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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.
June 12, 2017
REGINA v. PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
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 AND JURY)
Vancouver, B.C.
June 12, 2017
REGINA v. PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
COPY
BAN ON PUBLICATION - INHERENT JURISDICTION
  • Crown Counsel:M. Myhre
  • Appearing on his own behalf:P. Fox
  • Defence Counsel:A.J. Lagemaat
    M Chatha, A/S
J.C. WordAssist Ltd. (Vancouver)
Suite 614 - 808 Nelson Street, Vancouver, B.C. V6Z 2H2
Phone 604-669-6550

INDEX

  • OPENING REMARKS TO JURY BY COURT:8
  • OPENING REMARKS TO JURY BY CROWN:31

WITNESSES FOR THE CROWN

  • DESIREE CAPUANO1
    • EXAMINATION IN CHIEF BY MR. MYHRE:2
    • EXAMINATION IN CHIEF BY MR. MYHRE, Continuing:7
    • EXAMINATION IN CHIEF BY MR. MYHRE, Continuing:13

EXHIBITS

  • MARKED A FOR IDENTIFICATION: Work Absence Certificate for Juror 11 dated June 2, 20173
  • MARKED B FOR IDENTIFICATION: Letter from employer re Juror 12 dated June 9, 20173
  • MARKED C FOR IDENTIFICATION: Document titled "Opening Instructions to the Jury"8
  • MARKED D FOR IDENTIFICATION: Note from juror re being unable to hear34
  • EXHIBIT 1: Brief titled "Excerpts from www.desireecapuano.com"8

RULINGS

  • Ruling re application for ban on publication of children's names35
Proceedings

BAN ON PUBLICATION - INHERENT JURISDICTION


Vancouver, B.C.
June 12, 2017

(JURY OUT)
THE CLERK: In the Supreme Court of British Columbia, at Vancouver, this 12th day of June, 2017. Calling the matter of Her Majesty the Queen against Patrick Henry Fox, My Lady.
MR. MYHRE: My Lady, Mark Myhre appearing for the Crown.
MR. LAGEMAAT: My Lady, my name is Lagemaat, L-a-g-e-m- a-a-t, first initial T., and as you're aware, I've been appointed under 486.3(2) to cross-examine the complainant, and with leave of the court I ask that an articling student can be up here to assist with note-tasking, and her name -- last name is Chatha.
THE COURT: Just hold on for a moment, please. My computer is frozen.
MR. LAGEMAAT: Sorry.
THE COURT: Yes. Thank you.
MR. LAGEMAAT: And her last name is Chatha, spelled C-h-a-t-h-a, first initial M., articling student.
THE COURT: All right. Thank you. No objection?
MR. MYHRE: Thanks, My Lady.
THE COURT: And, Mr. Fox, generally in the trial you are representing yourself, I understand?
THE ACCUSED: Yes.
MR. MYHRE: My Lady, there are a couple of things we should address at the outset before the jury comes in.
THE COURT: Well, I've got a couple of things, as well, but go ahead.
MR. MYHRE: The first is the publication ban. There is a publication ban existing from the Provincial Court proceedings under s. 486.5 of any information that could identify the complainant. I've discussed this with the complainant. She does not want a publication ban. And, so, in my submission, that can be rescinded.
THE COURT: I thought I made such an order, or perhaps I just asked whether there was such an order in place and I was told that there was last time we were in court. I just want to make sure that if the ban is to be rescinded that it's rescinded, all versions of the ban are rescinded. All right. And that's definitely her wish?
MR. MYHRE: Yes.
THE COURT: All right. Any submissions on that, Mr. Fox? Now, who do I ask, Mr. Lagemaat?
MR. LAGEMAAT: I'm going to just ask you a couple of questions once we get through this about your intended role of me here in this trial. But it's my understanding I'm here merely to cross-examine the complainant.
THE COURT: All right. Mr. Fox, any difficulty with that?
THE ACCUSED: No, no. In fact, I fully support that.
THE COURT: All right. So, the ban that was previously made under s. 486 point, help me here, Mr. Myhre, I've got it --
MR. MYHRE: Point 5.
THE COURT: Point 5 of the Criminal Code, that restricted the publication of any information identifying Ms. Capuano is rescinded. There is nonetheless a ban that remains in place, a standard ban that applies as a matter of law, that anything that takes place in the courtroom in the absence of the jury, the subject of anything that takes place in the absence of the jury, may not be published in any way until the jury, the Criminal Code says, has retired to consider its verdict. All right.
MR. MYHRE: The next matter, I'd like to deal with a couple of evidentiary issues of things that I don't understand to be disputed by Mr. Fox. And the first one is, you may recall at the pretrial conference Mr. Fox --
THE COURT: Can this be done after we've dealt with the jury, and remember, we have two alternates here who may or may not be needed.
MR. MYHRE: Yes.
THE COURT: All right.
MR. MYHRE: Just, then, on the subject of the jury, I understand that Your Ladyship would like me just to canvass the witness list again at some point with them?
THE COURT: At some point, yes, but not yet.
MR. MYHRE: And the last thing about the jury, in my submission, there should be a caution about going online and doing their own research.
THE COURT: There will be.
MR. MYHRE: Then that's all for the moment, My Lady.
THE COURT: I understand there was such a caution at the jury selection, and that the jury was advised in fairly strong terms about that after they were selected.
Two issues concerning jurors that I need to discuss with you. One of them relates to juror 11, and I'm using the number as selected. So, of the 12, juror 11. And there's a note from a medical doctor indicating that the juror, for medical reasons, is considered unfit to start jury duty.
Now, Mr. Fox, you're entitled to see this note if you wish to do so. I can assure you that the medical reasons are such that it would not be appropriate for the juror to serve. Do you wish to see this note?
THE ACCUSED: No. No, I don't think that's necessary.
THE COURT: All right. Mr. Myhre?
MR. MYHRE: No, My Lady.
THE COURT: So, I will excuse juror 11 and we'll need to draw on one of the alternates. Madam Registrar, this note should be marked as an exhibit for identification, but sealed, please.
THE CLERK: That's Exhibit A for identification.
THE COURT: Please.
MARKED A FOR IDENTIFICATION: Work Absence Certificate for Juror 11 dated June 2, 2017
THE COURT: The next juror issue relates to juror 12, and I'm going to give you copies of the letter that I've received, Mr. Fox and Mr. Myhre. I've blanked out the name of the juror. Madam Registrar, this -- this could be the original without the name blanked out. It can be Exhibit B.
THE CLERK: That's Exhibit B for I.D., My Lady.
THE COURT: And should also be sealed, please.
MARKED B FOR IDENTIFICATION: Letter from employer re Juror 12 dated June 9, 2017
THE COURT: The issue as I see it with this request is that it comes from an employer, and clearly it's the employer's interests that are put forward as the reason to excuse the juror and not anything emanating from the juror.
The only thing that relates directly to the juror is that the employer seems to assume that if the juror is serving on the jury he will nonetheless continue to work on evenings and weekends in order to keep the workload above water during the trial. That's not a desirable situation because, as we all know, jury duty can be much more demanding than people expect it to be. I would not like to see a situation where a person is essentially keeping their fairly demanding job going while also serving as a juror, and I would imagine it would be open to the court, although I'd appreciate submissions on this, to direct that the juror not do that.
Nonetheless, we have a request from the employer saying that because this juror is a valuable employer -- employee, the employer requests that the juror be released.
Do you have submissions on this, Mr. Myhre, Mr. Fox? I'd appreciate your submissions.
THE ACCUSED: I have no objection.
THE COURT: No objection to?
THE ACCUSED: To excluding the juror.
THE COURT: All right.
MR. MYHRE: I don't, either, My Lady. It seems like a very difficult position to put this person in. I would only say that if Your Ladyship does decide to keep this juror on that, I'm not sure about a direction, as in a court order, but Your Ladyship might phrase something to him that he can then take back to his employer if he needs to. But ultimately, I think it would have to be up to him, whether he or she tries to fulfil their obligations at work.
THE COURT: All right. I think I'm inclined to ask the juror some questions and get the juror's own view as to whether he wishes to serve or not, and what he contemplates taking place. So, perhaps what we'll do, first I will ask the other juror, 11, to come in briefly, and I will excuse him.
Good morning, sir. I've received a note written by your physician. I have described it only very, very general terms, no details, to counsel and to Mr. Fox. I'm of the view that you should be discharged from jury duty, if that is what you wish?
A JUROR: Yes, it is.
THE COURT: And there's no objection to that. And, so, I thank you for coming this morning. I discharge you from jury duty and wish you well.
A JUROR: Thank you, My Lady.
THE COURT: Thank you. And juror 12, please. Sir, thank you. I have a letter from your employer asking that you be released from jury duty. I've read the letter. I've discussed it with counsel and Mr. Fox. It looks to me as though the employer is considering the interests of the company rather than your interests, or your duty to serve as juror, as all citizens are required to do from time to time.
The request that you be released from jury duty, is that your request or is that your employer's request?
A JUROR: Well, I think both, because I didn't know [indiscernible/not at microphone].
THE COURT: I'm sorry, I'm having trouble hearing.
A JUROR: Okay. Because originally I thought it would be two weeks, the trial [indiscernible/not at microphone] for the last week I have to take care of my [indiscernible].
THE COURT: If you were serving as a juror, would you expect to also be working for your employer?
A JUROR: Yes, because the contract we just signed is a really big contract [indiscernible/not at microphone]. That's why I told my [indiscernible] and try to get the project [indiscernible].
THE COURT: That's not really a very viable situation. Serving as a juror, the hours are not particularly long, as you know, but it -- experience tells that it's much more tiring than people expect. We certainly hear that from jurors after a trial. They find it very, very surprising how tiring the process is. So, it's not really reasonable or viable to expect to be able to carry a job as well as doing jury duty.
Do you have any additional submissions, Mr. Myhre?
MR. MYHRE: No, My Lady.
THE COURT: Mr. Fox?
THE ACCUSED: I do not.
THE COURT: All right. I'm going to discharge you as a juror. To be quite candid, I'm not pleased about doing so because I do detect that your employer is putting the interests of the company far ahead of your duty to the country to serve as a juror from time to time.
And, nonetheless, I'm concerned that your employer would be putting you in a difficult position if you were to serve as a juror. And with the additional difficulty with childcare, although that's one that might well be able to be sorted out. But taking everything into account, and given that we do have alternate jurors here, I am going to discharge you. So, you're free to leave. Thank you.
MR. MYHRE: My Lady, did this get marked?
THE COURT: I think it did, as Exhibit B, sealed. So the copies should, I think, come back, please. Thank you.
All right. Is there anything else we should deal with before we begin with the jury, and we need to substitute the alternates in.
MR. MYHRE: There were the two evidentiary things that I wanted to deal with, but we could do that now or after the charge.
THE COURT: After the preliminary instructions. How long do you think it will take to deal with them?
MR. MYHRE: Less than five minutes.
THE COURT: All right. I think we'll go ahead now, deal with the preliminary instructions and, Mr. Myhre, you were going to read a list of witnesses.
MR. MYHRE: Yes.
THE COURT: All right. So, at what point do we do that? I think what we might do is bring the jury and the alternates in, substitute in the alternates, do the arraignment, I'll make the preliminary instructions, and in the course of those I'll ask you to read out the list of witnesses, and then we'll take a break, and that will give an opportunity for any jurors to raise a concern arising from the list of witnesses, if there is such a concern. Does that sound reasonable?
MR. MYHRE: Yes. My Lady, could I just poke my head outside and tell the complainant that she won't be needed for at least 45 minutes from now?
THE COURT: Certainly. It will be about an hour.
MR. MYHRE: Thank you.
THE COURT: All right. Ready?
MR. MYHRE: Yes.
THE COURT: Could we have the jury with the alternates, please?
(JURY IN)
THE SHERIFF: The jury, My Lady. It will just be a moment, My Lady.
THE COURT: All right. Good morning, members of the jury. Please have a seat. My name is Madam Justice Heather Holmes. Thank you for coming this morning. I understand two of you are the alternate jurors who were selected at the jury selection. I did not preside at the jury selection, a different judge did.
And I understand that of the two alternate jurors you took your oath as jurors at that time. Am I correct in that understanding? Thank you. And thank you for stepping in and joining the jury. And you are now at this point members of the jury, just like everyone else.
Madam Registrar, can you begin with the putting in charge, please, and then I will make some preliminary remarks.
THE CLERK: Members of the jury, the accused stands charged by the name of Patrick Henry Fox.
Patrick Henry Fox stands charge that,
Count 1: Between January 11, 2015 and May 27, 2016, inclusive, at or near Burnaby and Surrey, in the Province of British Columbia, did without lawful authority and knowing that another person was harassed or being reckless as to whether the other person was harassed, engage in conduct that caused the other person, Desiree Capuano, to reasonably fear for her safety or the safety of anyone known to her, contrary to Section 264 of the Criminal Code.
Count 2: Between May 18, 2016 and June 3, 2016, inclusive, at or near Burnaby, in the Province of British Columbia, being the holder of an authorization or a licence under which he may possess a prohibited firearm, restricted firearm or non-restricted firearm, prohibited weapon, prohibited device, or prohibited ammunition, did possess firearms, at a place indicated on the authorization or licence as being a place where he may not possess it, or at a place other than that indicated on the authorization or licence as being a place where he may possess it, or at a place other than that where it may be possessed under the Firearms Act, contrary to Section 93(1) of the Criminal Code.
And upon these charges he has been arraigned, and upon his arraignment has pleaded not guilty to each charge, and for his trial has put himself on his country, which country you are.
You are charged, therefore, as to inquire whether he is guilty of the offences, or either of them, whereof he stands charged, or not guilty, and to harken to the evidence.
THE COURT: Members of the jury, I'm going to make some preliminary remarks to give you an idea of what to expect in the trial as far as the procedure that we'll follow. My remarks are reproduced in writing. I'm going to give you copies of the written version of them, but you can follow along with if you wish. What I say to you is the official version, not what you see in the written version, but some people find it easier to take things in if they have a written version, as well. I will ask that you not read ahead of me as I go through these.
Mr. Sheriff, there are 12 copies there. I have copies here for Mr. Myhre, Mr. Fox. One should be marked as the next exhibit for identification, and Mr. Lagemaat can have one if he wishes.
THE CLERK: That would be Exhibit C, My Lady.
THE COURT: Thank you.
MARKED C FOR IDENTIFICATION: Document titled "Opening Instructions to the Jury"
OPENING REMARKS TO JURY BY COURT:
THE COURT: Members of the jury, you've been chosen to decide this case. The oath or affirmation you've taken requires you to listen closely to the evidence that will be presented, and to decide the case solely on that evidence and the instructions that I will give you.
I'll now describe your duties as jurors and the procedure that we'll follow during the trial. I will also explain to you some of the rules of law that apply in this case.
During and at the end of the trial I will give you specific and detailed instructions about the rules of law that apply to this case. You must listen carefully to all of these instructions.
As to your duties, you are the sole judges of the facts. You must decide this case solely on the evidence presented to you in this courtroom. And I'm going to come back to that because it's extremely important, as are all the other instructions I give you.
I am the sole judge of the law, and it is your duty to accept the law as I explain it to you. You must choose your own ideas about what the law is or should be, and you must not rely on information about the law from any other source.
So, what is evidence? To decide what the facts are in this case you must consider only the evidence presented in the courtroom. Evidence is the testimony of witnesses who will be testifying from the witness box here, and things that are entered as exhibits, and from time to time we'll do that. We'll give them an exhibit number, and at the end of the trial you'll have them with you in the jury room.
The evidence may also consist of admissions. The evidence includes, and I'm speaking here of testimony given by witnesses, it includes what each witness says in response to questions asked. The questions are not evidence unless the witness agrees that what is asked is correct. Only the answers are evidence.
The Crown and the defence may agree about certain facts. When that happens no evidence is required. Whatever they agree about is a fact in this case. That is called an admission.
There are also some things that are not evidence. You must not consider or rely upon them to decide this case. If I instruct you to disregard any evidence it is your duty to do so. In particular, the charge in the indictment, actually, two charges in the indictment that you have heard read out is not evidence.
What the lawyers or Mr. Fox say when we speak to you during the trial is not evidence. What people outside this courtroom say or have said about this case is not evidence. And that includes what may be said in radio, television, newspaper, internet reports about the case, or what you may have heard about the case from other people. That is not evidence. You must ignore it completely. You must avoid all media coverage of this case. You must consider only the evidence presented to you in this courtroom.
Now, sometimes evidence can be presented only for a specific purpose and not for other purposes, and if that happens in this trial I will tell you about how you may use the particular evidence in deciding this case, and how you may not use it in deciding the case. You must consider the evidence only for the purpose I describe. You must not use it for any other purpose.
I'm going to talk now about direct and the circumstantial evidence. Suppose the question is whether it was raining outside. A witness testifies that he or she saw it raining outside. That is direct evidence of the fact that it was raining.
Contrast that with a witness who testifies that he or she saw someone enter the courthouse wearing a raincoat, carrying an umbrella, both the raincoat and the umbrella dripping wet. You might infer from that testimony that it was raining outside. That is circumstantial evidence of the fact that it was raining outside.
Exhibits may also provide direct or circumstantial evidence. In making your decision you can take both kinds of evidence into account. Your job is to decide what conclusions you will reach based upon the evidence as a whole, direct and circumstantial.
Keep an open mind as the evidence is being presented. Do not be influenced by sympathy for or prejudice against anyone. During the trial you may discuss the case amongst yourselves, but only when all of you are together in the jury room. You must not, however, come to any conclusions about the case until you've heard all of the evidence, and listen to the closing addresses for both sides, and receive my instructions about the law. Keep an open mind.
Some of your family, friends, fellow workers, or others, may ask you about jury duty. You must not talk to them about the case, nor should you discuss the case with anyone involved in it, whether Mr. Fox, Ms. Capuano, who is the complainant in this case, friends or family of either of them, or with any of the witnesses, or the investigating officers, or the lawyers, or any of the friends or families of any of those people.
Now, if you see any of those people around the courthouse you may give a very short, polite greeting, a nod hello, but do not talk about the case to anyone except your fellow jurors. Best advice is keep your greetings very short and say nothing more to anyone with any involvement in the case.
If anyone approaches you to discuss any part of the case please tell that person that you cannot discuss it. You can say the judge has told you that you must not. If the person doesn't stop, please tell me about it and I'll deal with it.
When you arrive at the courthouse each morning and return after lunch, please go straight to the jury room. Likewise, when you leave at lunchtime or at the end of the day, please leave directly from the jury room. Do not linger around the halls or other places before or after the court sittings.
Finally, remember your role is as jurors, not lawyers, or researchers, or investigators. You must not investigate or seek out any information or do any research about the case, or about the people involved in the case, or about the law that applies to the case. Do not consult other people or other sources of information, whether printed or electronic.
Now, you will hear that this case involves a website, and emails, and blog postings. Do not, and I say this as firmly as I can, do not seek out any information about that website. Do not go on the internet looking about it. You are to decide this case based on the evidence presented in this courtroom.
Do not use the internet or electronic device in connection with this case in any way, and that includes chat rooms, Facebook, Myspace, Twitter, apps, any electronic social network. I'm sure that list is out of date by now. It covers -- it's meant to cover everything.
Do not read or post anything about this trial. Do not engage in tweeting or texting about this trial. Do not discuss or read anything about this trial on a blog. Do not discuss this case by email. You must decide this case solely on the evidence you hear in the courtroom. What you may see or hear in the media, or from any other source outside the courtroom, is not evidence and you must ignore it. We count on you to follow this advice, these instructions, so that the trial is a fair one.
I'll talk to you now briefly about the procedure we'll follow in the trial. Crown counsel is Mr. Mark Myhre. The Crown prosecutes the case. Mr. Fox is on trial in this case. He will be conducting his own defence in the trial, except that Mr. Tony Lagemaat will be conducting on Mr. Fox's behalf the cross-examination of the Crown's first witness. And Mr. Lagemaat has, assisting him here today, an articling -- his articling student, and I'm pronouncing this correctly, Ms. Chatha?
MS. CHATHA: Chatha.
THE COURT: Chat?
MS. CHATHA: Ms. Chatha.
THE COURT: Can you spell it for me again?
MS. CHATHA: Sure. C-h-a-t-h-a.
THE COURT: Ah, that's where I went wrong. Thank you.
MS. CHATHA: You're welcome.
THE COURT: And my apologies.
The Crown will present its evidence first because it has the burden of proving the charge. Before presenting evidence the Crown may make an opening address to you about the case.
After the opening address the Crown will call witnesses to the witness box. Various things may also be filed in evidence as exhibits. Facts that are admitted by the defence may also be part of the Crown's evidence.
All persons charged with an offence are presumed to be innocent under our law. This means that they do not have to prove their innocence. They do not have to testify or present evidence. The law requires the Crown to prove the charge beyond a reasonable doubt.
If the defence does choose to present evidence it may also make an opening address. In making their opening addresses the Crown and the defence may summarize the evidence they intend to present and refer to some principles of law. But remember that what they say about the evidence is not itself evidence for you to consider in deciding the case. What they say about the law is only meant to help you understand the issues to which the evidence may relate. I will explain to you which principles of law apply to your decision, and it is your duty to follow my instructions.
When the Crown or the defence ask questions of witnesses they have to follow certain rules. One set of rules applies when they question witnesses they have called, they have called, and these questions are called examination in chief or direct examination.
Another set of rules applies when they question witnesses that the other side has called, and these questions are called cross-examination. Examination in chief or direct examination always comes first, then the other side has an opportunity to cross-examine the same witnesses, the same witness, I should say.
After a witness has been cross-examined the side who first called that witness may be permitted to ask additional questions to clarify or explain matters that have come up in cross- examination, and this is called re-examination.
Now, notetaking. We depend on the memory and judgment of all jurors to decide the case. If you want to take notes during the trial to help you remember what a witness said you are free to do so, but remember that you may find it difficult to take detailed, accurate notes, and at the same time pay close attention to what witnesses are saying and how they are saying it.
If you take notes do not be distracted from your duty to observe the witnesses. You may always ask to hear a recording of a witness' testimony, or have some evidence read back to you, but you will only have one chance to observe the appearance and behaviour of the witnesses when they testify.
To protect the secrecy of your work you must not take your notes with you at the end of our sittings each day. We will make arrangements to keep the notes in a secure place and return them to you when we resume sitting the following day. If you decide not to take notes you must still listen carefully to the evidence.
Now, from time to time during the trial you may be asked to go to the jury room while counsel and Mr. Fox and I discuss legal issues. There was an issue this morning that I needed to discuss, and that's why we began a little late this morning. It's normal, and it should not concern you. We will do our best to minimize those occasions, but they do arise. I ask you simply to be patient if and when this happens, and I assure that if at any time you are excluded from the courtroom it's because it's necessary for that to take place.
When all of the evidence has been presented the Crown and the defence will each address you in a final address. They will tell you their positions and they'll refer to some of the evidence that they say you should rely on to reach the conclusion they suggest. They may also refer to some of the rules of law to help you understand their positions better, but again, it's for me as the trial judge to tell you what rules of law apply and what they mean. You must follow my instructions on the law. If there is difference between what I say and what Mr. Myhre or Mr. Fox says about the law you must follow my instructions.
And after that will come my summing up or final instructions which will include a review of some of the evidence given during the trial. But you should always remember that it is only your memory and understanding of the evidence that counts in this case, not mine, and not that of counsel. You are the judges of the facts.
Next I want to speak to you about assessing a witness' testimony. It will be up to you to decide how much or little of the testimony of any witness you will believe or rely on. You may believe some, none or all of the evidence given by a witness. You must ask yourself whether the witness is truthful, and whether the witness is reliable, and I'll give you a few questions to consider during your discussions. These are not all the factors but are some of them. Did the witness have a good opportunity to observe the event that he or she described? How long was the witness watching or listening? Did anything interfere with the witness' ability to observe? Was there anything else happening at the same time that might have distracted the witness? Did the witness have a good memory?
Keep in mind the length of time that has passed since the date of the alleged offence. Was there something specific that helped the witness remember the details of the event that he or she described? Was there something unusual or memorable about the event so that you would expect the witness to remember the details? Or was the event relatively unimportant at the time so that the witness might easily have forgotten or be mistaken about some of the details? Was any inability or difficulty that the witness had in remembering events genuine, or was the witness' memory selective in order to avoid answering questions?
Was the witness able to communicate clearly and accurately? What was the witness' manner when he or she testified? But do not jump to conclusions, however, based entirely on the witness' manner. Looks can be deceiving. Giving evidence in a trial is not a common experience for many witnesses. People react and appear differently.
Witnesses come from different backgrounds. They have different intellects, abilities, values and life experiences. There are simply too many variables to make the manner in which a witness testifies the only or the most important factor in your decision.
Was the witness forthright and responsive to questions, or was the witness evasive, hesitant or argumentative? Did the witness give his or her testimony fairly, or was it tainted by self- interest or bias? Does the evidence disclose any reason why the witness might tend to favour the Crown or Mr. Fox?
Was the witness' testimony consistent with the testimony of other witnesses? As you know, people hear and see things differently. This means we should not be surprised to find discrepancies in their testimony. Minor discrepancies are often unimportant, but you may attach greater importance to more significant discrepancies.
Are there any inconsistencies in the witness' own testimony? If so, do these inconsistencies make the testimony more or less believable and reliable? Are the inconsistencies about something important or minor details? Could they be honest mistakes? Could they be deliberate lies? Are there explanations for them? Do the explanations make sense?
You must not decide an issue by simply counting which side has more witnesses. You may decide that the testimony of fewer witnesses is more reliable than the evidence of a larger number. It is the force of the evidence that counts, not the number of witnesses.
Consider these questions in the context of the whole of the evidence, use your common-sense to decide how much weight or importance you wish to give to the testimony of the witnesses.
I'll turn now to the fundamental principles that apply. The first and most important principle of law applicable to every criminal case is the presumption of innocence. Mr. Fox enters the proceedings presumed to be innocent, and the presumption of innocence remains throughout the case, unless the Crown on the evidence put before you satisfies you beyond a reasonable doubt that he is guilty.
Two rules flow from the presumption of innocence. One is that the Crown bears the burden of proving guilt. The other is that guilt must be proven beyond a reasonable doubt. These rules are inextricably linked with the presumption of innocence to ensure that no innocent person is convicted.
The burden of proof rests with the Crown and never shifts. There's no burden on Mr. Fox to prove that he is innocent. Mr. Fox does not have to prove anything. There may be minor circumstances arising in this case that -- I'll back up and correct that.
There may be subsidiary issues arising in this case in which there is a different burden of proof, and if that arises I will give you a specific instruction about it at the time.
Now, what does the expression "beyond a reasonable doubt" mean? A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in the proceedings. Rather, it is based on reason and common-sense. It is a doubt that arises logically from the evidence or from an absence of evidence.
It is virtually impossible to prove anything to an absolute certainty, and the Crown is not required to do so. Such a standard would be impossibly high. However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than it does to probable guilt. You must not find Mr. Fox guilty unless you are sure he is guilty. Even if you believe that Mr. Fox is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to Mr. Fox and find him not guilty because the Crown has failed to satisfy you of his guilt beyond a reasonable doubt.
I will explain to you later in the trial the essential elements that the Crown must prove beyond a reasonable doubt to establish Mr. Fox's guilt. Those are essential elements of the offences that are charged.
For the moment, the important point for you to understand is that the requirement of proof beyond a reasonable doubt applies to each of those essential elements, but it does not apply to individual items of evidence. You must decide, looking at the evidence as a whole whether the Crown has proven Mr. Fox's guilt beyond a reasonable doubt.
If you have a doubt -- I'll back up and correct that. If you have a reasonable doubt about Mr. Fox's guilt arising from the evidence, the absence of evidence, or the credibility, or the reliability of one or more of the witnesses, then you must find Mr. Fox not guilty.
So, in short, the presumption of innocence applies at the beginning and continues throughout the trial, unless you're satisfied after considering the whole of the evidence that the Crown has displaced the presumption of innocence by proof of guilt beyond a reasonable doubt.
If, based upon the evidence, you are sure that Mr. Fox is guilty of the offence with which he's charged you must convict him of that offence since that demonstrates that you are satisfied of his guilt beyond a reasonable doubt. If you have a reasonable doubt whether Mr. Fox is guilty of the offence with which he's charged you must give him the benefit of that doubt and find him not guilty.
Now, you've heard the indictment read. Mr. Fox is charged with two offences. I'll be telling you more about the charges later in the trial, and about the elements of the offences, or what Crown must prove beyond a reasonable doubt in order to prove the offences charged.
For present purposes I'll give you only a very brief summary. Count 1 is a charge of criminal harassment. It alleges that Mr. Fox engaged in conduct that caused Desiree Capuano to reasonably fear for her safety or the safety of someone known to her. Ms. Capuano is Mr. Fox's former spouse or partner. Mr. Fox is alleged to have used emails and a website between January 2015 and May 2016 to incite fear on her part.
Count 2 is a charge of possessing firearms at a place other than where authorized to do so. It is alleged in this charge that Mr. Fox was licensed to possess certain firearms, but that between May 18 and June 3rd, 2016 he had the firearms at a place that was not one where he was authorized to have them.
After all of the evidence has been presented I will give you complete instructions on the law that applies to the essential elements of the offences charged, and to any other issues that you must consider. You will -- I'm going to ask you to strike out the next few lines which shouldn't be there. As I said, you have to follow what I'm saying, not what I've said -- not what's in the written document.
Later I will ask you to choose one juror to act as your foreperson. The foreperson will lead your discussions and will announce your verdict in the courtroom at the end of the case. You do not have to choose that person immediately. As the trial continues, however, please think about which one of you would be best suited to perform that role. Get to know each other a little before you choose your foreperson.
Secrecy. All juror discussions are secret, except for telling me about any problems you must not tell anyone anything about your discussions, unless that information was disclosed in open court. To do so would be a criminal offence. You should feel confident that what happens in the jury room will always be private. This is to encourage full and frank discussion with your fellow jurors. In other words, you need not worry that something you say in the jury room will be repeated anywhere else.
If something happens during the course of the trial that may affect your ability to do your duty as a juror please write it down, put it in a sealed envelope and deliver it to Mr. Sheriff who will give it to me.
If at any time you have trouble seeing or hearing any part of the proceedings please let me know. Just put up your hand, make sure you get noticed and tell me.
We will be starting each day at ten o'clock, sitting through until lunch at 12:30. We'll have a 15-minute break usually around ten past 11:00. We're going to have one a little bit later today. The precise time will vary a bit from day-to-day by a few minutes. In the afternoon we'll start at two o'clock, we'll continue until 4:00, again with a 15-minute break usually around three o'clock.
There may be occasions when we'll need to go a little longer, perhaps a little earlier, depending on the witness schedule. Sometimes we will -- it's difficult to know precisely how long a witness will be in their evidence, and we obviously want to accommodate witnesses within reason.
The Crown and the defence will do their best to make sure that each day is filled. Sometimes it doesn't work out that way for reasons that we simply can't foresee.
From time to time it may be necessary for you to go somewhere, do something during the hours when we would normally be sitting. If it's important we will do our best to help you out. But please remember that we have to try this case within a reasonable time and in an organized way, and a fair way. So if something of this nature does come up, please let me know as soon as possible in a written note given to Mr. Sheriff and he'll give it to me.
Finally, in conclusion, it's your duty to watch and listen to all of the proceedings, including the addresses, the evidence, and my instructions. You must listen to and observe these proceedings without prejudice, or bias, or sympathy.
At the end of each day you're free to go until the next day. You do not have to stay together. But when all of the evidence has been presented and Crown counsel and Mr. Fox have addressed you, and I've told you about the legal principles that apply in my final instructions to you, then you go to the jury room together to decide the case, and at that point you are sequestered, which means you must stay together until you've reached our verdict. Meals and overnight accommodation will be arranged for you if necessary.
I will do my best to give you advanced notice as this trial goes along of when that stage -- when we will likely reach that stage so that you will not -- it will not come as a surprise to you without notice.
One more thing before we break. I'm going to ask Crown counsel to read aloud the names of the witnesses who will be called for the Crown. I know this was done at the jury selection, but I understand there may have been some witnesses left off the list.
MR. MYHRE: Yes. Thank you, My Lady. So, the witnesses that I expect you will hear from at this trial are Desiree Capuano, Corporal Brent Wilcott, Constable Jason Potts, Constable Jean-Philippe Dupont, Manvir Mangat, and U.S. Agent Frank Spizuoco.
THE COURT: Thank you, Mr. Myhre. Thank you, members of the jury, for your attention to my opening remarks. We'll take the morning break now and we'll resume -- maybe a little longer of a break than usual because there is a matter that I need to discuss with -- with counsel and Mr. Fox. Thank you.
(JURY OUT)
THE COURT: Mr. Myhre, do you wish to raise the evidentiary issues now just in --
MR. MYHRE: We could do it now or after the break, whatever Your Ladyship prefers.
THE COURT: Well, when do you need a determination on them?
MR. MYHRE: Before the opening address.
THE COURT: Then I think now is better if it can be done briefly.
MR. MYHRE: It's fairly straightforward. I'm just thinking of streamlining things a little bit. I understand from the last pretrial conference that Mr. Fox doesn't have any issue with the accuracy of the website content that we've put in the book of documents.
And, so, I wonder if we could simply, if it's admitted that that's accurate, if that could be marked as an exhibit?
THE COURT: Accurate in what sense? I think that's important to specify. Accurate in representing documents taken from the website and representing emails sent and received?
MR. MYHRE: Simply that they are accurate excerpts from the website.
THE COURT: That's ambiguous. Accurate as to their content, accurate as to what they -- what they are? Do you mean authentic?
MR. MYHRE: Simply that -- I'm not sure how to express it, I guess. If you went to the website it would look as it appears in these books.
THE COURT: Accurate representations of what appears -- appeared on the website as of a particular date?
MR. MYHRE: Yes, I suppose as of the dates that are given on the various documents that are here.
THE COURT: Well, is that clear on each document?
MR. MYHRE: Or perhaps we could say accurate as of May 26th, 2016.
THE ACCUSED: I would agree that the content, the specific content that Mr. Myhre is referring to would be accurate, yes. I do have a concern, though, that he's being very selective in the content that he's choosing to put before the jury. So I don't believe that it's -- that it gives an accurate depiction of the website or of the gist of the website.
THE COURT: Can we say accurate representations of some of the material that appeared on the website?
THE ACCUSED: Yes.
THE COURT: But I think we do need an as of date.
THE ACCUSED: What Mr. Myhre proposed, I believe, May 26th, 2016. The website content has not changed since I've been in custody, and that was May 27th, 2016. So, from that date up to today there should be no changes on the website.
THE COURT: I see. Is that an acceptable way of expressing it?
MR. MYHRE: I believe so, My Lady.
THE COURT: Is that going to be presented as an admission, a formal admission?
MR. MYHRE: I'm in Your Ladyship's hands on that. I could put something in writing.
THE COURT: It doesn't have to be in writing. And also, presumably it doesn't apply to the emails?
MR. MYHRE: These emails are excerpts from the website, and so they are -- the admission would cover that the emails as presented in these excerpts are accurate depictions of what appeared on the website as of May 27th, 2016, which would not necessarily include that the content is what actually was exchanged between the parties at whatever date, simply that, well, no more than the admission is, that it accurately depicts what was on the website as of May 27th.
THE COURT: All right. Anything additional, Mr. Lagemaat?
MR. LAGEMAAT: Yes, My Lady, before you make a decision on this I do have a brief submission and I do believe it concerns me. The Criminal Code specifies I'm here to cross-examine the complainant, and I would like direction from the court the role you would like me to take in the direct examination, if any? And if you do want me to take an active role in objecting if there's something I determine not admissible in direct evidence, then I would have a submission on the admission of the book as a whole, whether I see certain things that may be more prejudicial in the book.
And if you do not wish me to take any role in the direct examination, then Mr. Fox, I'm not sure if he has submissions on that, or if he wants the book admitted as a whole. I mean, the wording of the Criminal Code, s. 486, says "appoint counsel to conduct the cross-examination." I expect there will be some issues in direct examination where, if I was counsel, I would oppose. If I was counsel for the accused, I mean.
THE COURT: Is it appropriate for me to ask Mr. Fox for his views on --
MR. LAGEMAAT: Yes, I -- I would expect -- I would expect that, My Lady.
THE COURT: -- on this? Do you understand the issue Mr. Lagemaat is raising?
THE ACCUSED: I do, yes. I would ask -- what I would like is, before making any submissions on this topic, the opportunity to confer briefly with Mr. Lagemaat.
THE COURT: All right. That seems reasonable.
THE ACCUSED: Unfortunately, given my circumstances, being in the jail, we haven't had a lot of time to confer prior to this. I just need a couple of -- a couple of minutes.
THE COURT: All right. Does that seem appropriate, Mr. Myhre?
MR. MYHRE: Yes, My Lady. Thank you.
THE COURT: All right. So we'll come back to that. Was there another issue?
MR. MYHRE: There is another issue. So, an issue, as Your Ladyship knows, that arises with the screen is the issue of identity. I don't understand there to be any dispute. Maybe we could canvass this with Mr. Fox at some point after Ms. Capuano has actually testified that the person who's sitting here is the person that she'll be referring to as Richard Riess or Patrick Fox. So, the Crown would seek that admission, that Mr. Fox is the person being referred to as Richard Riess or Patrick Fox by Desiree Capuano.
THE COURT: All right. Is that something that might usefully be discussed, Mr. Lagemaat, Mr. Fox, while we're stood down?
MR. LAGEMAAT: I'd like to be a little bit careful, My Lady, as I don't see it as my role to give advice on a proper trial issue such as identity.
THE COURT: Well, presumably it relates to the direct examination of Ms. Capuano.
MR. LAGEMAAT: Okay. I will have that discussion, My Lady.
THE COURT: All right. Mr. Fox, were you about to say something else?
THE ACCUSED: No, no, I agree with that. That's fine.
THE COURT: All right. Anything else before we stand down? No?
MR. LAGEMAAT: No, thank you.
THE COURT: All right. Thank you.
MR. LAGEMAAT: Yes, perhaps we should take a little bit longer than the standard 15 minutes? I understand I can meet with Mr. Fox right behind the door there, but --
THE COURT: I'm wondering whether we should -- we're taking a little longer. That takes us to noon. Then there are going to be submissions, and I'll need to make a decision on a couple of these things. I'm wondering whether we should send the jury for an early lunch.
MR. LAGEMAAT: There's more issue I need to -- I need to bring up, My Lady, is that when I took this appointment, I have a matter on Wednesday morning that I could not get anyone in my firm, or a student, to speak to. I have to be there. So I'm going to ask My Lady to stand this down for Wednesday morning. I do not expect to be as long in cross-examination as Mr. Fox had estimated. I'm hoping that's not going to be a problem.
THE COURT: You're hoping that Wednesday morning is not going to be a problem?
MR. LAGEMAAT: Yes. I have -- I could potentially be here by 11:00. I don't expect to lose the whole morning, but I -- I can -- it's a matter in Surrey, it won't be long, in Provincial Court, and I could tell the court that I need to be called first because I'm in the middle of this trial. But it's a matter I cannot get anyone else to appear in.
THE COURT: Is it a matter that could be adjourned?
MR. LAGEMAAT: It -- it's -- it's a matter that's taken a long time to get into court, and there's been two missed appearances already. It's a civil matter to do with service and I fear adjourning it would create problems down the road. But if My Lady wants me to look into it I can see.
THE COURT: Is there some way that we can find a way to fill that time with something that doesn't involve Mr. Lagemaat?
MR. MYHRE: I could look into the possibility, My Lady, certainly.
THE COURT: If that could be done by agreement, and if it wouldn't disturb the jury's ability to follow the flow of the evidence by interrupting it with something else. It may be that it's not going to be a fruitful idea, but I just raise it.
All right, we will -- ah, where were we? I was wondering whether I should ask the jury to come back, say, at 1:30 and we'll start in the afternoon, or is there a reasonable prospect of us getting to the Crown opening this morning?
MR. LAGEMAAT: I don't need a break, My Lady. So I think 15 minutes would be enough for me to go behind the door and meet with Mr. Fox.
THE COURT: All right. We'll take the normal break.
(PROCEEDINGS ADJOURNED FOR MORNING RECESS)
(PROCEEDINGS RECONVENED)

(JURY OUT)
THE COURT: Where are we on these issues?
MR. LAGEMAAT: I think we're left with -- there's a few things that can't be decided until I know my role in the direct examination.
THE COURT: Have you discussed your concerns with Mr. Myhre?
MR. LAGEMAAT: Yes, I have. We've discussed it previous to today, too. It's my position, My Lady, that the wording of the Criminal Code is that I am here purely to cross-examine the complainant. And if I'm to take part in the direct examination there will be other issues arising that I'm not -- don't want to have to deal with. I would prefer to just remain as -- to cross-examine. That's my position on that issue, My Lady.
And -- and I've discussed with Mr. Fox, he's prepared to be active in the direct examination if -- if required.
THE COURT: All right. Mr. Myhre, do you have a submission? Mr. Lagemaat, you're really -- I'm trying to situate this. You're really seeking direction as to how you wish --
MR. LAGEMAAT: Exactly, My Lady.
THE COURT: -- how the court wishes you to proceed?
MR. LAGEMAAT: Exactly.
THE COURT: And there's no particular issue you're raising now, but you were saying that you expect that if you were appearing as defence counsel, or in a role akin to that, you would have some issues that you'd raise during the direct examination?
MR. LAGEMAAT: That's -- that's correct, My Lady. And -- and a difficulty might be where issues I might have as defence counsel might have to do with other matters than the cross-examination of the complainant. They might come up in my mind to do with other issues that don't concern me in the cross-examination. So, it might be, at times, difficult to draw that line.
THE COURT: All right. Thank you. Mr. Myhre?
MR. MYHRE: My Lady, it seems to me that we could proceed on the basis that if Mr. Fox sees fit to object he could make an objection on the understanding that then we would have to stand down and deal with it. And if that becomes a problem, because you could see how there would be the potential for somebody to really disrupt the trial with spurious objections, then we could revisit this issue.
But, as we've seen Mr. Fox's behaviour in court, he's been very polite and has not been disruptive of the court proceedings.
THE COURT: I think the issue is a bit more fundamental, which is for Mr. Lagemaat, how is he to participate? Is he to participate as though he were defence counsel, or in a more limited role, simply conducting the cross-examination, which obviously requires him to pay attention to the direct examination and to understand the case, but not to play -- do you have a submission on that?
MR. MYHRE: It seems to me ambiguous, My Lady. I don't know -- I don't know the answer to that one. I mean, we have -- the only case that we have that I have seen that relates to defence counsel's role, or, sorry, appointed counsel's role is that case that we saw in the 486.3 application from Justice Cote where he talks for a few paragraphs, and essentially likens the appointed counsel's role to defence counsel's role. But I don't think Justice Cote in that judgment actually addressed whether there was any scope for how that affected the direct examination of the complainant.
THE COURT: All right. Thank you. Mr. Lagemaat, you indicated that you view your role as more limited, and as defence counsel, and in the absence of any different submissions that's how I view it, too. It's the language of the Criminal Code.
The place in which it appears in the Criminal Code, or the provision that empowers a court to appoint counsel to conduct a cross-examination, indicates that it's a measure intended to -- as a form of protection for certain witnesses. The appointment is not as defence counsel, it's not as amicus curiae. While it may be helpful to Mr. Fox to have you as a source of information from time to time if you're willing to assist him, I don't see that form of assistance as intrinsic to your role as appoint -- as counsel appointed to cross- examine. Is that sufficiently --
MR. MYHRE: Yes, I understand, My Lady, and I can say some of the issues I would have raised in the evidence Mr. Fox does not take issue with, so --
THE COURT: Now, what about the other issue of -- of the identity?
MR. MYHRE: I understand that Mr. Fox doesn't admit that he is the person Ms. Capuano refers to as Richard Riess or Patrick Fox, and so the Crown will be considering how to deal with that.
THE COURT: All right.
MR. MYHRE: Your Ladyship, I think it might be worth addressing one of the issues that my friend sees so that it's all out on the record.
In these excerpts Mr. Fox details how certain events unfolded where Ms. Capuano took custody of their son, {G*****}, while he was incarcerated, and I think my friend had some concerns about that fact being before the jury. It seems to me that that is part of the narrative here and the jury can get an instruction about the lack of significance of that fact.
And I also expect Mr. Fox, as -- as I believe we've canvassed at a previous pretrial conference, does have a criminal record related to that, and the Crown will be putting it to him if he testifies, and he has always indicated his intention to testify.
And, so, for those reasons the Crown doesn't have any concerns about the prejudicial nature of that fact. So I think we should canvass with Mr. Fox if he has a view on that.
THE COURT: Could you say it again, the evidence about?
MR. MYHRE: The fact that he was incarcerated in -- between 2009 and 2011.
THE COURT: And the reason for the -- that incarceration?
MR. MYHRE: My understanding is that there was an eventual conviction for perjury. That fact, I don't think, comes into the evidence, and I don't think it's in the website, and it wouldn't be before the jury unless Mr. Fox testified.
THE COURT: So, I need more of an understanding about why that's part of the narrative, a necessary part of the narrative?
MR. MYHRE: First of all, it's part of the website excerpts. Mr. Fox, as you know, has a background section, roughly 20 pages long, where he details the whole history from his perspective of this custody battle over {G*****} and his interactions with Ms. Capuano.
Where that becomes relevant is that when Ms. Capuano eventually took custody of {G*****} it was in part due to the fact that Mr. Fox was in custody, and so she was able to do that. Essentially, she went to the home of a family friend who she learned was looking after {G*****} and took custody of him. And, so, if that fact wasn't before the jury they might wonder, well, where was Mr. Fox? In addition, it's already in the website.
THE COURT: All right. Mr. Fox, what's your view on whether that should be before the jury or not?
THE ACCUSED: Generally, I would be of the opinion that the period of time that I was in custody in the U.S., which was actually 2007 to 2011, would be prejudicial. But I do -- realistically, I have a bit of a -- not a concern, but realistically, I believe that most of the jurors are probably going to be somewhat aware of that because it is going to be out there, even though I realize they were admonished not to do that research.
And I would have a bit of a concern that --
THE COURT: I think -- stop, Mr. Fox.
THE ACCUSED: Sorry.
THE COURT: Please make your submissions on the basis that the jurors will follow the instructions --
THE ACCUSED: Okay.
THE COURT: -- they're given. So, make it on the basis -- what we're trying to do here, and remembering that the jurors have been told they're to judge this case on the evidence presented in the courtroom. And what we're trying to do now is discuss what evidence should appropriately be presented in the courtroom.
THE ACCUSED: Well, given that, I think that putting the fact that I was in custody in the U.S. I think would be prejudicial. And as Mr. Myhre had mentioned, Ms. Capuano did take custody of our son three weeks prior to me being released from Homeland Security custody, not on criminal matters, but I was purely in [indiscernible] custody. Part of the reason she did so, and this will come up in her testimony, was because she knew that I was going to be released, and Family Court at that time, three months later, ordered her to return {G*****} to my custody.
I mean, I think she's -- I think if the jury is going to be aware of that time that I was in custody, it's going to bring up a lot of other questions which then might cause us to get off- track.
So, I would be of the opinion that that information probably should not be important at this time.
THE COURT: Do you have a suggestion, Mr. Myhre?
MR. MYHRE: Yes, I'll just rip the first few pages out of the background in this book of excerpts. I have no problem with that. And then I'll be -- I'll be fairly leading when I'm questioning Ms. Capuano about that and I'll just let her know this is not something we're going to bring up with the jury. I have no issue with the jury not being presented with that if Mr. Fox is opposed.
THE COURT: All right.
THE ACCUSED: I would like to recommend or suggest possibly maybe redacting this specific information rather than removing the first few pages because there is other information in those first few pages which I believe is relevant. For example, the circumstances under which Ms. Capuano and I separated and I had custody, et cetera, because there is that dispute, her story versus my story.
THE COURT: Is that doable over the lunch hour? No?
MR. MYHRE: So, My Lady, and my response to that is that Mr. Fox, if he chooses to testify, will have that opportunity.
THE COURT: All right. So, over the lunch hour you're going to revise the books that will be given to the jury, Mr. Myhre. The parties will be -- is there something you need to discuss? If there is --
THE ACCUSED: No, I don't think --
THE COURT: No. I don't want to force you ahead if there's something that needs to be discussed about this.
MR. MYHRE: Pardon me, My Lady. I just suggested to Mr. Fox that I'd just rip out a single page that I think deals with that period of time. So then the jury sees some of the background, maybe a missing page.
THE COURT: Very well.
THE ACCUSED: I don't oppose that.
THE COURT: I'm sorry, I didn't hear?
THE ACCUSED: I don't oppose that. Sorry, My Lady.
THE COURT: All right. Can you tell me which page that is, or perhaps when you come back and if you're confident that's what you're doing.
Now, what about references to the children by name in this trial, is that an issue?
THE ACCUSED: I have on objection to that.
MR. MYHRE: I should canvass that with Ms. Capuano.
THE COURT: All right.
MR. MYHRE: It seems to me that that information is already widely disseminated both through this website and the news reporting, but I should double check that.
THE COURT: Very well. Mr. Myhre, Mr. Fox is trying to get your attention on that point, I think.
MR. MYHRE: Mr. Fox just asked me to canvass it with {G*****}, as well. So I'll try to do that.
THE COURT: Is there anything else we need to deal with before I ask the jury to come in, and Mr. Myhre, you'll make your opening address, I take it. Anything else?
THE ACCUSED: No.
THE COURT: Mr. Lagemaat?
MR. LAGEMAAT: No.
THE COURT: Everything fine from your --
MR. MYHRE: Nothing else, My Lady.
THE COURT: All right.
MR. MYHRE: My Lady, I will be -- as you can see, I've set up the podium right there. I'm slightly concerned that it may block that juror's view. But if that is the case, then we could maybe rectify that over the lunch hour. I sat in that chair and it seemed to me if I leaned slightly to the right I could see the witness box, but I won't know for sure until that person actually sits there and I'm standing in front of him.
THE COURT: I would think you'd need to move it more to -- toward the bench. Is that what you meant by the right?
MR. MYHRE: Well, yeah, but the problem is there is a step there.
THE COURT: Ah. Well, you'll need to do a test run over the lunch hour. All right. Ready?
MR. MYHRE: Yes.
THE COURT: Please.
(JURY IN)
THE SHERIFF: The jury, My Lady.
THE COURT: Thank you, members of the jury. Mr. Myhre is now going to make the Crown's opening address to you.
OPENING REMARKS TO JURY BY CROWN:
MR. MYHRE: Ladies and gentlemen, as you know, I am presenting the case to you against Patrick Fox, and in the next five minutes here I'm going to give you a fairly brief overview of the witnesses I expect you're going to hear from, and the purpose is to give you context, so that when you actually hear them you'll have some idea of how it fits in. What I say to you in the next few minutes is not the evidence. The evidence is what you hear from those witnesses.
The first witness, and the central witness in this matter, of course, is Desiree Capuano. She's a 36-year-old mother of two. She works in the IT field. She lives in Arizona.
You're going to hear that in the year 2000, when she was 19, she met Mr. Fox, who was then 26 years old. They soon became pregnant, they got married, and in September of 2000 they had a child whose name is {G*****}.
And you're going to hear over the course of this trial, I expect, two different versions of the events that took place between then and 2011, and you're going to hear that in 2011 to 2014 there was a bitter custody dispute. Ms. Capuano will tell you her version of events, and you'll also be presented with excerpts from a website that contain Mr. Fox's version of events.
At the end of the custody battle Ms. Capuano had custody of {G*****}, and Mr. Fox stated that it was his goal to do everything in his power to make her life as miserable as possible, hopefully so miserable she would commit suicide. He did this in two ways; through the tone and content of his email communications with her, and through a website that he created, www.desireecapuano.com. And you're going to be spending most of her testimony the rest of today and into tomorrow going through some of the emails and some of the website. As we go through them Ms. Capuano is going to tell you how these emails and the website affected her, and what she tried to do to get them to stop.
The remaining witnesses in the Crown case are fairly brief. You'll hear from RCMP Constable Jean-Philippe Dupont about a warning that Mr. Fox was given in the summer of 2015.
In relevance to the s. 93 charge you'll hear from Manvir Mangat, the owner of a business called "The Packaging Depot" about boxes Mr. Fox shipped between March and May of 2016 to an address in California.
You'll hear from U.S. ATF Agent Frank Spizuoco, that he attended that residence and found four handguns registered to Mr. Fox, concealed inside a desktop computer. And you will also listen to an audio-recording of Mr. Fox's interrogation by the RCMP on June 16th, 2016 in which he admitted shipping his firearms to the United States, admitted to being the author of the website, and admitted that his intention was to ruin Ms. Capuano's life.
A brief word of caution, you're going to hear a lot about the interactions between these two people. What you hear about your history is meant to give you context for what followed, and there's a potential to be sidetracked about who really did what to who in 2001, 2005, 2012.
At the end of the day the issues that you'll have to decide, of course, are whether it's proven beyond a reasonable doubt that Mr. Fox -- that his actions between January the 11th, 2015 and May the 27th, 2016, that is the website that he created, the emails that he sent, caused her to have, that is Ms. Capuano, legitimate fear for her safety, and fear for safety encompasses a person's bodily and mental wellbeing.
You'll have to decide whether in May of 2016 he possessed his firearms in a place that he wasn't authorized to. So, as we go through email after email, and through the website in some detail, don't lose sight of those fine questions. So, without further delay, then, the Crown's first witness is Desiree Capuano. My Lady, I wonder if I could just have a brief word with her outside?
THE CLERK: If you could stand, please?
DESIREE CAPUANO
a witness called for the
Crown, affirmed.
A Yes, ma'am.
THE CLERK: Please state your full name and spell your last name for the record.
A Desiree Capuano, C-a-p-u-a-n-o.
THE CLERK: Thank you. You may be seated.
THE COURT: Now, before you start, Mr. Myhre, I would just like to say a couple of things to the jury about some of the procedures we're following.
You're going to have to move out of my way, please. Thank you.
Members of the jury, you may have noticed that Ms. Capuano, who is the next witness, is testifying behind a screen that has been placed next to her, but in a fashion that allows you to see her, and also has with her a support person.
MR. MYHRE: Ms. Michelle Vickers.
THE COURT: All right. Thank you. Who is someone Ms. Capuano knows and who will play absolutely no part in Ms. Capuano's testimony.
These procedures, using the screen and having a support person with Ms. Capuano are used simply to give her, as a witness, a comfortable situation in which to testify. The fact that we're using these procedures has nothing to do with the guilt or innocence of Mr. Fox. These procedures are not evidence of anything. The fact that the procedures are used must not affect your assessment of the evidence in any way. Thank you.
Ms. Capuano's just shifted over a little bit in the witness box. All right.
Now, with Mr. Myhre standing where he's now standing, does that obscure anybody's view?
MR. MYHRE: You can see around me? Okay.
THE COURT: Thank you.
EXAMINATION IN CHIEF BY MR. MYHRE:
Q Ms. Capuano, you are 36 years old?
A Yes.
Q You were born in Florida, you grew up in Alaska and then Washington?
A Yes.
Q And you currently live in Arizona?
A Yes.
Q Generally speaking, you work in the IT field?
A Yes.
Q You live, right now, with your partner, James Pendleton?
A Yes.
Q You've been dating -- or you started dating him in July of 2014?
A Yes.
Q And you moved in together in the summer of 2015?
A Yes.
Q You have two sons, {S*****} and {G*****}?
A Yes.
Q {G*****}'s 16?
A Yes.
Q {S*****} is 13?
A Yes.
Q And I understand that in January of 2000, you met a person named Richard Riess at a bar in Phoenix?
A Yes.
Q You were 19?
A Yes.
Q And how old was Richard?
A Twenty-five. 24, 25.
Q At some point, Richard Riess stopped using the name Richard Riess?
A Yes.
Q Roughly, when was that?
A The summer of 2014.
Q And what name did he start using?
A Patrick Fox.
Q In March of 2000, you became pregnant with Richard's child?
A Yes.
Q The two of you got married in Las Vegas in August of 2000?
A Yes.
Q And {G*****} was born somewhat prematurely in September of 2000?
A Very prematurely.
Q You separated from Mr. Fox, or Mr. Riess, in 2001?
A Yes.
Q Or the two of you separated. There was a custody battle over {G*****} at that point in time?
A Yes.
Q There were court hearings involved?
A Yes.
Q And at the end of it, I understand there was a joint custody order where {G*****} was to go back and forth between your home in Florida, and Richard's home in California?
A Yes.
Q What was your belief about your marital status with Richard at the end of the court proceedings?
A I was under the impression that the divorce proceedings were included with the custody so that had been taken care of. I was young and naive, but --
Q You were 21 when the custody --
A Yes.
Q -- was resolved? I understand that very shortly, within about a month, or so, you did not have the funds to fly {G*****} back from California?
A Correct.
Q And that Richard ended up with custody by default?
A Yes.
Q And not long after that, Richard stopped communicating with you?
A Yes.
Q And you were unable to reach {G*****}?
A Yes.
Q In 2002, you married a man named Michael Capuano?
A Yes.
Q You had your son {S*****} with him in 2003?
A Yes.
QI understand the next time you had contact with {G*****} was in 2005?
A Yes.
Q And that Richard had brought {G*****} to see your mother?
A Yes.
Q They had a series of visits, your mother and {G*****} did?
A Yes.
Q But they didn't leave any contact information?
A No.
Q Did you want to have contact with {G*****}?
A Yes.
Q Were you doing anything to try to get in contact with him?
A After 2005, when the phone number didn't work, I did reach out to various sources, legal sources, but never made any progress with finding him.
Q When you say various sources, who are you referring to?
A Lawyers, I spoke with attorneys, I spoke with police in various states, Missing Persons, CPS.
Q That's Child Protection Services?
A Correct, sorry, Child Protection Services, yes. I left my information with Child Protective Services in Arizona and California every six months.
Q So in 2005, did you have any interaction with {G*****}?
AAfter the phone call, no. I spoke with him on the phone once in 2005 while he was at my mother's house.
QI understand that you spoke to him on the phone again in 2007?
A Correct.
Q The circumstances of that were that Richard had contacted your mom?
A Yes.
Q Asking for your contact information so {G*****} could contact you?
A Correct.
Q And then {G*****} did phone you?
A Correct.
Q In 2009, you separated from Michael Capuano?
A Yes.
Q And then I understand that in 2011, Richard sent you a letter, inviting you to re-establish some contact with {G*****} --
A Correct.
Q -- and apologizing for withholding him from you?
A Yes.
Q There were a few letters back and forth and then eventually he gave you {G*****}'s contact information?
A Correct.
Q And it was then that you learned that {G*****} was actually living with a friend of Richard's named Liz, in the Los Angeles area?
A Correct.
Q And then you drove to California and you actually met with {G*****} in June of 2011?
A Yes.
Q That was the first time you'd seen him since 2001?
A Yes.
Q And I understand that initially it was going well, but then very short in -- in July of 2011, Liz told you that she was concerned that you were going to take {G*****}, and she told you that she was going to, essentially, hide him from you?
A Yes.
Q I understand that after that, you got some legal advice?
A Yes.
Q You then drove to California and with the assistance of police, took custody of {G*****}?
A Yes.
Q Then in October 2011, Richard filed for custody of {G*****} in California?
A Yes.
Q In November, without having heard from you, I understand that the judge in California ordered that {G*****} should be immediately returned to California?
A Yes. 2019-01-29 Affidavit of Patrick Fox, paragraph 8
Capuano falsely testified the California family court ordered her to return {G*****} to Patrick, in November 2011, without having heard from her.
Capuano was, in fact, present at that hearing, by telephone, and addressed the court at length. The court rendered its ruling, ordering Capuano to return {G*****} to Patrick's care, AFTER hearing from both of them.
The minute entries from the hearing, which were on the website, prove Capuano's testimony was false. Also, later on cross examination, Capuano admitted to participating in that hearing. (TR 2017-06-15 p40/23 - p41/32)
Since the minute entries from the family court were on the website then both Mr. Lagemaat and Mr. Myhre knew of them. Therefore, they must have known at the time of Capuano's testimony that she was committing perjury. However, both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.
Q There was a court hearing where you were heard then?
A Yes.
Q In November 2011, and at the end of that, the order was for joint custody with Richard having primary physical custody and a visitation plan where {G*****} would visit you on school breaks?
A Correct.
Q And how did you feel about that arrangement?
A I was okay with that arrangement. That was what {G*****} said he wanted so -- 2019-01-29 Affidavit of Patrick Fox, paragraph 9
Capuano falsely testified she had been “okay with the custody arrangement” imposed in the November 2011 (though actually the hearing in question occurred in December 2011) hearing, because it was what {G*****} wanted.
However, in September 2011, while Capuano was holding {G*****} in Arizona under a temporary emergency custody order she obtained on false pretenses, {G*****} told Capuano, while on a conference call between Patrick, {G*****} and Capuano, that he wanted to live with Patrick and visit her on his school breaks. Capuano's immediate response, in Patrick's and {G*****}'s presence, was to accede; but immediately the following morning Capuano appeared in court in Arizona, requesting an order of protection against Patrick to prohibit him from having any further contact with her and {G*****}.
The Arizona family court documents on the website prove this is so.
Following Capuano's false testimony, Patrick informed Mr. Lagemaat of his conference call with {G*****} and Capuano and how she had reacted. Patrick informed Mr. Lagemaat of the application for the order of protection and that a copy was on the website. Mr. Lagemaat failed to confront Capuano about the conference call or about her attempting to obtain an order of protection in response to {G*****} saying he wanted to live with Patrick.
Q And you flew {G*****} to Arizona for winter break --
A Yes.
Q -- over the winter 2012 into January 2013?
A Yes. Multiple visits throughout 2012, but, yes, also for that one.
Q And so then again in the summer of 2012 --
A Yes.
Q -- he flew to Arizona --
A Yes.
Q -- and stayed with you for a period of time?
A Yes.
Q In October -- on October 2nd, 2012, your then- partner, Kris Lauchner [phonetic] got into some trouble with police?
A Yes.
Q They found a gun that he had stolen and put into your attic?
A Yes.
Q And he was arrested?
A Yes.
Q And I understand you separated from Mr. Lauchner on that day?
A Absolutely.
Q And I understand that soon after that, Child Protective Services came to your home?
A Yes.
Q You later learned from Richard that that was at Richard's instigation?
A Yes.
Q They actually did a drug test on your hair, I think, they took a sample?
A Yes. Yes, they did.
Q And eventually Child Protection Services didn't intervene in your home?
A No.
MR. MYHRE: My Lady, I think this is probably an opportune time for a break.
THE COURT: Members of the jury, we'll take the lunch break at this point, and I'll ask you to come back, please, at two o'clock. Thank you.
(JURY OUT)
THE COURT: Anything we need to deal with?
MR. MYHRE: No, My Lady.
THE COURT: Okay. Thank you. We'll resume at 2:00.
A Thank you.
(WITNESS STOOD DOWN)

(PROCEEDINGS ADJOURNED FOR NOON RECESS)
(PROCEEDINGS RECONVENED)
MR. MYHRE: Pardon me, My Lady. I just wanted to confirm with Mr. Fox before I ripped a bunch of pages out, so we did that and we've just completed it.
THE COURT: All right. Good. Now, I've had a note from one of the jurors saying that they are having trouble hearing Mr. Myhre in your questioning.
MR. MYHRE: Right.
THE COURT: And the ask -- the request is that you speak up, not looking down at your paper, or that you use a microphone. So, there is a microphone there. I don't know whether that's an amplifying one.
THE CLERK: It doesn't amplify, My Lady, it just records.
THE COURT: Are there any amplifying ones around?
MR. MYHRE: My Lady, just a suggestion, but I could move this podium to right here so I don't completely have my back to the jury when I'm speaking.
THE COURT: I don't want you in a position where you're able to see notes that the jurors might be making. That might make them uncomfortable.
MR. MYHRE: Okay. Well, I can try to speak up, certainly.
THE COURT: Can you perhaps turn a little bit at an angle so that you can -- that might help a little bit. Madam Registrar, the note should be the next exhibit for identification, please.
THE CLERK: It's Exhibit D for I.D., My Lady.
THE COURT: Thank you.
MARKED D FOR IDENTIFICATION: Note from juror re being unable to hear
MR. MYHRE: Your Honour, the Crown would like to request a publication ban as it relates to {S*****} and {G*****} Capuano.
THE COURT: Can you give me the section number?
MR. MYHRE: 486.5, My Lady.
THE COURT: Does that apply only to witnesses?
MR. MYHRE: In respect of a victim or a witness. (2) allows for a justice system participant. Certainly, on a common-sense point of view, at least on the Crown theory, {S*****} and {G*****} are victims, but I don't think they are in the technical not named complainants in the indictment, obviously.
THE COURT: Mr. Fox, do you have any submission to make?
THE ACCUSED: I have no opposition to such a publication ban on the children's names. I personally would never publish their name. Well, I've never published {G*****}'s name. I can't say that about {S*****}. But, no, I support the ban in matters relating to these proceedings, I guess.
THE COURT: Yes. All right. I'm going to make the order, subject to it -- subject to any application by anyone for the ban to be lifted, and that application can be made at any time, any appropriate time on notice.
Although it may not be expressly provided for in the Criminal Code the court has an inherent jurisdiction, particularly in relation to the interests of children, and these young people will -- would be considered children.
Given the nature of some of the evidence that may relate to them, in my view, it would be my view based on what has been brought to my attention thus far, it will -- would not be in their interests for their names to be published.
So, there will be a ban on the publication of any information identifying the -- well, it can't be put in those terms, the same terms Mr. Myhre's s. 486.5 operates, otherwise it wouldn't be possible to publish the -- Mr. Fox's name or Ms. Capuano's name. They're the only two children they have. Or the only two children of Ms. Capuano.
So, how do you propose that it be framed?
MR. MYHRE: I would be content if it just was that their names not be published.
THE COURT: All right. The names of Ms. Capuano's to children, one of those also being Mr. Fox's child, are not to be published in connection with any publication relating to these proceedings.
Any submissions about that form of order, Mr. Myhre?
MR. MYHRE: No.
THE COURT: Mr. Fox?
THE ACCUSED: No, My Lady.
THE COURT: All right. Are we ready for the jury?
MR. MYHRE: I just want to mention this book. So, this is going to be gone through with -- with Ms. Capuano in the next portion of her evidence. Can Your Ladyship -- or do we need to tell the jury that it's admitted that this is an accurate copy of the website as it existed on May 27th, 2016?
THE COURT: That is admitted?
MR. MYHRE: I thought that was the end of the discussions we had this morning?
THE COURT: There's been nothing further since this morning, is -- is that correct?
MR. MYHRE: There's been nothing further since this morning.
THE COURT: All right. Then I'll say something about that to the jury at the time you hand the books out.
MR. MYHRE: Now, My Lady, I don't have an extra copy for you because you have that copy, but I should alert you to the pages to take out.
THE COURT: Please.
MR. MYHRE: It just occurred to me, I had intended for the exhibit copy to be the copy Ms. Capuano has, so I'll have to do the same thing with her.
THE COURT: All right.
MR. MYHRE: It also occurred to me that Ms. Capuano has probably done some highlighting in her book. I don't see that as being an issue, but I want to let Your Ladyship know that.
THE COURT: In the orig -- what you're proposing be the original exhibit?
MR. MYHRE: Be the exhibit.
THE COURT: Well, that would be the copy that the jury will end up with in the jury room. Is that your intention?
MR. MYHRE: Yes. Realistically, it's hard to imagine them looking at a copy other than their own copy, which they will likely potentially have made notes in.
THE COURT: Is there any possibility that she may have annotated anything in addition to highlighting?
MR. MYHRE: That's possible.
THE COURT: Well, that's not acceptable for that to go to the jury.
MR. MYHRE: Okay. I'll have to check that.
THE COURT: Have you got an extra copy?
MR. MYHRE: I'm afraid I don't.
THE COURT: Well, I think we're going to have to ask two jurors to share. Ask -- you use a clean copy as the one that Ms. Capuano will be asked to look at and will become an exhibit. But we can't be giving an annotated copy to the jury.
MR. MYHRE: I'll have to canvass that, find out if that's happened.
THE COURT: And you'll have to have an extra copy made overnight and we'll just tell the jury you haven't got enough.
So, what are the pages that --
MR. MYHRE: At tab 6, the fourth page that begins with, "Desiree returns to Phoenix" at the top.
THE COURT: Yes.
MR. MYHRE: That's been ripped out.
THE COURT: All right.
MR. MYHRE: And then the last two full pages at tab 9 have been taken out. So, both double-sided pages have been removed.
THE COURT: All right. And that's it?
MR. MYHRE: Yes. There's a request from Ms. Capuano that if -- if it's possible that Mr. Fox not be in the room when she's brought in. So, I wonder if -- ordinarily, if we were going straight into her evidence I would just have her sitting in, but, of course, we had to canvass these issues. Would it be possible to have Mr. Fox returned to the cell briefly while we bring her in, have Mr. Fox come back? It's a few extra minutes, but I'm going to have to go canvass the issue of the book with her right now, as well.
THE COURT: All right. We'll stand down very briefly.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)

(JURY IN)
THE COURT: Thank you. Members of the jury, I understand there has been some difficulty hearing, in particular Mr. Myhre's questions, and we turned the lectern a little bit, hoping that his voice will project out, and Mr. Myhre has agreed to speak more loudly than he did before.
MR. MYHRE: If there's any difficulty, please alert the judge and I'll address it, but thank you.
DESIREE CAPUANO, recalled.
EXAMINATION IN CHIEF BY MR. MYHRE, CONTINUING:
Q Ms. Capuano, when we left off before the lunch break, we had sort of come through a very brief summary of the history involving {G*****} and yourself and Richard Riess up to 2012?
A Yes.
Q I'm going to skip ahead from 2012 for a moment, and then we're going to end up going back to 2013, but in March of 2014, you became aware of the existence of a website, www.desireecapuano.com?
A Yes.
Q You've been to that website?
A I have. I have seen it.
Q You haven't gone through every last bit of it?
A No.
Q You're generally aware of some of what's on it?
A Yes.
Q In preparation for this trial, I showed you a book that I see you have on your lap?
A Yes.
Q It's titled, "Excerpts from www.desireecapuano.com"?
A Yes.
Q You reviewed the book?
A I have.
Q And based on what you've seen of the website, as well as what you know of your own email correspondence with Richard, are what is -- is what's shown in this book accurate? Does it accurately depict the website and your emails?
A There have been some modifications to the emails, but for the content, it -- it seems fairly accurate.
Q So we'll get to that in a second.
MR. MYHRE: My Lady, at this stage, I'd like to tender this book as an exhibit. I have a fresh copy that I'll give to Ms. Capuano.
THE COURT: All right. Can copies go to members of the jury at this point?
MR. MYHRE: Yes.
THE COURT: Members of the jury, Mr. Sheriff is going to distribute copies to you. We're short one copy and so I'm going to ask that two of you share for now, and there will be another copy made available, probably by tomorrow. And then I'm going to say something to you about this book of documents.
THE COURT: And this is an admission. You remember I spoke to you about things that are agreed as between the Crown and the defence and you can treat them as fact. It is agreed that the material in this book is an accurate representation of some of the material that appeared on the website that you've heard about as of May 26th, 2016. So I'll say that again. It's agreed that the material in the book you have just been given is an accurate representation of some of the material that appeared on the website as of May 26th, 2016.
MR. MYHRE: Thank you, My Lady, and can we mark this as an exhibit before I forget?
THE COURT: All right. So that's going to be Exhibit 1, I take it?
THE CLERK: Exhibit 1 on the trial proper, My Lady.
EXHIBIT 1: Brief titled "Excerpts from www.desireecapuano.com"
THE COURT: Members of the jury, the copies you've been given are for your reference. The version that Ms. Capuano has just been given will be the official exhibit and it will go with you at the end of the trial into the jury room, but you've got those copies to follow along with now during the trial.
MR. MYHRE:
Q Ms. Capuano, could I take you to Tab 8, please?
A Yes.
Q This is a list of emails, mostly purporting to be between yourself and Patrick. In terms of the number and the dates of these emails, we can see they start at the top. The most recent would be May 20th, 2016, and then on the last page, the last one listed is October the 10th, 2011?
A Yes.
Q As far as you've been able to tell, is that an -- accurate in terms of the number of emails that went back and forth between you and Richard?
A Yes. Yeah.
Q Do you think there are any emails, or email chains missing from this list?
A There -- there might be. I -- I haven't looked, compared.
Q And then as far as the dates that are on these emails and the dates of the other emails in this book that you've reviewed, do the dates appear to be accurate, as far as you can tell?
A Yes.
Q Okay. Now, I'd like you to go to the very end, the last page of Tab 8, and I'm going to suggest that if you flip forward from -- forward in time from that point of view or that point, there are, roughly, 13 pages on a list of emails before you get to October 2012 --
A Yes.
Q -- about 13 pages. And there are about 35 emails a page --
A Yes.
Q -- and so that's, roughly, 450 emails between October 2011 and October 2012?
A Yes.
Q Does that sound, roughly, accurate in terms of the number of communications that were going back and forth between yourself and Richard at that time?
A Yes.
Q In a couple of sentences, could you characterize the tone of these email communications between yourself and Richard during that timespan?
A Between 2011 and 2012?
Q Yes.
A Many of the emails from Richard were demanding, ordering, threatening to take me back to court, telling me that -- in -- insulting. They were mean and -- and -- and hostile, and aggressive in nature. 2019-01-29 Affidavit of Patrick Fox, paragraph 10
Capuano falsely testified many of the emails from Patrick in 2011 and 2012 were “demanding, ordering, threatening, insulting, mean, hostile and aggressive”.
The very emails to which Capuano was referring, which were on the website, prove this is false. In fact, Capuano was the one consistently initiating hostilities, threats, insults, et cetera. Most of Patrick's emails prior to 2014 were civil, helpful, and he frequently went out of his way to be accommodating.
I believe the Crown soliciting this negative and false characterization of the emails from 2011 and 2012 gave them direct relevance for Mr. Lagemaat to cross examine Capuano on them. I further believe that by not confronting Capuano with the proof her statement was false Mr. Lagemaat left the jury with the impression it was true.
Since both Mr. Lagemaat and Mr. Myhre had reviewed every email thread on the website then they both new at the time of her testimony that Capuano's statement was perjurious. However, both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.
Q Okay. We're going to go back to some of the high- level events that took place for a minute. I understand that in October of 2012, Richard told you that he had a job offer from a company in Vancouver and he wanted your permission to take {G*****} to Vancouver with him?
A Yes.
Q You didn't want that?
A Correct.
Q Why?
A I was scared that if he took my son to Canada, I would not see him again.
Q And in October 2012, Richard filed a motion with the court in California seeking permission to take {G*****} to Canada and suspend all visitation with you?
A Yes.
Q At that time, your understanding of Richard's legal status in the country was that he wasn't legally allowed to be there?
A Correct.
Q And I understand that in November, you called an FBI tip line and told them that you believed Richard was in the country illegally?
A Yes.
Q And why did you call the tip line and tell them that?
A With the intent that he would be deported.
Q And you told them that if they didn't do anything about it, you would contact the media?
A Yes. Lagemaat should have crossed Capuano on this, because it seems to show a pattern of behavior. When she didn't get what she wanted with respect to Patrick she went to the media; when Patrick was first deported in 2013, she threatened to go to the media if he continued to try to get custody of {G*****} back.
Q In early January of 2013, {G*****} was staying with you for his winter break?
A Yes.
Q And you got a call from Liz, who told you that Richard had been arrested and detained by the immigration authorities?
A Yes.
Q And it was your belief at that time that Richard had been deported?
A Yes.
Q Richard then filed a motion with the court in California that was to be heard on March the 20th, or was that already a scheduled hearing?
A That was already a scheduled hearing.
Q So there was a hearing scheduled for March 20th, 2013 to discuss the issue of custody?
A Yes.
Q And did that -- was that to be a mediation?
A Yes.
Q And did it go ahead?
A No, it was taken off the calendar.
Q Why?
A He was removed from the country.
Q And I understand that on March the 20th, you got a call from the mediator at the court --
A Yes.
Q -- who told you that Richard was actually present at the court for the mediation?
A Yes.
Q And you then called the FBI?
A Yes.
Q And you later learned that Richard was deported again on that date?
A Yes.
Q And so then I understand that from that point on, {G*****} lived with you?
A Yes. Capuano admitting it was because of Patrick being deported that she gained custody of {G*****}. Lagemaat should have crossed her on this further, so that it was clear in the jury's mind.
Q Okay. We're going to go back to the book now and go through some of the chronology of what happened from there while also looking at some of the email correspondence between yourself and Richard. Could we go to Tab 9, please? And Ms. Capuano, could you go to the second page, the email that the subject line is, "Last attempt at an amicable resolution"?
A Yes.
Q So I want to ask you a couple general questions about this email and all the emails that are in this book. First of all, were you using the web -- or, sorry, the email address, desiree.capuano@gmail.com?
A Yes.
Q And was Richard using the address, patrick@desireecapuano.com?
A No.
Q What email address was he using?
A Richardriess@gmail.com.
Q And if we just look down to the second line of the content of the email, it says [as read in]:
On Sunday, July 21st, 2013, Patrick wrote, "Desiree" . . .
Et cetera. Did the word "Patrick" appear in this email when you received it in 2013?
A No.
Q What did it say there?
A "Richard."
Q Other than those differences, the emails that you reviewed in here, do they appear to be accurate copies of the actual correspondence between yourself and Richard?
A Most of them had my son also included when he sent them to me. 2019-01-29 Affidavit of Patrick Fox, paragraph 11
Capuano falsely testified Patrick CC'd or included {G*****} on “most” and on “almost every” email he sent her.
  • TR 2017-06-12 p12/8-9
  • TR 2017-06-13 p22/21-22
  • TR 2017-06-14 p63/19-21
  • TR 2017-06-14 p65/32-35
The emails Mr. Myhre printed for Patrick, which Patrick provided to Mr. Lagemaat, included the CC and BCC headers, so they prove these statements were false. In fact, out of the 1095 emails Patrick had sent Capuano between September 2011 and May 2016, he had only CC’d {G*****} on 122 of them, and about half of those were conversations which {G*****} was part of (e.g. visitation scheduling); Capuano had also CC’d {G*****} on 38 of the 5603 emails she had sent Patrick over that time.
Since both Mr. Lagemaat and Mr. Myhre received a copy of the emails printed for Patrick by Mr. Myhre they knew at the time of Capuano's testimony that each time she made this claim she was committing perjury. However, both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.
Q And by included, what do you mean?
A CC'd on the emails.
Q And are you referring to {G*****}?
A Yes.
Q And then just as far as the dates that are listed, do those appear to be accurate to you?
A Yes, the dates do.
MR. MYHRE: Okay. At this point, I'd like to invite the jury to review the email, "Last attempt at an amicable resolution." And the way that I intend to proceed by reviewing these emails is to have the members of the jury read the email and then I'll be asking Ms. Capuano a few questions about it. And so maybe just look up at me when you're done reading and I'll start with the questions.
THE COURT: Mr. Myhre, this a public trial so everything has to be on the record.
MR. MYHRE: This is -- it is an exhibit, My Lady.
THE COURT: It is. Is it publicly available?
A It's on the website.
MR. MYHRE: I would think the members of the public could apply for access to it.
THE COURT: Well, I'm not sure we can proceed in the way you're suggesting. Can you not direct her attention to specific portions?
MR. MYHRE: It does seem to me that the jury will have to look at this book at some point. It's an exhibit and it will --
THE COURT: I think we need to address this so --
MR. MYHRE: Very good.
THE COURT: Members of the jury, I'm going to ask you to retire to the jury room briefly. Leave all your materials, please, in the courtroom. Nobody will go near them. Thank you.
(JURY OUT)
THE COURT: Now, is this a discussion that should be in Ms. Capuano's presence?
MR. MYHRE: I don't think that will be a problem, My Lady.
THE ACCUSED: I have no objection to that.
THE COURT: All right. Can you give me a bit more detail about the process you're intending to follow, and why, please?
MR. MYHRE: Yes. So, each of these emails, as we've just covered with Ms. Capuano, is a communication between herself and Richard Riess, and she's testified that they, as far as she can tell, appear to be accurate, with the exceptions she's mentioned, and they are tendered because they are relevant to the harassment. I mean, some of these emails are -- many of these emails are the harassment, and a few are also there for context.
And, so, I guess it would be an option -- we have to make sure the jury reads it. It would be an option for them to retire for that purpose, I suppose, because it's evidence. But it would make a lot more sense, I think, for them to look at each one and hear what this meant to Ms. Capuano, if it's relevant to the criminal harassment, how it made her feel, or if it needs some explaining otherwise.
THE COURT: The trial needs to be conducted in public, and to say, "Please look down" and read something that is not on the record, and then ask Ms. Capuano how that made her feel does not give the public the information that made her feel a certain way.
MR. MYHRE: I see.
THE COURT: And it may be true that, yes, exhibits can be applied for and released in certain circumstances. That's -- that's a cumbersome process. It's not clear when an application can be made. But then, numerous copies are circulating, which may not --
MR. MYHRE: My Lady, I think --
THE COURT: -- be the best method of proceeding.
MR. MYHRE: Having heard your concern, maybe it can be addressed this way. I could ask Ms. Capuano to summarize, "What's this email about," in a couple of sentences, and --
THE COURT: Why can't you just read it out?
MR. MYHRE: The simple answer is there are a lot of them and it's very cumbersome. Ms. Capuano could then be asked, "Did this have an impact on you, and what words here were significant," and she can tell the jury that and highlight, "It was this sentence" or "these sentences."
THE COURT: Well, that's a different way of proceeding. It seems to me you've got several options. You can either read aloud the portions that you're going to ask Ms. Capuano to comment on so that it's before the jury and it's before the public, then you ask her to comment. Or you present a particular email and say, "Is it one you'd seen before, and if it is, was there a particular portion that troubled you, and if so, where" -- "what portion was it, and she essentially takes us to the portion," and then it needs to be, at the very minimum, summarized, but probably read into the record.
But we can't be conducting a trial on the basis of a book of material that isn't before the public in any way at all.
MR. MYHRE: I'm content to proceed in that fashion, My Lady.
THE COURT: Mr. Fox, you were on your feet earlier, and I -- I know you have a concern.
THE ACCUSED: Yes, yes, thank you, My Lady. I did have a bit of concern with the approach of Mr. Myhre for some other party reading off just what he considers the pertinent segments because I think that's going to then continue the situation of having fragments out of context.
Now, when Ms. Capuano would've received the email she would've read the entire email. If she were only looking at specific sentences and ignoring the rest of it, that wouldn't have made a lot of sense.
I mean, her fear, if she had any fear, it should have been based on the entire email.
THE COURT: All right. That's probably a matter for either cross-examination, or argument, or both. Given the volume of material there's no way all of it can be read aloud in the trial.
THE ACCUSED: Right.
THE COURT: We'd be here for years. But I have your concern, but in connection with this particular point, I don't see it as necessary that the entire content be read out each time. But there are other ways to address the concern that you've raised.
All right. Could we have --
THE ACCUSED: I think that's clear.
THE COURT: -- the jury back, please?
(JURY IN)
THE COURT: Thank you, members of the jury.
EXAMINATION IN CHIEF BY MR. MYHRE, CONTINUING:
Q So Ms. Capuano, when we left off, we were talking about the email titled, "Last attempt at an amicable resolution," dated June -- or, sorry, July 21st, 2013?
A Yes.
Q Could you summarize what this email is about?
A This email in particular is about Richard's demand that I return {G*****} to him immediately, otherwise he threatens very negative repercussions.
Q Sorry, he threatens?
A Oh, repercussions.
Q And what kind of repercussions? And if there's a particular sentence you think --
A Okay.
Q -- illustrates that, please read it out.
A It -- it would be easier.
Q Okay. Tell us where it is and read it out for us, please.
A It's the third paragraph, starting on the fourth sentence [as read in]:
And let me be perfectly clear, if we go down that road, every aspect of your life will be scrutinized. His investigator will research, document and record everything you are doing and have done for the past 10 years. Every disciplinary action or behavioural report about {S*****} will be brought up. Every single time you, Michael, Kristopher, your mother, your brother or anyone else close to you has ever interacted with any law enforcement officer, not paid a bill on time, will be scrutinized. Every past and present employer and landlord will be interviewed. Every person you've lived with or associated with will be questioned. Every tax return, every credit card bill, every bank account, every medical record including psychological and psychiatric for all relevant people in your life will be found and picked apart. Medical records are confidential but investigators always have a way around that. Every time {S*****} choked a kid at school will be found. Every person you've ever had a relationship with or slept with, or even just had a drink with will be found and questioned. Each person that comes to your home or whose home you go to, every person you've worked with, will be researched and questioned. Every person you have ever betrayed, lied to, deceived, misled, will be located and interviewed.
Q Okay. And we see your response above [as read in]:
You do what you feel you need to.
A Yes.
Q How would you characterize your response?
A I was not going to send my son to Canada.
Q Why not?
A Again, I felt that if he went up to Canada, I would not see him again and I had custody of our child in the United States.
Q Okay. And how did Richard's words that you read out make you feel?
A Scared.
Q Scared of what?
A That he would do this and that I would have to somehow try to fix whatever damage was caused. 2019-01-29 Affidavit of Patrick Fox, paragraph 12
Capuano falsely testified she was scared as a result of Patrick's email with the subject “Last attempt at an amicable resolution”, dated 2013-07-21.
Capuano's own responses to that email prove she was not scared, in fact Capuano's own words in her response, dated 2013-07-21 were:
“...do what you need to do. I am not scared and I have nothing to hide.”

Then, in another response a day later (2013-07-22), Capuano wrote:
“I no longer care. Take it back to court - I am not scared and I have nothing to hide.”

In addition to proving Capuano's claim of being scared by my email was perjurious, her responses in her emails also provided explicit authorization, in writing, for Patrick to do exactly what he did with the website, which forms much of the basis of the allegations of criminal harassment. Prior to trial Patrick had repeatedly raised this issue with both Mr. Lagemaat and Mr. Myhre, insisting it cannot be considered harassment if he is merely doing exactly what Capuano had explicitly authorized him to do, saying she “didn't care”, and she's “not scared” and she “has nothing to hide”.
Patrick insisted Mr. Lagemaat confront Capuano with her responses. He did not do so. Since both Mr. Lagemaat and Mr. Myhre had reviewed Capuano's emails before trial they must have known at the time of her testimony that her statement was false - particularly since the email where she says she is not scared and has nothing to hide was included in the Crown's book of exhibits. However, both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.
Although the emails from Capuano, admitting she is not scared and she has nothing to hide were included in the Crown's book, they were, unfortunately, buried amongst the other emails in that thread and, I believe, would have been easily missed by the jurors unless explicitly brought to their attention, for example through cross examination.
Q Okay. Now, if we flip back to the previous page, there's an email titled, "One more thing," dated July 21st, 2013, at 11:29 a.m. When was this sent in relation to the email we just looked at?
A Same day.
Q And I see Mr. Fox's -- or, sorry, Mr. Riess's words there, the third line down [as read in]:
And when I say I'm willing to lose everything, I mean it. Another difference is that I really don't have anything to lose at this point.
How did you take those words?
A I -- I didn't know what to mean -- make of them. I -- it was -- it was just another threat, that he would give up everything to get what he wanted.
Q Did {G*****} visit Richard at all in Canada in 2013?
A No. Not until winter break.
Q When was that?
A December through January 2013 to 2014.
Q And was the court involved in that?
A Yes.
Q Was -- so there -- was there a court order that said --
A Yes.
Q -- you will send {G*****} to Canada?
A For these days.
Q Okay. If we could go to Tab 10, please, the first email titled, "Your silence," dated March 23rd, 2014. And this is Mr. Riess telling you that all of your email correspondence has been posted to a website?
A Correct.
Q Prior to receiving this email, were you aware of the existence of a website?
A I had just found out about it.
Q Okay. Tell the jury how you found out about the website?
A An email was sent to my work colleagues under the name Desiree Capuano with information between Richard and I, and it had a link to the website. Work colleagues informed me of the email, they informed me of the website, and steps had to be taken to make sure that we secured our network against him, but that's how I found out about the website.
Q I understand that at that time you were working for a company called The Apollo Group?
A Yes.
Q When did you start working with them?
A 2008.
Q And the Apollo Group owns and operates a number of on-line and physically-situated universities?
A Yes.
Q Including --
A University of Phoenix.
Q University of Phoenix. Other than the fact of telling you about this website, is there anything in this email that particularly troubled you?
A The whole thing was troubling. The -- the second paragraph was particularly troubling [as read in]:
It's unfortunate that most people do not want to be the source of another person's embarrassment when they're face to face with that person so they will not tell you that they've seen your website and read your emails. Instead, they'll pretend they had no idea that your website even existed. Then, behind their back -- your back, they'll snicker and joke amongst themselves about what a fool you are and how terrible it is that what you did to your son and how you -- and what you continue to do to your son. And when you walk in the room, they'll smile politely and act like your friend.
Q Okay.
A He's talking -- referring to my work colleagues.
Q And why do you find that portion significant?
A Because at that point, I didn't know if it was true.
Q Sorry, to be clear, if what was true?
A If my work colleagues were lying to me and reading the website, and talking about me behind my back.
Q And how did that make you feel at work?
A Humiliated.
Q The second-last paragraph reads [as read in]:
Gee, I hope this doesn't give you a complex. I hate to think of you sitting in a meeting wondering how many of your colleagues have seen pictures of you in your underwear.
Do you know what Richard was referring to?
A It's a picture of me in my -- my bathrobe that he had our son take and then send to him.
Q Do you remember the circumstances of how that photo was taken?
A I do. I had just gotten out of the shower, I had my bathrobe on. {G*****} came in laughing while he was on the phone and said he wanted to take a picture, and I told him I had just gotten out of the shower. He said that was fine, he really wanted to take a picture. He's my son and, of course, so he took a picture and it ended up on the website.
Q Around that time, you also became aware that there was a LinkedIn profile in your name that you hadn't set up?
A Correct.
Q Tell the jury how you found out about that and what it was.
A I had a project manager, work associate come to me one day and she said, "It's none of my business and I don't judge anybody, but you may not want to put out on LinkedIn that you're a stripper." And I said, "Excuse me," and she said, "Yes, you're LinkedIn profile says you're a stripper and a drug user," and I went to my LinkedIn profile and I saw my main profile, which was fine, and then I saw underneath it a secondary profile that was created and many of my work associates had already connected with the secondary profile. It had the name of a strip club that I apparently worked at and I like to sit around and watch UFC and drink beer and get high in front of my kids.
Q Okay. What did you do about it?
A I called LinkedIn and I told them about the situation, and they researched it. They got it taken down. I contacted my work associates and I told them not to connect to that LinkedIn profile, that that was not me. And once it was down, I thought I was done.
Q Do you remember if that was before or after you found out about the website?
A It was before.
Q Okay. So then you subsequently found out about a website?
A The individuals that had connected to the LinkedIn profile received the first email from Richard, pretending to be me, that had the link to the website in it.
Q Okay. If we could flip to the next email, it's titled, "Cease and desist," April 28th, 2014. And you emailed Richard [as read in]:
Please stop emailing my coworkers' personal email accounts that you managed to obtain through my LinkedIn account pretending to be me. This is harassment and will be treated as such if you do not cease. Your continued attacks have made me fearful for myself and for our son. Moreover, your aggressive behaviour has made it impossible for us to communicate, co-parent or work together to provide a safe, nurturing and positive environment for G, which is all that you and I should be concerned with. I am willing to work with you in regards to G, but not in this hostile environment you have created. Desiree.
Is that --
A Yes.
Q -- an accurate copy of the email that you sent to Richard on that day?
A Yes.
Q When you sent this email to Richard, did you write "{G*****}," or did you write "G*"?
A I wrote "{G*****}."
Q Okay. And you told Richard at that point that you were fearful for yourself and your son?
A Yes.
Q Why were you fearful?
A At that point, he had my home address, he had my home phone number, he had my work address, he had my work phone number, he had my income and expense declaration, he had a lot of things that could potentially cause risk to myself and my family up on the website.
Q When you say risk, what kind of risk, at the time you wrote this email, was in your mind?
A Honestly, just that all of this information was out there. I didn't know who could read it, I didn't know who would take interest in it, I didn't know who would pay attention to it. It was also an attempt to get me fired from my job, and which would have meant that I had no income to provide for my children.
Q You perceived it that way?
A Yes. 2019-01-29 Affidavit of Patrick Fox, paragraph 13
Capuano falsely testified that when she wrote the email with the subject “Cease and desist”, on 2014-04-28, she was fearful for herself and her son.
However, a Phoenix Police report from 2014-04-18; RCMP reports from April, June and July 2015; and Sahuarita Police reports from July 2015 through January 2016; all of which were on the website, show that Capuano never, during that time - from April 2014 through January 2016 - expressed any fear for her safety. Moreover, documents obtained since the trial, from agencies including Global Affairs Canada, prove that as far back as November 2011, Capuano has consistently and repeatedly been describing me to others as a “coward” and stating she does not believe I would harm her.
The above referenced police reports were publicly accessible on the website, so both Mr. Lagemaat and Mr. Myhre must have known about them at the time of Capuano's testimony. Nevertheless, neither Mr. Lagemaat nor Mr. Myhre attempted to inform the court or the jury that they had reason to believe Capuano was committing perjury.
Q Did you do anything within your company to try to prevent this kind of thing from happening?
A Yes.
Q What happened -- what did you do?
A It was known as "the Desiree Situation" and I had many meetings with our legal department, our security department, our technology department to block access to the website, to block the email addresses that were coming in, and then the legal department actually worked with GoDaddy in an attempt to take down the website.
Q GoDaddy was the Internet --
A Provider.
Q -- host --
A Yes.
Q -- hosting website at the time?
A Yes.
Q Okay. I think we'll go back to that in a little bit. If we could flip to the next email, it's a response to "Cease and desist," the same date. And I'd like to ask you about a couple of things. So we see a line along the left-hand side and that's essentially your email that you had sent to Richard?
A Yes.
Q And then below that where there is no line, that's Richard's response?
A Yes.
Q And so in response to what you said, "This is harassment," the response from Richard was, "Technically, it's not." He goes on to say, at the bottom of that paragraph [as read in]:
There's no private or confidential information being released. Anything which has been or will be published or distributed as either your own words or is completely true, therefore, there is no libel and no basis for a claim of harassment.
A Correct.
Q So what did you understand from that?
A That he was telling me that he would -- he would not stop, and that I had no basis for a claim of harassment.
Q If I could take you to the next email dated May 2nd, 2014, titled, "Reciprocity." So here, Richard alleges in the first paragraph, he says [as read in]:
It also occurs to me that if what you allege is true, and I have, in fact, contacted some of your associates to provide them information which may be damaging to your reputation, then that is merely the same thing you had done when you contacted Steve, my rabbi, et cetera, is it not?
Did you contact somebody named Steve who was -- you understood to be Richard's rabbi?
A No, Steve was not Richard's rabbi, Steve Riess is Richard's father. I never contacted a rabbi.
Q Did you contact Richard's father?
A Yes. 2019-01-29 Affidavit of Patrick Fox, paragraph 14
Capuano falsely testified Steve Riess is Patrick's father.
  • TR 2017-06-12 p20/13-16
  • TR 2017-06-14 p24/21

As far back as 2011, and possibly even earlier, Capuano has periodically insisted Patrick's father is a man named Steve Riess from Ontario, Canada and that Patrick was born Ricky Riess in Ontario. Capuano's assertions to this effect usually occur in conjunction with her alleging Patrick is not a US citizen, that he was living illegally in the US, and that he is not permitted to enter the US.
However, in January 2015, Capuano admitted in an email that she had sent Patrick's photo to Steve Riess and he was unable to identify Patrick as his son. Capuano conceded in that email that Steve Riess is not Patrick's father.
Documents obtained since the trial, from CBSA and IRCC, show that the Canadian government acknowledges Patrick was not born in Canada and is, therefore, not a Canadian citizen, further proving he is not Ricky Riess from Ontario and, therefore, Steve Riess cannot be his father.
Moreover, Ricky Riess from Ontario had been arrested in Toronto in the early 1990s. The mugshot and fingerprints from that arrest do not match Patrick's. The RCMP and the Crown have had access to that booking information since before the current charges had been filed. Patrick also told Mr. Lagemaat about the fact that those fingerprints and mugshot prove Patrick is not that person and, therefore, Steve Riess cannot be his father.
Also, numerous emails between US DHS, CBSA, and the RCMP, which were known to Mr. Lagemaat and Mr. Myhre prior to trial, show those agencies acknowledging Patrick is not a Canadian citizen and, therefore, cannot be the person who was born Ricky Riess, son of Steve Riess, in Ontario.
Capuano had stated, repeatedly, in her RCMP interviews that Steve Riess is Patrick's father, and that Mr. Riess is willing to do a DNA test to prove that. Prior to trial Patrick told Mr. Myhre that he, too, would very much like to participated in a DNA test, to prove once and for all, whether Steve Riess is his father - with the one condition that the verifiable results be provided to him so he may publish them. Mr. Myhre responded “That's not going to happen.”
Patrick had discussed the circumstances of his place of birth and citizenship, at length, with Mr. Lagemaat, Mr. Myhre, and the RCMP, prior to trial.
Given all of the foregoing facts and evidence, which were all known to Mr. Lagemaat and Mr. Myhre prior to trial, then they must have known at the time Capuano testified that she was committing perjury by testifying that Patrick's father is Steve Riess. Nevertheless, both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.
Q Did you ask his father for any assistance?
A Not at that time. No, not at that time.
Q The last paragraph, Richard wrote [as read in]:
Moreover, when I informed the court of your actions and requested it order you to desist, it refused to get involved.
What did you understand him to be referring to and what did that mean to you?
A Honestly, I have no idea. He -- he made claims that I contacted a bunch of his associates and rabbis, but I didn't even know these people, or who they were, or how to get a hold of them, and I certainly never contacted anyone. 2019-01-29 Affidavit of Patrick Fox, paragraph 15
Capuano falsely testified she “certainly never contacted anyone” regarding me.
However, in numerous emails in 2012 Capuano claimed to have contacted my associates, rabbi, father, ICE, and the FBI. And, in an email in February 2013 Capuano said she is going to contact “the Jewish community” to tell them {G*****} and I are not Jewish so they would not help me in my legal challenges.
Moreover, in her own testimony Capuano admitted to contacting the person she claims to believe to be my father.
  • TR 2017-06-12 p20/15-18
And in her RCMP interviews Capuano also stated she had contacted the person she believed to be my father and spoke with him at some length. By Capuano's descriptions to the RCMP, her conversations with my supposed father were decidedly conspiratorial and adversarial against me.
Further, documents obtained since the trial, from Foreign Affairs, Trade and Development Canada contain Case Notes from the Canadian Consulate in Los Angeles which detail a phone call they received from Capuano on November 1, 2011, wherein Capuano falsely accused me of numerous offences; she attempted to instigate an investigation which could lead to my arrest, detention and deportation; and admits to also taking similar steps with US Immigration and Customs Enforcement (ICE). That call occurred BEFORE the California family court ordered Capuano to return {G*****} to me; BEFORE all the emails between Capuano and I; and years BEFORE the website was created. Although that document may not have been known to Mr. Lagemaat and Mr. Myhre at the time of Capuano's testimony, it nevertheless proves two critical points: 1) Capuano was committing perjury; and 2) Capuano began her attacks on me and her attempts to ruin my life long before any of my alleged attacks on her.
Both Mr. Lagemaat and Mr. Myhre knew of the emails and the RCMP interviews where Capuano admitted to contacting third parties about me, before trial. Therefore, they must have known when Capuano testified she “certainly never contacted anyone”, she was lying. But neither Mr. Lagemaat nor Mr. Myhre confronted Capuano with the evidence she was lying, or took steps to inform the court or the jury they had reason to believe Capuano was committing perjury.
Q But specifically with his mentioning here, ". . . I informed the court of your actions and requested it order you to desist, it refused to get involved," do you know what he's talking about?
A In the custody court, he told the custody judge that I had contacted these people.
Q And did the court refuse to get involved?
A There was no evidence.
Q Okay. The next email, "Re waiver of rights, dated May 22nd, 2013," and this email chain starts at the bottom of the page with an email from Richard on May 21st, 2014, and he wrote to you [as read in]:
I hereby serve notice that effective immediately, I waive all my rights with respect to {G*****}.
And he goes on to try to be explicit that he's saying he's waiving all of his legal rights to custody of {G*****}.
A Visitation and communication.
Q Okay. And we see your response above that. With respect to communication, you say [as read in]:
I see no reason for anything to change with respect to the communication between you and your son.
And then on number 3, visitation:
I don't know how else to explain to you that I think it is important for {G*****} to spend time with you.
So how would you characterize your response to Richard saying he gives up all legal rights?
A He had talked about it before so this wasn't the first time that he'd brought it up. It was the first time that he told the lawyer, but at this point, my job as a mom is to make sure that my child has both of his parents so I never -- I wasn't going to restrict their communication. It wasn't restricted at that point. There was no reason to restrict it just because he said this. 2019-01-29 Affidavit of Patrick Fox, paragraph 16
Capuano falsely testified that as of July 2014 she had not attempted to prevent communication or visitation between Patrick and {G*****}.
However, on at least two occasions prior to July 2014 Capuano had formally sought an order in the family court prohibiting all contact between Patrick and {G*****}. The first time was in September 2011, while she had abducted {G*****} to Arizona - Capuano had attempted to obtain an order of protection against Patrick, naming herself and {G*****} as the protected parties. The second time was in January 2013, while Patrick was in ICE custody as a direct result of Capuano filing a false report against him with them - Capuano had explicitly requested the California family court issue an order prohibiting all contact between Patrick and {G*****}.
The documents filed by Capuano, with the Arizona and the California family courts prove Capuano did seek to prohibit all contact on both occasions. The family court documents were on the website, so both Mr. Lagemaat and Mr. Myhre knew of them at the time of Capuano's testimony.
There were other instances of Capuano deliberately interfering with, or prohibiting Patrick's contact with {G*****}, however it cannot be proven beyond a doubt that Mr. Lagemaat and Mr. Myhre knew of them at the time of Capuano's testimony.
Although Mr. Lagemaat and Mr. Myhre must have known Capuano was committing perjury, neither of them attempted to inform the court or the jury of such.
And he was supposed to get on a plane in a couple days and go see his father so my only concern with this email was did he still want his son for the visitation?
Q Okay. And which you address in point number 3(a), you tell him [as read in]:
If you're unable or unwilling to have {G*****} at any time, he can stay with me.
A Yes.
Q You also go on to express a concern in (b):
Let me be as blunt about this as I can. If you take my son across international borders using anything but his given name and ID issued to him by the United States Federal Government, I will use everything in my power to see justice done.
A Yes.
Q [As read in]:
That said, I agree to fly our son to California and agree to fly him to Canada.
A Yes.
Q Your concern there was what?
AHe was using a different name. He was trying to indicate that my child's name should be a different last name, and he indicated he wanted to believe -- if I'm not mistaken, in this one he was indicating that he was going to be going with my son from California to Canada and I didn't want to lose track of my son. I just wanted to make sure that everything was documented properly.
Q So you made an allusion to this -- oh, I understand by this time, then, Richard was no longer going by the name Richard?
A I believe so. He had -- he had told me that he had -- he was Patrick Fox.
MR. MYHRE: Okay. This might -- there are a few more questions on that line, but it might be a good time for the break, My Lady.
THE COURT: All right. Members of the jury, we'll take the afternoon break.
(JURY OUT)
THE COURT: Anything to address? All right. Thank you.
(WITNESS STOOD DOWN)

(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)
(PROCEEDINGS RECONVENED)
MR. MYHRE: I have concerns about it being on the record.
THE COURT: Yes, thank you.
(JURY IN)
DESIREE CAPUANO, recalled.
THE COURT: Thank you. Go ahead.
EXAMINATION IN CHIEF BY MR. MYHRE, CONTINUING:
Q Ms. Capuano, when we left off, you had just mentioned that at some point, Richard started referring to himself as Patrick Fox?
A Correct.
Q And that was -- was that, roughly, around the time of this May 22nd email?
A It was summer of 2014.
Q And how did that happen from -- as far as you were concerned?
A It was -- it was very abrupt. 2019-01-29 Affidavit of Patrick Fox, paragraph 17
Capuano falsely testified Patrick abruptly and without notice simply assumed the identity “Patrick Fox”. And Capuano further falsely testified there was nothing linking the name "Patrick Fox" to his past.
  • TR 2017-06-12 p23/22-25
However, by her own admissions, in an RCMP interview (2016-07-13 at para. 470), Capuano stated Patrick testified in the California family court in 2012 (though it was actually at the December 2011 hearing) that his birth name was Patrick Fox.
Also, as soon as Patrick reverted to using the name Patrick Fox, in 2014, he promptly informed Capuano and, upon request, he provided her copies of his government issued identification. Patrick was completely open, honest and forthright with Capuano, at all times, regarding his name and identity.
Both Mr. Lagemaat and Mr. Myhre had the transcript and the audio recording of the 2016-07-13 RCMP interview referenced above. In addition, Mr. Lagemaat also had Patrick's annotations to that interview. And both Mr. Lagemaat and Mr. Myhre had the emails where Patrick informed Capuano that he would no longer be using the name Richard Riess; that he had returned to using his birth name, Patrick Fox ; and where he provided her copies of his ID. Therefore, Mr. Lagemaat and Mr. Myhre must have know that Capuano was committing perjury when she testified. However, both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.
Further on this issue, I believe Capuano is deliberately pretending to confuse the issue of Patrick's name and identity.
There was no documentation to show a name change. There was nothing that I was given to indicate that -- in any way that he was anybody other than Richard Riess until he just said, "I'm Patrick Fox."
Q Okay. And did that concern you at all?
A Yes.
Q Why?
A Because this is a different identity, a different identity that was not tied to anything of his past or the child, the custody agreement, or anything else. 2019-01-29 Affidavit of Patrick Fox, paragraph 17
Capuano falsely testified Patrick abruptly and without notice simply assumed the identity “Patrick Fox”.
  • TR 2017-06-12 p23/11-15
And Capuano further falsely testified there was nothing linking the name "Patrick Fox" to Patrick's past.
  • TR 2017-06-12 p23/22-25
However, by her own admissions, in an RCMP interview (2016-07-13 at para. 470), Capuano stated Patrick testified in the California family court in 2012 (though it was actually at the December 2011 hearing) that his birth name was Patrick Fox.
Also, as soon as Patrick reverted to using the name Patrick Fox, in 2014, he promptly informed Capuano and, upon request, he provided her copies of his government issued identification. Patrick was completely open, honest and forthright with Capuano, at all times, regarding his name and identity.
Both Mr. Lagemaat and Mr. Myhre had the transcript and the audio recording of the 2016-07-13 RCMP interview referenced above. In addition, Mr. Lagemaat also had Patrick's annotations to that interview. And both Mr. Lagemaat and Mr. Myhre had the emails where Patrick informed Capuano that he would no longer be using the name Richard Riess; that he had returned to using his birth name, Patrick Fox ; and where he provided her copies of his ID. Therefore, Mr. Lagemaat and Mr. Myhre must have know that Capuano was committing perjury when she testified. However, both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.
Further on this issue, I believe Capuano is deliberately pretending to confuse the issue of Patrick's name and identity.
Q Specifically with regards to {G*****} visiting, did that cause you any concern?
A Yes. The custody agreement that said he had visitation was to Richard Riess. The birth certificate of my son has the father listed as Richard Riess. The passport that my son has says his father is Richard Riess. And with all of the documentation showing who his father is, if he went out to Canada and he's in the custody of someone named Patrick Fox, who has no documentation that he's also Richard Riess, then if anything were to happen, they would have no idea who my child was supposed to be with. And being that he's in another country, I would have very limited ability to help. Lagemaat should have crossed on this. What difference would it make what Patrick's name was? Capuano had sole custody of {G*****} - she could have authorized him to be in any country with any person. There was no requirement that {G*****} could only be with his father.
Capuano's claim is irrational and unfounded.
Q Okay. If we could turn to the next email, please, dated June 24th, 2014. In this email, in the first paragraph, Richard wrote [as read in]:
I would like to congratulate you on turning our intelligent, inquisitive, generally proactive son [et cetera et cetera] . . . into a lethargic, uninterested, unmotivated slug.
A Yes.
Q And then it goes on to give reasons why he's saying that?
A Yes.
Q And then the second last paragraph, at the bottom second-last sentence [as read in]:
You turned him into a white trash trailer park pothead boozer. People like you, white trash, are a blight on society and an infection that needs to be lanced.
And then right at the last line on this page says:
P.S. you will notice I've cc'd {G*****} on this.
Now, we don't see {G*****}'s name at the top. Do you remember if {G*****} was actually cc'd on his email?
A Yes, he was.
Q Okay. Did this email bother you at all?
A My son was 14 years old. I had him with me all the time so I was familiar with how teenage boys behave. They're, for the most part, unmotivated so all this did was illustrate to me that he wasn't familiar with typical behaviour of teenage boys.
Q Now, specifically with reference to "white trash," "trailer park," were those terms you'd ever heard from Richard before?
A Oh, yes.
Q Could you give the jury some idea of the frequency of which you heard that from Richard?
A There's about 400 emails and in -- and in a vast percentage, there is some slight indicating that I'm white trash.
Q If we could turn to the next email, please? "Waiver of rights," dated July 21st, 2014. The second paragraph, Richard writes [as read in]:
I also want to be clear that this is not a surrender on my part. I have not given in or given up on anything. That family court case was getting in my way and had become a nuisance so it had to be severed so I could proceed with my plans.
Down a few lines [as read in]:
I explicitly stated, "Wanted," so that the court would have no choice but to grant the request unless you objected, which, of course, you wouldn't because you're an idiot and you have no idea when you're being played, probably due to your narcissism.
What did you understand Richard to be referring to when he said -- when he talked about his plans?
A The plan to destroy my life.
Q And so how did this email make you feel?
A The -- the part of this email that hurt me the most was where he indicated that he told {G*****} that he waived his rights to him and that {G*****} seemed taken aback. And it was confusing to me how he cannot understand that any child would be upset when his father told him he was waiving his rights to him, especially because it was getting in the way of his plans to destroy me.
Q And could you just explain why that hurt you?
A It hurt my son.
Q The next email dated the next day, July 22nd, 2014, titled, "Telephone communication regarding {G*****}," Richard wrote [as read in]:
It's obvious from how you conducted yourself on the telephone a few moments ago that you're afraid of and intimidated by me.
And then he goes down -- on -- if we go to the fourth paragraph:
Anyway, I couldn't understand a thing you said on the phone because you were trying so hard to say only and exactly what you had rehearsed beforehand while, at the same time, trying not to cry, presumably out of fear and anxiety, and you were all muffled and shit.
Do you know what phone call he was referring to?
A I -- I -- I don't remember exactly.
Q Do you remember calling him and having something rehearsed to say and trying not to cry?
A Yes. Yes, I do. I don't remember the circumstances.
Q How frequently in this period of time did you communicate with Richard over the telephone?
A I think are were a total of three times.
Q In what time period?
A The whole six years. More so in the beginning.
Q When you say the beginning, are you referring to --
A 2011.
Q 2011. If we could go to the next email, please, dated the same day, titled, "Forward Reforward Income Expense Declaration," and Richard writes [as read in]:
As you can see from the attached screenshot, it seems you've requested that desireecapuano.com be blocked by Apollo's internal network. While I'm assuming you've requested it, what's the matter, are you embarrassed and/or ashamed of the things you've done?
It goes on:
There's a few easy workarounds and I'll be sure to implement before the next update is posted to the site.
And then below that, there's forwarded an email from a David Shroads at Western International University. Do you know who Western International University is?
A It's a college owned by Apollo.
Q And what did you understand to have been the subject of this email from David Shroads?
AI believe Richard sent out a mass communication to people that worked for Apollo or any of the subsequent universities owned by Apollo, including the income and expense declaration that I was required to provide at the custody court.
Q And so at the top when Richard writes [as read in]:
. . . it seems you've requested that desireecapuano.com be blocked by Apollo's internal network.
Had you requested that?
A I didn't have to request it, the company blocked it.
Q Okay. The next email dated the same day, titled, "Forward forward medical marijuana program ID." And this is an email, at the top, from Richard to you, but it starts, if we look at the bottom just where there are the little arrows [as read in]:
On July 22nd, 2014, at 5:02, Desiree Capuano wrote: "Please note, as attached, I do have a medical marijuana card so my use of marijuana is legal and I don't have to explain it or justify it to anyone and what I do in my own home around my own kids is my own business. Desiree Capuano.
Did you write that email?
A No.
Q Okay. What did you understand -- sorry, let's just go up a little bit. Then there's an email, Dawn Foster to Desiree Capuano [as read in]:
What the hell is this? Is he harassing you again?
Do you know Dawn Foster?
A Yes.
Q Who is that?
A She was my co-worker. She was on my team.
Q Okay. And so what do you know about this email on July -- the one at the bottom, "Please note I do have a medical marijuana card"?
A I know that he sent it, signed by me, to make it look like it was from me to my work associates. So he sent out another email again to my colleagues, and I only knew about that because she forwarded it over to me.
Q Do you have a medical marijuana card?
A Yes.
Q When did you get that?
A 2012. 2019-01-29 Affidavit of Patrick Fox, paragraph 18
Capuano falsely testified she obtained her medical marijuana card in 2012.
However, the actual card, the applications, and the supporting documents were on the website. They clearly show Capuano applied for the card immediately following her arrest for marijuana possession at the end of September 2011, and obtained the card in mid-November 2011.
Mr. Lagemaat and Mr. Myhre knew of the medical marijuana card and application on the website. So they must have known Capuano's statement was false at the time she made it. However, neither Mr. Lagemaat nor Mr. Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was providing false testimony.
Q Okay. If we then go and look at what Richard wrote to you at the top, in the second paragraph, he states [as read in]:
You do realize that the passive dissemination of already publicly-available truthful information, for example, court documents and their attached exhibits is not harassment, right?
Down:
Because telling the truth is not illegal and is not harassment.
And then in the PS section:
In case you're wondering, from what I'm told, that original message was sent to 681 recipients.
A Yes.
Q Okay. How did that make you feel?
A Mortified.
Q And Ms. Capuano, just as an aside, if you ever see a point in an email where you think something's inaccurate or it's been edited from the actual emails that you received and sent to Richard, please alert us to that.
A Okay.
Q I take it so far, they've appeared to be accurate?
A They have.
Q Okay. If we could go to the next email, please? Dated the next day, "Request for a status update" [as read in]:
Hello, Desiree, it has been a little over a year-and-a-half now since you filed your false report against me to ICE --
What's ICE?
A Immigration Custody.
Q
-- claiming I was an illegal alien . . .
Et cetera. Et cetera. He goes on to detail some of the things he's been doing as a parent, criticizing you as a parent.
A Yes.
Q And then the last paragraph [as read in]:
And for all the 1200 or so people that have been bcc'd on this message, I wonder if you've told them about . . .
And then a number of alleged misdeeds on your part.
A Yes.
Q Do you know whether this was actually bcc'd to 1200 people?
A I don't know.
Q And just over the page, the first full paragraph:
Since you decided to stop all communication around the time your website was set up and all your emails to me have been made public, I'm bcc'ing this message to all the recipients that may be associated with you.
And then he provides your -- or he provides a phone number, an email address and a physical address, and then the website.
Now, was that your phone number -- were those your phone numbers at the time?
A Yes.
Q Was that your actual home address at the time?
A Yes.
Q Now, in this email, Richard references you stopping all communication with him?
A Yes.
Q Is that -- was that true?
A Yes.
Q And why did you do that?
A Communication with him wasn't going anywhere and all communication was being put up on one side. I wasn't going to give him anything else.
Q I'm sorry, Ms. Capuano, I just couldn't quite hear that.
A I wasn't going to give him anything else that he could use against me. Lagemaat should have crossed Capuano further on this. She admits the reason she stopped communicating from March through May 2014 is because she didn't want to give Patrick more stuff he can use against her by publishing it on the website.
She's also acknowledging that Patrick was using her own words against her. That implies she acknowledges her words were offensive and/or inappropriate.
Q In the summer of 2014, did {G*****} visit with Richard in Canada?
A Yes.
Q Roughly, what time period?
A I don't remember the exact dates. It was sometime between May and July.
Q And for, roughly, how long?
A I think it was about six weeks.
Q Could we flip to the next email dated the same day re -- or "Forward re medical marijuana program ID." And Richard writes to you [as read in]:
It seems from the number of responses I've received today that people are not as supportive of you as you think.
And then at the end of that paragraph:
You have to realize that most people will be nice to your face and then look down on you when you leave the room.
And then the next paragraph:
I told you I will destroy you slowly and incrementally and legally. I will do so simply by using your own actions and words against you. I gave you two years to provide me an amount of evidence against you.
How did those words make you feel?
A Terrified. I was pretty sure that my communications to him were reasonable, but in his hands, who knows.
Q And he goes in the next paragraph down, the third sentence [as read in]:
And it's only a matter of time until your current employer realizes how full of shit you are and cuts you loose.
In your mind, did these emails that came from Richard have an impact on your employment at Apollo?
A I had support from Apollo, but because of this, I was always more the security threat than anybody else.
Q And do you feel that that impacted you in the future, not at this time, but later on?
A Yes.
Q Could you tell the jury how?
A In 2015, Apollo went through layoffs and they were only allowed to keep so many members of each team and even though I had been there for seven-and-a- half years, I was one of the ones let go, and another colleague of mine wasn't. And I -- I was informed through her that the security risks were part of the reason I was selected to be let go.
Q When were you let go?
A It was September 30th of 2015.
Q And then the next paragraph down [as read in]:
Don't think for one second that anything will ever be more important to me than destroying you. Every moment of my life is focused on the single goal.
Did you believe that statement?
A Yeah. In this email, I also got the impression that he had hired an investigator who was then following me and tracking me.
Q Can you point the jury to the spot here where you got that impression?
A
And you insisted I was full of shit when I informed you about the investigator. As soon as he provides me the name and contact information about your druggie friends and dealers, they'll be smiling right up there on your site alongside you.
Okay. How did this, telling you there was an investigator, make you feel?
A I was always looking around, always. I didn't -- I didn't have anything to hide, but thinking that somebody's following you, thinking that somebody's trying to get information about you makes you look around.
Q Sorry, makes you?
A Look around.
Q This insinuation that you have druggie friends and dealers, was that something you had heard from Richard before?
A Yes, which didn't make sense.
Q Do you know why or from your perspective why that was being said?
A I assume that he thought that I had druggie friends. I have a medical marijuana card, I go to a store and buy it. I pay taxes on it so I'm -- and I guess he assumed.
Q Was there anything involving your former partner, Kris Lauchner?
A Yes. That probably had a lot to do with it. He -- he was arrested for using drugs and he knew people. I was not associated with them.
Q And we went over this pretty quickly this morning, but do you remember when you separated from Kris Lauchner?
A Yeah, October 2nd of 2012.
Q Okay. The next email, please? Oh, sorry, was there something else?
A Yeah. He -- he indicates that if he was really motivated, he would do this. I -- I didn't think that it would require him to be motivated. I took this as part of something that he had planned on doing [as read in]:
I would send your resume to every recruiting firm and HR department in Phoenix and Tampa, along with your bio. You will never be able to get another job in IT. It's only a matter of time until your current employer realizes how full of shit you are.
Q I'm sorry, you started by saying how you took that. How did you take that, I just missed that.
A As part of a plan of things that he intended to do.
Q Okay. The next email, please, titled, "Use of graphs and access statistics," dated July 24th, 2014. Just at the top, Richard writes [as read in]:
As promised here, the usage graphs for the site showing the spikes which follow each time something was published about you.
He goes on to say in the fourth paragraph:
I have not received a single critical email.
And then in the fifth paragraph:
A quick scan of the log reports shows the following are some of the most frequently accessed URLs, and I note in there there's a -- one that's titled "Mugshot." He's labelled one as, "The picture of you in bed."
And then he goes on to say [as read in]:
There also seems to be a lot of interest in the pictures of your bedroom.
And so did you understand Richard, here, to be referring to the usage statistics for the website, desireecapuano.com?
A Yes.
Q And how did it make you feel to know that --
A He was taunting me, knowing I couldn't do anything about it.
Q And how did that make you feel?
A Powerless.
Q In particular, did it bother you that there might be a picture of you in bed, or pictures of your bedroom on a public website?
A Yes.
Q Okay. The next email dated July 31st, 2014, if I could just take you to the second page of this email? It appears -- it starts with an email from Richard, saying [as read in]:
Desiree, please be advised due to my lack of interest in dealing with GoDaddy, I intend to transfer the hosting of the aforementioned domain and all services thereto related to my own servers which are based outside the US and will, therefore, not only -- not be subject to US laws and regulations, but will also be under the exclusive control and authority of, well, me.
So what did you understand him to be referring to?
A Well, he was trying to indicate that he was going to take down the website from GoDaddy and host it himself. He tried to make it seem like it was his idea, 2019-01-29 Affidavit of Patrick Fox, paragraph 71
Capuano falsely testified GoDaddy made Patrick take the website down.
However, the emails between GoDaddy and Patrick, on 2014-07-30 prove that is false. Capuano's complaint was only about sending unsolicited emails to her associates, not about the website. Moreover, in Patrick's response to GoDaddy, he proactively informed them he would be moving any hosted services associated with the domain in question, so the complaint was moot. GoDaddy did nothing further and shortly thereafter Patrick moved the domain to another provider.
Both Mr. Lagemaat and Mr. Myhre knew of that email thread. Therefore, they must have known Capuano was lying when she testified. However, neither Mr. Lagemaat nor Mr. Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano had committed perjury.
but I -- I know that Apollo Group's legal department was working with GoDaddy at that time. 2019-01-29 Affidavit of Patrick Fox, paragraph 19
Capuano falsely testified Apollo Group's legal department was working with GoDaddy to have the website taken down.
However, the email dated 2014-07-30, from me to “abuse@godaddy.com”, with Capuano CC'd, shows that the complaint was actually filed from the Capuano's personal Gmail email address (i.e. desiree.capuano@gmail.com). Also, the emails show the complaint pertained ONLY to sending unsolicited emails from the DNS domain hosted by GoDaddy - the complaint had absolutely nothing to do with the website.
Mr. Lagemaat and Mr. Myhre knew of that email thread at the time if Capuano's testimony. They knew Capuano alone was the only participant in the complaint and that the complaint had nothing to do with the website. Therefore, Mr. Lagemaat and Mr. Myhre must have known Capuano was lying, yet they both refused to inform the court or the jury that they had reason to believe Capuano was lying.
Q Okay. Now, if we go back to the other page, this appears to be an email from Richard or Patrick to a Detective Tuchfarber. Do you know who that is?
A Yes.
Q Who is that?
A He is a detective at the Phoenix Police Department. I called the Phoenix Police when I found out about the website and they opened a case and this was the person that was assigned to the case, and he responded to Richard's initial email.
Q Okay. And just to be clear, you say you contacted the Phoenix Police Department when you found out about the website. Why did you contact them?
A I figured there had to be something that could be done about it. He was contacting my people I work with, my place of employment. He had my personal information up on this website. It felt like the right thing to do. 2019-01-29 Affidavit of Patrick Fox, paragraph 20
Capuano falsely testified she filed a complaint with the Phoenix Police about the website.
However, the Phoenix Police report of that complaint, which was on the website, proves Capuano was only complaining about Patrick emailing her associates, not about the website.
Mr. Lagemaat and Mr. Myhre knew about that police report at the time of Capuano's testimony. Therefore, they must have known she was committing perjury. Both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.
Q From your perspective, did the Phoenix Police Department have any success in getting any of this to stop?
A No, the detective made an arrangement with Richard that Richard would stop his harassment as long as the detective investigated my drug use.
Q Did the -- was that something communicated to you by the detective?
A Yes.
Q Did the detective investigate your drug use?
A I had a medical marijuana card so insofar as he saw that, yeah. He'd also been to the home, he had seen everything.
Q Okay. And did Richard stop the harassment?
A For a little while, yes.
Q For how long?
A I'm not sure exactly.
Q And so when you say stopped, do you mean -- what do you mean?
A He stopped emailing the people I worked with.
Q Do you know whether or not in that period of time he took the website down?
A I -- I think it was down shortly after, but I think that's because GoDaddy took it down.
Q If we could go to the next email, then. Moving ahead in time to December of 2014, Richard writes to you [as read in]:
You don't mind if I post that telephone call on the website, do you?
Do you know what he's referring to?
A I -- I called him and spoke with him about something.
Q Do you know whether he recorded your phone calls?
A I -- I have no proof he recorded it, but I believed he did, and I believe that they're up on the website so I haven't listened to them on the website so for myself, I don't know if they're there.
Q Why do you believe they're on the website?
A I think he told me. Capuano is being overly vague and non-committal, using "I believe" and "I think". This should have raised a red flag for Lagemaat and he should have followed up with her, to make sure the jury knew she had no reason to believe Patrick had recorded or published her calls.
Also, Lagemaat should have pointed out that she is the one who has been caught and admitted to recording Patrick's calls with {G*****}; and that the family court had to tell her to stop doing so.
There is a statement Pendleton made to the Sahuarita Police where he references something Patrick said to {G*****} on the phone, which suggests that even in 2015 Capuano was still monitoring Patrick's calls with {G*****}.
Q Richard goes on, in the third paragraph, there [as read in]:
As I was saying when you hung up, a very white trash response to losing a debate, by the way, if you don't allow {G*****} to proceed with the visitation as previously agreed, you are actually helping my cause. I know that the best way to hurt you permanently is emotionally, not through your reputation, finances or career. Remember, I told you many months ago that the other stuff I was doing was just to distract you? And what could be more effective than for your child to utterly despise you because of your own actions? By telling {G*****} he could not visit for the entire break, then completely revoking that for no reasonable cause, you have completely obliterated the last shred of respect and tolerance he had for you. And there's the other aspect, the court. You see, the court has never seen you try to interfere with visitation before because there's always been an order compelling you. Now I can show the court that you absolutely agreed in writing to the visit, then after I paid for the plane tickets, you refused for what the court will consider a very unacceptable reason. You see, you don't think things through. You're a fool, Desiree, that's why you are where you are.
A I remember what the call was about.
Q What was the call about?
A It -- it was about {G*****} travelling to Canada and being in Richard's custody without him having documentation showing that he was Richard Riess. And I was telling him that I was not going to allow {G*****} to travel to Canada unless he had some documentation showing that he was Richard Riess.
Q Okay. And how did you feel about Richard's comment, ". . . the best way to hurt you permanently is emotionally"?
A I knew that's what he was trying to do, and it worked a lot. I know that he was using my son to hurt me.
Q Okay. And I'll ask you more about that a little bit later.
MR. MYHRE: I did want to get to the last email, but I note the time, My Lady. There's one more email in 2014.
THE COURT: Go ahead.
MR. MYHRE:
Q So if we could flip to that last 2014 email, it's titled, "The ugly proof," dated December 17th. Do you remember whether or not {G*****} was cc'd on this email?
A I don't remember.
Q Could I ask you to check that overnight?
A Absolutely.
Q And so here, Richard tells you he's attaching his BCID, right in the first sentence there [as read in]:
. . . birth certificate, PAL, and just for good measure, a copy of my most recent paycheque.
Now, Richard goes on to say in the last paragraph on that page, I'm going to start reading partway into it:
If you think I'm lying and don't really have a PAL, you can check with {G*****}.
What's a PAL, or what did you understand it to be?
A A -- a gun licence, a Canadian gun licence.
Q
You need a PAL to get a membership at a shooting range, which he can tell you I have, or I can scan the membership card for you. I can also send you pictures of my pistols and his rifle, which I wouldn't be able to get without a PAL. Face it, man, my name is Patrick, and I have a squeaky clean background and I'm an upstanding member of society who makes pretty decent money and {G*****} likes me more than he likes you. You have been played, you're a sucker. For years, I was paying a salary in your name through my corporations. You do remember Vertical Inversion Systems, right?
What is that?
A It's a company that he incorporated when -- when we were together.
Q [As read in]:
And not withholding taxes. You've got thousands in back taxes which eventually the IRS is going to go looking for and if they don't, they're just a phone call away. I'm methodical and think things through. I look at the long-term. Sometimes my plans take years to complete, but I always see them through. PS, I emphasize the PAL because it's hard to get, involves an extensive background check and requires a clean record and proof of good moral standing and psychological stability. If there was any truth to your claims, I would never be able to get it. Do not take any statements or references to firearms above as being in any way threatening. I would never use a firearm offensively or to threaten someone. They are for sport and target practice only.
Did you know, before this email, that Richard had guns in Canada?
A I know that he had taken {G*****} to a shooting range. I did not know that he had guns. 2019-01-29 Affidavit of Patrick Fox, paragraph 21
Capuano falsely testified that as of 2014-12-17 she did not know that Patrick had guns in Canada.
Capuano testified that prior to receiving the email with the subject “The ugly proof” on 2014-12-17, she did not know Patrick had guns.
However, Patrick had informed Capuano, prior to that point, in an email dated 2014-11-08, that he had gotten {G*****} a Mauser K98 rifle.
Both Mr. Lagemaat and Mr. Myhre knew about the 2014-11-08 email wherein Patrick informed Capuano of the Mauser. Therefore, they must have known she was committing perjury when she made this statement. Both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury they had reason to believe Capuano was committing perjury.
Q And so we see Richard explicitly told you why he was telling you about the guns?
A That's what he says.
Q Okay. How did that make you feel?
A He also told me I shouldn't feel offended when he calls me white trash so I didn't really take that at face value.
Q Okay. Did knowing that he had guns, or learning that he actually had guns cause you any concern?
A Terribly, yes.
Q Why?
AThe birth certificate that was attached in this email was from Florida so the birth certificate he sent me said that he was Patrick Fox from the United States, but then he sends me a gun licence that says he can purchase firearms in Canada under a name that's not his. The ability to do things with those firearms and not have them traced back to Richard Riess is very easy. Lagemaat should have crossed her on this. "Patrick Fox" IS Patrick's real name, and either way the firearms were registered and could easily be traced back to him, regardless of the name on the PAL. They were registered to Patrick's home address.
Also, this just shows further that Capuano simply refuses to accept the reality that Patrick's name really is "Patrick Fox" and that the name she knew him as (or claimed to know him as) was the "fake" name.
Q Was there anything else about this email that you found significant?
A No, I -- there's a paragraph where, again, he's calling me a lousy mother and that he does more for our son than I do, but aside that, no.
MR. MYHRE: This might be a good time, then, My Lady.
THE COURT: All right. Thank you. Members of the jury, thank you very much for you attention through the day today. We're finished for the day and I'll ask you all to be back and ready to continue at the usual time tomorrow. Thank you.
(WITNESS STOOD DOWN)

(JURY OUT)

(PROCEEDINGS ADJOURNED TO JUNE 13, 2017, AT 10:00 A.M.)
Transcribers: D. MacFie, I. Lim