about how that evidence is relevant to the criminal harassment charge.
THE COURT: Thank you.
MR. MYHRE: When it comes to severance, I rely on the Last case, and the court starts out at paragraph 1 on page 5 of 15 by acknowledging that the Crown has a large discretion in deciding to include more than one count in an indictment, and I don't think that's any more than stating the obvious as to what's legally permissible. But, at paragraph 16, the court identifies:
The ultimate question faced by a trial judge in deciding whether to grant a severance application...
And that's -- and this is page 8 of 15, and paragraph 16, and that's:
... whether severance is required in the interests of justice...
And that in terms of:
... the accused's right to be tried on the evidence admissible against him, as well as society's interest in seeing that justice is done in a reasonably efficient and cost- effective manner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.
Then, at paragraph 18, and about the third sentence, the court sets out the fact -- the factors the courts rightly use in evaluating what's in the interests of justice.
I'm going to go through them one by one and say how they apply in this case. First of all, prejudice. In terms of moral prejudice, the danger of the jury would see this evidence that Mr. Fox had shipped firearms to the United States. In my submission, that on its own is very bad character evidence. It's somebody who disobeyed a regulation. This isn't a fact like in the Last case you had two egregiously violent sexual assaults that occurred one month apart in the same city. Other than the fact that they were somewhat close in time and occurred in the same city, there was no -- there was no connection. I'm getting ahead of myself there.
But obviously if the jury was satisfied that the accused in Last had committed one of those, it -- they'd be very tempted to infer that he was the sort of person who would have committed the other one as well, and that's just not the case here. There's -- there's negligible moral reasoning prejudice in this case.
The other type of prejudice has to do with distracting the jury. In my submission --
THE COURT: I'm sorry, I'm -- I'm not sure I understand you on that first point.
MR. MYHRE: Okay.
THE COURT: You say there's negligible risk of moral reasoning prejudice in evidence that, if it's established that Mr. Fox illegally crossed the border and with him or shipped with him, ahead of him, restricted firearms that shouldn't have gone?
MR. MYHRE: What he's charged with in s. 93 is -- is breach -- his -- is very close to a regulatory offence. It's possession of those firearms at a place that he wasn't authorized.
THE COURT: Well --
MR. MYHRE: It doesn't seem to me that a jury's going to conclude that the kind of person who would breach a rule on his PAL is the same kind of person who would harass his ex-wife, I mean, other than in the permissible relevant route that I've identified.
THE COURT: Are you going to get to the danger of prejudice that I referred to earlier at a previous pretrial conference, and that is, given that Ms. Capuano had no knowledge of Mr. Fox shipping these firearms, if indeed that's what he did, it can't be evidence going to her state of mind, but when the jury is considering whether Ms. Capuano had reasonable grounds to fear for her safety, the jury might improperly reason that, well, of course she did because here he is shipping firearms across the border so that they're available to him in the United States.
MR. MYHRE: My Lady, it seems to me that, if -- if the evidence is relevant to one element of the criminal harassment offence, it doesn't -- it shouldn't matter if -- I guess you evaluate on -- you have to evaluate the overall prejudicial effect versus probative value.
So, Your Ladyship, in saying is it a problem that they may --
THE COURT: Well, let me come at it in another way. If the two counts remain on the indictment, it would seem to me that I will have to give the jury an instruction that would go something along these lines. If you find that Mr. Fox shipped restricted weapons, I think it was restricted, across the border surreptitiously, that can have nothing to do with your consideration of whether Ms. Capuano -- Capuano had reasonable grounds to fear for her safety, you cannot take into account -- let me put it this way.
When she testifies, or she has testified, that's assuming that she does, that she was afraid that Mr. Fox would pursue her into the United States, would sneak across the border and surreptitiously bring guns with him, when you are assessing whether that's a reasonable belief, you must not consider the fact that, if you find that he actually did that. I'm putting it fairly bluntly in order to point out in the strongest way what may be a problem, whether it is a problem in -- considered in the entire context is something I'll have to consider, but that's what I see as being the difficulty.
MR. MYHRE: Well, and I think that's the instruction that would have to be given. This evidence is --
THE COURT: We rely a great deal on jury's to follow the instructions they're given, and I simply wonder whether that one is asking a bit much of them.
MR. MYHRE: And, again, Your Ladyship has to weigh out against the probative value.
THE COURT: So, on the probative value, one consideration is what, if any, weight it will have in the context of all of the evidence. Is there other evidence indicating -- in the Crown's submission indicating intention to cause her to fear for her safety or is that the only evidence indicating that?
MR. MYHRE: When Ms. Capuano talks about fearing for her safety, she's primarily concerned -- she has that concern for her physical safety, and I think it is just that, that -- that it's quite conceivable to her that Mr. Fox would come across the border and shoot her. And her other main concern can broadly be said to her fear for her psychological safety, Mr. Fox's intention to make her so miserable that she'll commit suicide, and the things that he's done related to that, which -- all of which I tried to be more detailed about and whether it was marked at the pretrial conference.
But, no, in terms of her physical safety, that is her concern that that could happen based on the statements and emails and the blog posts.
THE COURT: Is there other evidence other than, if it's proven, Mr. Fox shipping the firearms into the U.S., is there other evidence that the conduct he engaged in was intentional in the sense that it was intended to cause her to fear for her safety?
MR. MYHRE: Well, Your Ladyship has seen a few of the statements that he made, so there's that evidence. "I have firearms, I could send you the pictures, I go to the shooting range, I cross the border whenever I want to," so there are those statements that he has made to her, and then there is the blog posts, so that is the other evidence around this threat that she perceives to her physical safety and, I suppose, in the context of all of the evidence of a person who has made it their life's goal to have her end her life.
THE COURT: Okay.
MR. MYHRE: The other type of prejudice that we talked about is the potential to distract the jury. In my submission, because this evidence is relevant to the criminal harassment charge, it can't even really be said to be a distraction. It's not a -- in terms of the amount of time that would be spent on this at the trial, it may be one-tenth of the overall evidence.
The next factor is the legal and factual nexus between the counts. Because of the way they arise close in time, they are both, as I said, discussed in the -- Mr. Fox's statement to police, which raises a side issue if Your Ladyship rules that there should be severance and -- and also rules that that evidence is not relevant or not sufficiently probative, the Crown's going to have -- [indiscernible] that statement so that the discussion around the firearms being shipped is removed from the statement.
The next factor in Last is complexity. I've already discussed that, whether Mr. Fox might want to testify on one count but not the other, and I can't speak to that. Efficiency, there's some minor efficiency in that the statement, there's the overlap with the statement, that's not a factor that's going to swing the balance here.
The next factor is the length of the trial, again that's been discussed. Mr. Fox's right to a speedy trial, it does put him under the thumb of the justice system for a while longer, that's true, but as Your Ladyship pointed out, it wouldn't be that much longer. Mr. Fox would, once one charge is dealt with, would certainly be entitled to apply for bail.
The court also mentions the possibility of similar fact or antagonistic defence, which aren't factors here.
So, to summarize, My Lady, clearly what the Crown is saying is that the factor that should carry this application is the factual legal nexus because of the probative value of this evidence. And, in my submission, when the jury hears about those steps that he took, with a strong inference that his threats were not idle threats when he made them, and that goes directly to his intention. And that view is consistent with what our Court of Appeal says in Taylor.
Those are my submissions.
THE COURT: Thank you. All right. We're at the time for the afternoon break. We'll take a break --
THE ACCUSED: Okay.
THE COURT: -- unless you wish to say something first --
THE ACCUSED: No, no nothing.
THE COURT: -- Mr. Fox, or have a question?
THE ACCUSED: Take the -- I have lots of things I'd like to say in response to that, but --
THE COURT: All right.
THE ACCUSED: -- thank you, My Lady.
THE COURT: We'll take the break and then we'll come back. All right.
(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)
(PROCEEDINGS RECONVENED)
SUBMISSIONS RE SEVERANCE FOR ACCUSED BY PATRICK FOX:
THE ACCUSED: And the first thing, My Lord -- or, My Lady, that I would like to clarify, the s. 93 charge does not relate in any way to the sending of my firearms to the U.S. because the s. 93 only has to do with having the firearms in my possession at a place not authorized by my ATT. In this allegation it's merely coincidental that it happened to be the shipping company, and I -- I went there because I think it's very -- it's very relevant in considering I was originally also charged with s. 103 which is unlawful exportation of firearms knowing them to be unlawful, and that charge was stayed after I brought it to Mr. Myhre's attention that no authorization was required for me to export my firearms to the U.S. So I think that that's something that might cause some confusion with the jury or might mislead them.
Like unless it's clearly stated to them that the s. 93 charge in the allegation is only that I possessed my firearms in a place where my ATT didn't authorize to do so, but it's not necessarily related to the shipping or the sending of those firearms to the U.S.
THE COURT: All right. Mr. Myhre can correct me if my understanding is wrong, but I would think that what the Crown relies on here is your, if it's proven, taking the firearms to the depot in Burnaby to have them shipped, and that that would the offence because at that point they're not in the place that's authorized. And the Crown would then propose to lead evidence not directly supporting the Count 2 charge, but it would be in a way the gateway to the Crown lead -- leading evidence of the firearms being in the U.S., and where they went to. Am I correct on that, Mr. Myhre? Without that Count 2 charge --
THE ACCUSED: But in the context of s. 93, would it really matter, would it be relevant at all what the reason was that they would have been taken to the shipping depot? I mean, the simple fact that they were at the shipping depot and that I was there at that same time would make the requirement of s. 93 regardless of why I brought them there.
MR. MYHRE: Well, if I could explain the evidence of the guns being in California is relevant to the s. 93 charge because it proves that they were in the boxes that were taken to the Packaging Depot, so I can't prove that they were in there unless I have that evidence.
THE ACCUSED: Mm-hmm.
MR. MYHRE: And to go to Your Ladyship's point, for example, even if Mr. Fox conceded they were in those packages, I would still be seeking to lead that evidence that he did send them to California for the reasons articulated on the criminal harassment charge.
THE ACCUSED: And I would -- I would like to or maybe request some clarification from Mr. Myhre, hmm, I had never stated nor admitted that I had shipped the firearms to Los Angeles. I had said that I had sent them to Los Angeles. It was the constable that had used the word shipped, and then because he used the word shipped, I used it once, but then immediately corrected myself because I didn't want to create the impression that I had formally done the process of putting them into a box and then actually shipping them, as opposed to simply taking them to the border and handing them over to somebody, or simply taking them myself down to California.
Because Mr. Myhre, I did notice, was using the word shipping frequently, and then yourself as well. Of course, you were assuming that I had shipped them because that's what Mr. Myhre was saying.
THE COURT: All right.
THE ACCUSED: And there's also another point I would like to clarify, the use of the word sneaking across the border or entering the United States illegally. Now, I have maintained over the course of my entire life almost that I am a United States citizen by virtue of being born in the United States. If that is the case, then I'm not required to go through a port of entry to enter the United States.
So, if what I believe and what I maintain is the truth and the reality, then I didn't actually enter the United States illegally, and I think that's further supported by the fact that, on numerous occasions, U.S. -- U.S. authorities had arrested me in the United States, charged me with illegal re-entry and various other related charges, including this most recent time only to, once they've done their investigation, drop all of the charges and simply hand me over to Homeland Security or to ICE to be sent back here to Canada again.
Okay. Now, I could address or would like to address some of the points in the exhibits here. The first, with respect to Ms. Capuano's statements, unfortunately she's not present to be cross-examined on any of these statements, so we would just have to assume that they're true and correct, so I can't really say anything further about this until the trial, and I'm sure at that point the truth will come out on these matters.
So, then if we move, though, to the first email, which was marked as page 1, now the highlighted section by Mr. Myhre toward the bottom of that page kind of starts in the middle of the paragraph, and if you were to start reading from the beginning of that paragraph so it provides a lot more context, I think it makes a lot more sense, but if we even take it a step -- take it a step farther back than that, and understand that what's being responded to in this email was that Desiree has over the years, or Ms. Capuano has over the years consistently accused me of being a compulsive liar, saying that I can't be trusted, that everything that I say and do is false, saying that my identification here in Canada is false, that my name is not really Patrick Fox, etc. So that's what I was responding to in this email.
Now, the issue of the PAL, the reason the PAL was brought up in here is, on the one hand, Ms. Capuano is insisting that I assumed the fake identity, and got fake identification up here under the name Patrick Fox, and I'm telling her, if that was the case, I would not be able to pass the background check to obtain a PAL because it would be too stringent. They would find out very quickly that such a person doesn't really exist. And on the next page, the P.S., the post script, I actually explained that to her, and that's why I mention the PAL.
And then on page 3, now this email, oh, this email has received a lot of attention in media and throughout this case, and much of the Crown's case, I believe, hinges on one statement in this email. Now, on the first page of it, page 3, the highlighted section there's a paragraph that comes before it where Ms. Capuano -- oh, and I should say, unfortunately the way this email is formatted and it's very difficult sometimes to see whose actually writing a given part. So the paragraph before that, Ms. Capuano says [as read in]:
Your stocker-like obsession with me is truly impressive. The amount of time and energy you spend thinking of me is flatting but honestly a little pathetic.
So the next paragraph, which is written by me, is responding to what she's saying there because, again, over the past few years she's repeatedly brought up these claims that I'm in love with her, that I'm obsessed with her, that I just need to let go and move on and find some new woman or -- or something of that nature.
But this particular email, as I've said, it's very long, and it had built up over the period of a few days, so to put this -- these responses in context, I think that one really has to start at the very beginning and understand the entire conversation, and I think to do that at this point would go beyond the scope and purpose of this hearing. I think that's something that we could leave for the trial.
But in that same email on page 6 is where the comment is made about the basis of her repeated claims that I have said that I would shoot her and that I would kill her and murder her, etc. Once again, the paragraph that comes before, the part that was highlighted, let's see, no, sorry, that's me speaking. It was the one line paragraph before that where Desiree says [as read in]:
He is the one [indiscernible] {G*****}. He is the one being hurt by your actions, scheming and manipulation.
Which again is another repetitive claim that she's been making.
And finally the blog posts at, well, I don't know what the page would be, but the -- the last few pages, the first thing that is relevant is, if you look at the date, if you look at the beginning of the blog posts, February 13th, 2016, so the post was written the day after I had done the CBC interview and, as I had stated earlier, Ms. Clancy had informed me of the allegations that Desiree was making and that those allegations were going to be broadcast on international television and on the -- the internet.
My main purpose with this blog post was to respond to those allegations before they got all over the television and all over the internet so that there would be another side for people to see.
Now, I personally don't think that there is anything threatening in any way in this entire blog post. The logistic section just tries to explain how, from my perspective, these allegations or these claims that I would go through all this trouble to go to Arizona to shoot her using my own guns, even though I could easily buy one in Arizona that could not be traced back to me, as we'll see at the trial, I'm sure, a lot of these stories are not going to stand up to much scrutiny.
So, the purpose of this blog post was to try to apply some scrutiny to some of the allegations that I was anticipating were soon going to be on the television and on the internet about me.
Unfortunately I don't have all of Ms. Capuano's statements with me at the time, so, I mean, I can refer to things that she said, but I don't have the proof to put it before the court. One thing that I think would be certainly relevant on the topic of firearms is that Ms. Capuano has admitted herself in a number of her statements with the RCMP that she has known that I've had firearms for all of my life, that I've been an avid shooter for all of my life, and I don't think it's a coincidence that these claims of fear for her safety related to my ownership of firearms coincided almost immediately with her moving in with the boyfriend that she had at the time when she filed the order of protection.
And speaking of the order of protection, that also, I think, would be relevant because the first time she ever claimed to have any fear for her safety from me was in the application for the order of protection, which she later stated in her statements to the RCMP that she actually only got an order of protection to try and get the website taken down, not because there was truly a fear for her safety, that statement that you have -- though Mr. Myhre has a copy of it here.
MR. MYHRE: Yeah, do you want it?
THE ACCUSED: If the court would want to? If you --
MR. MYHRE: You can't have it marked because I need that, but --
THE ACCUSED: Sure.
MR. MYHRE: -- you can read it.
THE ACCUSED: Shall I read to you what --
THE COURT: If you wish to bring something to my attention.
THE ACCUSED: So the constable -- okay, she says [as read in]:
And at that point, I mean, yeah, when she -- when she says you -- hang on, when she...
I'm not sure who she's referring to here, but:
... when she says, you know, you can't come around...
Oh, she's talking about the judge that issued the order of protection, I'm sorry.
... you can't come around, but it's like, well, that's not really going to do me any good but my thinking and my feeling on this was that the order of protection is what is required to take down the website, right is.
And then the constable says:
Yes.
And then she says:
It's -- I need that in order to have any legal basis to remove any of the things that he's done, and that's what I needed it for, and so while it didn't really help with him coming into contact with me, it did help with court in other ways, and that's why we went after it.
So, I think statements like that, I -- I think that that's a fairly significant contradiction on her part because a lot of this started from that order of protection that she obtained in Arizona, but I think that that goes, to some extent, to show that I don't believe there's a lot of credibility to her claims that she's afraid for her safety or that she truly believes that I would ever do anything with respect to firearms or with respect to harming her period. It just --
THE COURT: Now, you don't need to be addressing the ultimate merits --
THE ACCUSED: Sure.
THE COURT: -- of the Crown's case against you on either of the two counts. Obviously that's what's going to be addressed in the trial, but tell me, if you would, what you have to say about the two charges staying together on the indictment, and going together into one trial as opposed to being in separate trials.
THE ACCUSED: I will admit, for the most part, I don't really have a preference or an opinion either way. I do believe there is some possibility that having the firearms charge on the indictment may mislead the jury into thinking that firearms or conduct with firearms are somehow related to the criminal harassment, possibly giving them the false impression that I have used my firearm ownership to intimidate or threaten Ms. Capuano.
Now, she, herself, has admitted again in statements to the police that no such threats have -- have ever occurred, and that she doesn't believe that I would ever physically harm her, which I realize completely contradicts the other statement that she thinks I'm going to go there and shoot her.
That's really the only reason that I would have a concern about the two counts being on the same indictment.
THE COURT: All right. Thank you. Anything else you want to add?
THE ACCUSED: No.
THE COURT: Mr. Myhre, anything else?
MR. MYHRE: My Lady, I would just ask that when you do provide us with the memo specifying plainly what your decision is on the severance application, that you also inform us of your view of the admissibility of the evidence that the guns are in California because it's conceivable you could say that is admissible evidence on the criminal harassment count, there should nonetheless be severance.
THE COURT: Wouldn't that be unlikely because wouldn't it be that the concerns that would lead to an order for severance would also militate against the evidence being admitted or am I missing something?
MR. MYHRE: No, I think that is --
THE COURT: Is there an avenue in which you could get to --
MR. MYHRE: It's quite likely they would both go together, but it's conceivable because there are so many factors to be considered on severance that you would decide should be severed, that the evidence could still be tendered.
And maybe just so there's no ambiguity, if Your Ladyship does rule that that evidence is not admissible, the evidence that the Crown won't be calling is the evidence from the ATF agent, the evidence from the person at the Packaging Depot, and the Crown will be vetting portions of Mr. Fox's statement that deal with shipping his firearms.
I don't think -- and I think that would be it then.
THE COURT: All right. Thank you. Anything further from either of you?
THE ACCUSED: No.
THE COURT: I will take away the materials I've been given, think some more about the submissions you've each made. I'll send a brief memo which will simply have the result, no reasoning, and the reason I'm doing it that way is that it's not appropriate for a court to be issuing reasons through a memorandum because that's not a publicly available document, and also that sometimes there's a temptation to give very brief reasons in the memorandum and then expand on them later in the official reasons, but it's not appropriate to be giving essentially two sets -- two sets of reasons. So you'll get a yes/no kind of answer.
Now, for the jury selection on Tuesday, Mr. Myhre, you're not going to be there?
MR. MYHRE: It is possible, but --
THE COURT: Ah.
MR. MYHRE: -- that would mean my trial had collapsed.
THE COURT: I'm thinking we're probably going to need another pretrial conference before we start the actual trial.
MR. MYHRE: I think that's prudent.
THE COURT: Should we book one now, choose a date now?
MR. MYHRE: My Lady, I'm available the morning of June 6th, anytime on June the 7th, and the morning of June the 8th and the morning of June the 9th.
THE COURT: And then when do we start the trial, on the 12th?
MR. MYHRE: Yes.
THE COURT: And how long are you thinking we might need, and I suppose it's hard to know?
MR. MYHRE: It could be quite brief if everything is ready to go. I am going to get Your Ladyship the book of documents ahead of time. I'll try to do that -- I've asked my assistant if she could get it done for Monday. She's juggling a few things so she said she would try.
THE COURT: If those could come to me at the jury selection, that would work.
MR. MYHRE: Okay.
THE COURT: Should we say the morning of the 9th, the Friday before the actual trial; is that --
MR. MYHRE: Well, I think earlier in the week would be better, but that's subject to your availability.
THE COURT: Well, it's that interrupts other trials that I may be doing and Fridays tend to be better. Unless we simply have something from 9:30 to 10:00, but once we're into the regular scheduled court time, it makes it very awkward to have it through the -- the day. If it's --
MR. MYHRE: I was thinking a morning at 9:30.
THE COURT: Oh, I see. Well, then --
MR. MYHRE: And if it turned out that we need more time, then maybe re-adjourn until Friday.
THE COURT: That's a good idea. So how about --
MR. MYHRE: Could I suggest the morning of the 7th?
THE COURT: Yes.
MR. MYHRE: Thank you.
THE COURT: Is that all right for you, Mr. -- Mr. Fox?
THE ACCUSED: Yes, it is. Thank you.
THE COURT: So 9:30, Wednesday June 7th.
THE SHERIFF: My Lady, might I inquire where -- where he is, North Fraser or --
THE ACCUSED: North Fraser.
THE SHERIFF: It may be a challenge to get him here at 9:30.
MR. MYHRE: Should we -- that's the only thing that's --
THE ACCUSED: How much time for a pretrial conference?
THE COURT: Shall we --
MR. MYHRE: Is a lunchtime pretrial conference a possibility? I realize that's draining if you're in a trial already.
THE COURT: That could be. Would that be better?
THE SHERIFF: Lunchtime is fine, My Lady. It's just the 9:30 sometimes the truck doesn't get here until about a quarter to 10:00.
THE COURT: All right. So 1:15, does that work?
MR. MYHRE: That's fine with me.
THE SHERIFF: I will check, My Lady.
THE COURT: Thank you.
MR. MYHRE: My Lady, just with respect to if -- if Your Ladyship does order severance, in terms of the procedure, can that count simply be stayed by the Crown on the morning of jury selection -- or not stayed, but be -- do we have to swear a new indictment?
THE COURT: I think you do.
MR. MYHRE: It's probably the simplest and the cleanest.
THE COURT: I think -- well, perhaps you should look into this, but bear in mind that usually a jury is given the indictment. Now, ooh, I have done cases in which, for some reason, the jury is not to see a count on the indictment that is not going to be before them, and in that case, with everyone's agreement, we did a mock-up of the indictment and gave it to the jury with the missing information taken off it so that it looked like an ordinary indictment.
MR. MYHRE: Well, I think if -- if I was to know Your Ladyship's decision late Friday or even very early Monday I could be in court Monday, but I can ask one of my colleagues at the 865 Hornby office to have a new indictment sworn on Monday so it's ready for Tuesday.
THE COURT: If you're worried about the jury selection process, I guess that's probably a wise idea. I was going to say the court clerk could be told to simply read one charge -- charge, but I may not be the presiding judge and one never knows if all will go as smoothly as intended if we're taking unusual steps.
All right. We will adjourn.
THE CLERK: Order in court.
(PROCEEDINGS ADJOURNED TO JUNE 7, 2017, AT 1:15 P.M., FOR PRETRIAL CONFERENCE)
Transcriber: C. Banks