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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 16, 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 16, 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
J.C. WordAssist Ltd. (Vancouver)
Suite 614 - 808 Nelson Street, Vancouver, B.C. V6Z 2H2
Phone 604-669-6550

INDEX

WITNESSES FOR THE CROWN:

  • JASON POTTS7
    • EXAMINATION IN CHIEF BY MR. MYHRE:7
    • CROSS-EXAMINATION BY THE ACCUSED:16

EXHIBITS

  • EXHIBIT 6: Binder containing printouts of emails from Desiree Capuano from 2015/20166
  • EXHIBIT 7: DVD containing recorded statement of Patrick Fox given to Jason Potts on June 16, 201615
  • EXHIBIT 8: Binder titled "Statement of Patrick Fox, June 16, 2016"15
  • EXHIBIT 9: Documents shown to Patrick Fox during interview on June 16, 201615

RULINGS

  • Nil
(Jury Out)
Proceedings

BAN ON PUBLICATION - INHERENT JURISDICTION


Vancouver, B.C.
June 16, 2017

(JURY OUT)

THE CLERK: In the Supreme Court of British Columbia, at Vancouver, this 16th day of June, 2017. Recalling the matter of Her Majesty the Queen against Patrick Henry Fox, My Lady.
MR. MYHRE: My Lady, if the court has no issue, the Crown have no issue, and I understand Mr. Sheriff would have no issue, with Mr. Fox sitting at counsel table.
THE COURT: All right. Is that what would you like to do, Mr. Fox?
THE ACCUSED: Yes, My Lady.
THE COURT: All right. That's probably easier for you for making notes and so forth. And I understand there's no difficulty with the sheriffs?
THE SHERIFF: That's fine, My Lady.
THE COURT: All right. Then move forward, Mr. Fox.
MR. MYHRE: My Lady, at the outset, could we address -- I understand Mr. Fox has been having some difficulties at the pretrial centre in terms of preparing his defence and preparing for trial, and so I think we should address that.
THE COURT: All right. Mr. Fox, is this the difficulty you referred to earlier, that you're in segregation and you're not able to get enough access to a computer? Is that the difficulty?
THE ACCUSED: Yes, somewhat. The issue of being in segregation. Specifically with respect to the computer, though, the jail has provided me a laptop for the purpose of accessing my disclosure. One of the problems is in the jail cell, where I'm confined 20 -- well, 24 hours a day minus the time it takes to take a shower, there are no electrical sockets, and so I have absolutely no way of actually using this laptop while I'm in there.
There are some other issues as well, like we're not allowed to have pens in segregation. There's no table in the cells, so even if I was able to use the laptop, it's very awkward and very difficult to take any notes or doing work. I have no access to the telephone.
The staff that works in the segregation unit, sometimes it's very difficult or time-consuming trying to get anything from them. I mean, literally sometimes it takes days of requesting and requesting.
THE COURT: What kinds of things to do you mean?
THE ACCUSED: Well, let's say -- sorry, I'm trying to think of something that would directly relate to my ability to prepare my defence. I'm having difficulty thinking of a specific example of that, but, say, for example, toilet paper or hygiene products, one of the things I've been having difficulty obtaining from them is the forms to purchase telephone time, and that's something that I require in order to prepare my defence because in order to contact my friend in Los Angeles who has been helping me, I would need to purchase phone time. That only goes on to our accounts on Fridays and now that I missed it this week, I would have to wait until next week to be able to contact my friend.
And then, of course, the other issue which doesn't relate to preparing my defence, but it does concern me somewhat, is the ability to appear presentable in court, as I have mentioned before. As you can see, I haven't been able to shave, and I'm afraid that that might give the jury the wrong impression. I don't want them to think that I'm not taking this seriously when I'm showing up every day for this very serious trial, but it doesn't look like I've even put the five minutes in to prepare. In segregation, there's no way to be able to do that. We're not allowed to have razors and there's no mirrors.
Oh, and if it helps at all, I actually have a copy of the segregation order here, which somewhat explains why I was moved to segregation, in case there's maybe some belief or concern that it was because of something that I had done.
THE COURT: Mr. Myhre, have you seen that?
MR. MYHRE: I haven't seen it, My Lady, but Mr. Fox has explained -- I don't need to see it. Mr. Fox, he's explained that it's basically because there's been news coverage and there are concerns by Corrections for his safety.
My Lady, I was going to suggest that at the morning break I get in contact with the warden at the institution and find out whether there is a -- a way of addressing Mr. Fox's concerns. Certainly I accept they're all legitimate.
THE COURT: Would that be a good first step, Mr. Fox?
THE ACCUSED: I believe so, yes.
THE COURT: I would appreciate that, Mr. Myhre. Clearly something needs to be done. I do not wish, and probably don't have the jurisdiction, to interfere with classification decisions made by the warden, and I would generally respect those decisions, but the warden may not be aware of the need, given that Mr. Fox is representing himself, for him to have fairly easy access to the equipment and the materials he needs to prepare his defence and to -- and that means day by day, it can't all be done in advance of a trial, as everybody knows who's participated in a trial. There will be things he'll need to do as we go along.
Is there anything that might assist while you're here in the courthouse, Mr. Fox? Mr. Sheriff, are there shower facilities here, facilities where Mr. Fox could shave, for instance?
THE SHERIFF: Yeah, we do have such facilities downstairs, My Lady. Obviously I'm going to have to go through my sergeant downstairs to see if he can have the permission to do that. I don't see any reason why he wouldn't be able to, but I can't authorize that myself. And if there's anything else, just maybe Mr. Fox can assist with that.
THE COURT: Mr. Fox, would you like to be able to do at lunchtime, say?
THE ACCUSED: Sure, that would definitely be helpful, yes.
THE COURT: And would you like me to say to the jury something about your inability to have shaved and just say that it's because of your circumstances, not because of any wish to appear disrespectful of the court?
THE ACCUSED: I would appreciate that very much.
THE COURT: So shall I do that first thing this morning?
THE ACCUSED: Yes, please.
THE COURT: All right. I was planning in any event to say something short to the jury about the fact that you're representing yourself, which is going to be more of a factor at this stage in the trial than earlier.
THE ACCUSED: Right.
THE COURT: Obviously you were earlier on, but there was also Mr. Lagemaat here, and I was simply planning, and I will say to the jury that they are not to speculate as to why that is and it has absolutely no bearing on anything in the trial, and I can add to it comments about your circumstances have prevented you shaving and dress -- presenting yourself in the way you would like to, and that's out -- out of no disrespect to the court.
THE ACCUSED: Thank you.
THE COURT: All right. Any concerns, Mr. Myhre?
MR. MYHRE: No, My Lady. So I think when the jury comes in the first order of business, according to Madam Registrar, we need to sort out some of the exhibits. We'll just make sure they're marked properly.
THE COURT: All right.
MR. MYHRE: My Lady, the second order of business after you give your instruction.
THE COURT: I understand from Madam Registrar that the defence binder didn't get marked. I thought it had been marked as Exhibit 2, but apparently it's not marked.
MR. MYHRE: I missed that, too.
THE COURT: I'm sorry?
MR. MYHRE: I missed that as well.
THE COURT: All right. So it obviously needs to be marked, and so what's its number going to be? We'll do it when the jury's here.
THE CLERK: Exhibit 6, My Lady.
THE COURT: All right. So it will be --
THE CLERK: The two I have is a three-page document, the birth -- certification of birth.
THE COURT: Yes. All right. Now, what about are there any other exhibits that should have been marked and weren't?
THE CLERK: No, just this one, My Lady.
MR. MYHRE: As long as we caught the three that came up in re-exam.
THE COURT: I think we have Exhibit 4 -- 3 --
THE CLERK: 4 and 5.
THE COURT: -- 4 and --
THE CLERK: 3 and 4 are email chains, and 5 is a printout of all the emails.
THE COURT: Yes.
MR. MYHRE: And I do have more copies of that one exhibit.
THE COURT: All right. Thank you. Anything else we should address before the jury comes in?
THE ACCUSED: Not from me.
THE COURT: All right. Now, Mr. Fox, you know about the next witness, the audio-recording is going to be played, so that will be some hours, I understand, and after that, you'll have an opportunity to cross-examine the witness. Mr. Fox, you're aware of what that involves and do you need -- do you have any questions about that?
THE ACCUSED: No. No, I'm pretty clear on what that will involve, and I don't anticipate that there would be much cross-examination required of Constable Potts.
THE COURT: All right. Thank you.
MR. MYHRE: My Lady, I should add with regards to that statement, there are a couple blank sections as they're in our -- I would be proposing to just fast-forward through those. It will be clear from the transcript that we won't have missed anything, but there's one 25-minute portion, it's just blank space or silence; there's another 2-minute portion where Mr. Fox is using the washroom, I think we could probably skip over that; and then there's another roughly 10-minute portion towards the end.
THE COURT: All right. Do you agree to that?
THE ACCUSED: Yes.
THE COURT: All right. All right. Could we have the jury, please?
THE SHERIFF: Yes, My Lady.
The jury, My Lady.
(JURY IN)
THE COURT: Good morning. Members of the jury, before we start with the next witness, I'd like to say something to you about the fact that, as I mentioned at the start of the trial, Mr. Fox is representing himself during this trial. He is conducting his own defence, except that, as you saw, Mr. Lagemaat conducted the defence cross-examination of Ms. Capuano. That cross-examination of Ms. Capuano's evidence is now complete and Mr. Lagemaat will have no further involvement in the trial.
Do not try to guess why Mr. Fox does not have a lawyer. The fact that Mr. Fox is not represented by a lawyer has nothing to do with your decision in this case. It is not evidence for you to consider in reaching your verdict. Take nothing from it, nothing at all one way or another.
The other thing I will say is that, as you may have noticed, today and previous days Mr. Fox has been unable to shave and unable to present himself in the way he would like. This is because of his circumstances, it has nothing to do with any disrespect for the court, and steps are being taken to allow Mr. Fox to present himself more in the way he would like as we go on in this trial.
There is a housekeeping matter. We -- counsel and Mr. Fox realized, and Madam Registrar, the defence binder that you were given, the black binder, was never marked as an exhibit. It should have been, I thought it had been, but it wasn't. That's my oversight. So we need to mark that as an exhibit and it will be Exhibit 6. I may have referred to it once or twice as Exhibit 2. That's my error, and if I did, please make the mental correction and call it Exhibit 6.
EXHIBIT 6: Binder containing printouts of
emails from Desiree Capuano from 2015/2016
THE COURT: I think -- and you'll see Mr. Fox is now sitting at counsel table, where he will more easily be able to conduct his defence.
MR. MYHRE: My Lady, just to follow up on yesterday, I was short with one of the emails and so if I could give these to Mr. Sheriff to hand up if any of the jury members didn't get them. That was the one email dated April 20th, 2015, from Ms. Capuano to Mr. Fox.
My Lady, it's the Crown's intention to spend most of the morning playing an audio-recorded statement Mr. Fox gave to police and so the Crown's next witness is Constable Jason Potts.
THE COURT: Mr. Myhre, I will say something to the jury about audio recordings. I can do that when we get to that point or...
JASON POTTS
a witness called for the
Crown, sworn.
THE CLERK: Please state your full name and spell your last name for the record.
AJason Robert Potts, P-o-t-t-s.
THE COURT: Thank you. You may be seated if you'd like.
EXAMINATION IN CHIEF BY MR. MYHRE:
QConstable Potts, you are a member of the Burnaby RCMP?
AThat is correct.
QAnd you have been for the last seven years?
ACorrect.
QAnd you're on a specific team that is charged with interviewing suspects?
ACorrect.
QHow long have you been with that unit?
AI've been with that unit for three years.
QI understand that on June the 16th, 2016, you were tasked with interviewing a man you were -- you knew as Patrick Fox in relation to a complaint of harassment?
ACorrect.
QAnd you had roughly a three-hour interview with Mr. Fox?
ACorrect.
QThat video was -- or that interview was video and audiotaped?
ACorrect.
QAnd you subsequently learned that the audio on the videotape was of very poor quality?
ACorrect.
QAnd you've reviewed a transcript that was prepared of the audio-recording?
AYes, I have.
QAnd you also referred to -- during the course of that interview, you referred to a few different documents. You showed them to Mr. Fox and they were discussed?
AThat's correct.
QI see that you have a book in front of you that's titled "Statement of Patrick Fox, June 16th, 2016," and you also have a stapled set of documents?
ACorrect.
QAnd that stapled set of documents are the documents that you showed to Mr. Fox during the interview?
AThat's correct.
MR. MYHRE: My Lady, could we hand copies of these two things to members of the jury? And we'll be asking they be marked at the end of the statement.
THE COURT: All right. And we'll deal with whether they become exhibits or not at the end of the statement.
MR. MYHRE: Thank you.
THE COURT: Is there one for me, please? Thank you.
MR. MYHRE: Thank you.
THE SHERIFF: We're short one, counsel, of the statement.
MR. MYHRE:
QConstable Potts, we're going to play the audio-recording right now, and I would ask that when we come to a point where you are showing a document to Mr. Fox, that you just signal me, I'll stop the audio, and you can tell us which document is being referred to.
ASure. That's sounds fine.
THE COURT: Mr. Myhre, before you play the audio, I will say something to the jury about how to deal with audio recordings as evidence.
So you're about to hear an audio-recording of, the Crown says, Mr. Fox speaking with Constable Potts. Please listen to it very carefully. You now each have a transcript of the audio-recording. The transcript is just an aid to help you follow the recording as it's played. The transcript is not evidence; only the audio-recording itself will be evidence. If you -- if what you read on the transcript differs from what you hear on the audio-recording, you are to go by what you hear for yourself and not what you read in the transcript. And if the speakers you hear are different from those identified in the transcript, it's for you to decide who is speaking and what is said. You decide this from what you hear on the recording and any other evidence that is given in the trial about the identity of the speakers.
The audio-recording, assuming it's ultimately marked as an exhibit, will be available to you in the jury room, where you may listen to it if you need to during your deliberations. It will be up to you to decide whether or how often you want to listen to it or to any part of it again. You may listen to it as many times as you wish to help you determine who is speaking and what they are saying.
You may also take the transcript with you to the jury room for your deliberations to help you determine what is actually on the audio-recording, but remember that if you find any differences between the audio-recording and the transcript, you must rely on what you hear on the audio-recording rather than what you see in the transcript.
In listening to the audio-recording, be careful to distinguish between what Mr. Fox says and what Constable Potts or anyone else on the audio-recording are saying. What other people say -- what Constable Potts or what other people say might help you figure out what Mr. Fox says and what his words mean, but Mr. Fox can be held responsible only for what he actually says, not for what others say. It's only what Mr. Fox said that is evidence concerning Mr. Fox. So what others say may provide a context for understanding what Mr. Fox says, but only Mr. Fox's words as understood in that context are evidence of what Mr. Fox has done or intended to do.
So that's my direction on audio recordings. I will say something similar in the instructions that I give you at the end of the trial, just to remind you of this. Thank you for your attention to that and we can go on, Mr. Myhre.
MR. MYHRE:
QAnd that vein of Your Ladyship's instruction, Constable Potts, there are some things that you say in this interview that are not necessarily your personal views, you say them as part of your job as an interviewer?
AThat's correct.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
MR. MYHRE: Pardon me, My Lady, I did not reset that.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
MR. MYHRE: My Lady, there's about a two-minute silence here, so I'm just going to bump the audio- recording ahead.
THE COURT: Right. Agreed, Mr. Fox?
THE ACCUSED: Yes.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
MR. MYHRE: My Lady, I just note the time. I wonder if this might be a good time for the break.
THE COURT: All right, we'll take the break, members of the jury.
(JURY OUT)
THE COURT: All right. Thank you.
THE CLERK: Order in court. This court stands adjourned for the morning recess.
MR. MYHRE: My Lady, there's something the Crown should alert you to that's coming in this statement and I just want to canvass it. I don't think there are any concerns. But later on in the statement Constable Potts arrests Mr. Fox for the offence of exporting firearms to the United States for which he's not charged on the indictment before the jury. I -- it doesn't seem to me that there would be any prejudice flowing from that. It should be obvious to the jury what he's charged with. Maybe that would warrant a mention in the charge to the jury, but I -- I just raise it just in case Mr. Fox has any concern about it.
THE COURT: Is -- does that relate to the events that are charged in Count 2?
MR. MYHRE: Yes.
THE COURT: So the issue is simply that the arrest is for a different offence than the one we now see, but in relation to the same events, is -- and the different offence is probably a more serious one, is it?
MR. MYHRE: It is, yes. I mean, I'm not sure that would be intuitive to a jury member, but when you look at it there is a three-year minimum for exporting firearms, there's no minimum for a s. 93.
THE ACCUSED: Although, to clarify, the RCMP first charged me with s. 1(4), unlawful exportation of firearms. The Crown then changed it to unlawful exportation of firearm knowing it to be unlawful. That's the one that has the minimum three years.
THE COURT: Can I perhaps just tell the jury that this is going to happen and it's simply that the offence that Constable Potts made the arrest for is a different one from the one we see on the indictment, but it relates to the same events that are alleged in the offence we see in the indictment? Would that be a fair way of dealing with that?
THE ACCUSED: I'm okay with it. I have no opposition to the statement being put in because I assume I'm going to be able to cross-examine Constable Potts on it afterwards.
THE COURT: Yes.
MR. MYHRE: I'm content with that.
THE COURT: Do I -- is it preferable that I say something or nothing?
MR. MYHRE: I actually think nothing needs to be said, but --
THE COURT: All right. Do you --
MR. MYHRE: -- unless Mr. Fox has a concern.
THE COURT: Do you agree, Mr. Fox?
THE ACCUSED: I agree.
THE COURT: All right. Then I will say nothing. Thank you for alerting me to it, though. All right.
THE CLERK: Order in court. This court stands adjourned for the morning recess.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED FOR MORNING RECESS)
(PROCEEDINGS RECONVENED)
JASON POTTS, recalled.
MR. MYHRE: We're ready to go.
THE COURT: Please.
THE ACCUSED: Okay. Thank you. Okay.
THE SHERIFF: The jury, My Lady.
(JURY IN)
MR. MYHRE: And, My Lady, I'll pick up just where we left off.
THE COURT: Thank you.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
MR. MYHRE: My Lady, I note the time.
THE COURT: All right. We'll take the lunch break, then, thank you, members of the jury.
(JURY OUT)
THE COURT: Is there anything we need to address before the lunch hour?
MR. MYHRE: No, My Lady.
THE COURT: Good. Thank you.
THE CLERK: Order in court. This court stands adjourned till two o'clock p.m.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED FOR NOON RECESS)
(PROCEEDINGS RECONVENED)
JASON POTTS, recalled.
MR. MYHRE: My Lady, I was just letting Mr. Fox know I did speak with one of the assistant wardens with North Fraser and there are going to -- going to put him in isolation this weekend and have a discussion with him about protective custody, so I set out what Mr. Fox's concerns were and I take it those are options for addressing his concerns.
THE ACCUSED: It's my understanding from what I know of the isolation custody that that should address those issues.
THE COURT: All right. Thank you for doing that, Mr. Myhre, and I hope that works out satisfactorily so that you can prepare your defence as you need to do, or in the way that you need to do it. Mr. Fox, if you have any further difficulties, then please raise them and I'll -- I'll deal with them in the best way I can.
THE ACCUSED: Thank you.
THE COURT: All right. Thank you.
MR. MYHRE: Otherwise ready, My Lady.
THE COURT: All right. Please.
THE SHERIFF: The jury, My Lady.
(JURY IN)
MR. MYHRE: So, My Lady, I'll just be continuing on, and I think we were at page 58 of the transcript.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
EXAMINATION IN CHIEF BY MR. MYHRE, CONTINUING:
QI'm just going to stop there. Constable Potts, are you referring to one of these documents right at this spot in the interview?
AYes, the first page on that three-page -- the email there.
QThe email from Desiree Capuano to Jean-Phillipe Dupont?
ACorrect.
QThank you.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
MR. MYHRE:
QAnd, Constable, are you referring to another document at this point?
AYeah, to page 2. It's -- it's like a -- it's a screenshot from the website. It's got a photo of James Pendleton underneath.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
MR. MYHRE: So, My Lady, I'm just going to advance now to line 1682 of the transcript. It's about a 10-minute period I understand there's nothing that happens.
THE COURT: All right.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
MR. MYHRE: So, My Lady, I'm just going to skip ahead. There's another blank section and I'm going to skip ahead to line 1790 of the transcript where Constable Potts comes back into the room.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
MR. MYHRE: And, My Lady, I'm just going to advance to the next line in the transcript. It's approximately seven minutes on the audio.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
MR. MYHRE: My Lady, I do note the time. There are six minutes left in this statement. I probably have one or two minutes with questions for Constable Potts after that.
THE COURT: Shall we just continue on? All right, please.
(AUDIO/VIDEO BEING PLAYED)
(AUDIO/VIDEO STOPPED)
MR. MYHRE:
QSo, Constable Potts, the third page of the three stapled documents I handed you, did you actually show those to Mr. Fox during the interview?
AYeah. I think it was just -- it was in my hand and he could have seen it at some point, and our training is anything that, you know, could have been in view we need to lodge as an exhibit.
QI see. So you don't remember specifically discussing it?
AI don't recall.
QDid that audio accurately capture your interview with Mr. Fox?
AYes, it did.
QOkay. And would you recognize Mr. Fox if you saw him again?
AI would.
QDo you see him here in the courtroom?
AYes, I do.
QWhat's he wearing, please?
AHe's wearing an orange sweater, glasses.
QThe person on my left?
AYes.
MR. MYHRE: My Lady, could we mark the CD as an exhibit, please?
THE COURT: All right. The CD or the audio-recording will be the next exhibit.
THE CLERK: It's Exhibit 7, My Lady.
MR. MYHRE: Madam Registrar, I apologize, I don't have a sleeve.
EXHIBIT 7: DVD containing recorded statement
of Patrick Fox given to Jason Potts on
June 16, 2016
MR. MYHRE: Could we mark the transcript as well, please, My Lady, and the three stapled documents?
THE COURT: All right. Transcript, Exhibit 8.
EXHIBIT 8: Binder titled "Statement of
Patrick Fox, June 16, 2016"
THE COURT: And the three stapled documents together, Exhibit 9.
EXHIBIT 9: Documents shown to Patrick Fox
during interview on June 16, 2016
MR. MYHRE: Those are all my questions for Constable Potts.
THE COURT: All right. Thank you, Crown. So, the jury, we'll take the afternoon break now. Thank you.
(JURY OUT)
THE COURT: Mr. Fox, do you have questions or concerns about the cross-examination? And I can ask Constable Potts to leave the courtroom if you do.
THE ACCUSED: No, I don't.
THE COURT: All right.
THE ACCUSED: I do have a few questions to ask him afterwards, though.
THE COURT: In cross-examination?
THE ACCUSED: Yeah.
THE COURT: All right. Thank you. We'll take the afternoon break.
THE CLERK: Order in court. This court stands adjourned for the afternoon recess.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)
(PROCEEDINGS RECONVENED)
JASON POTTS, recalled.
THE COURT: Are you ready, Mr. Fox?
THE ACCUSED: I'm ready, yes.
THE COURT: Right. Please.
THE SHERIFF: The jury, My Lady.
(JURY IN)
CROSS-EXAMINATION BY THE ACCUSED:
QConstable Potts, during the interview that we just listened to, there was a statement made by myself that I had sent my firearms or moved my firearms to the United States, right, and that led to you arresting me for s. 104, unlawful exportation of firearms; is that correct?
ACorrect.
QDo you know whatever became of that charge?
AI was advised by Crown that at some point the charge is stayed.
QOkay. So it's no longer being prosecuted, right? I mean, there was never a finding of guilt, the charges just went away, is that fair?
AThat's what I'm led to believe.
QNow, you had -- you had asked in the interview if there would be anything in my computers or on my phone, etc., that the RCMP's techie guys might be able to find that would suggest that I was planning on or that I was going to Arizona?
AI said that, correct.
QSomething to that effect anyway, right. Do you know was any such evidence or anything indicative of that at all found?
AI couldn't say because my role --
QRight.
A-- was just to interview.
QOkay.
AI had passed on the information to the lead investigator and didn't follow up on this file afterwards.
QOkay. So I'll take that as a no, then, because I was asking if you know of any?
AI don't of any.
QOkay. And, I'm sorry, how long did you say that you've been in law enforcement?
AEight years --
QOkay.
A-- at this point.
QDuring that time, you've conducted some number, I'm sure, of interviews with suspects?
AMany. Very many.
QAnd would you say that you're fairly adept at identifying or telling when somebody is lying or withholding information, I mean, just in your own opinion, your perception of yourself?
THE COURT: Now, Mr. --
THE ACCUSED: Sorry.
THE COURT: -- Fox, I should make sure you realize that questions to witnesses about whether somebody is, in their opinion, telling the truth are not allowed because often it's for the jury to make that determination.
THE ACCUSED: Right.
THE COURT: So we don't rely on witnesses to give opinions about people's truthfulness. I don't know if that's where you're going, but just keep that in mind.
THE ACCUSED:
QDo you have any training in the area of conducting interrogations?
AYes.
QOkay. And during the course of this interview that we had just listened to, did you at any point have the impression that I was being deceitful and misleading, withholding information or lying about any --
THE COURT: Now, that's going to be the same problem, Mr. Fox.
THE ACCUSED: Okay, thanks. That's all the questions I have.
THE COURT: Thank you. Mr. Myhre?
MR. MYHRE: Nothing, My Lady.
THE COURT: Thank you very much --
AThank you, My Lady.
THE COURT: -- Constable Potts.
(WITNESS EXCUSED)
MR. MYHRE: My Lady, the Crown doesn't have any more witnesses to call today. We've got three for Monday morning, the final three Crown witnesses.
THE COURT: All right. Members of the jury, I'm going to ask you to go to the jury room for just a few minutes and then we'll resume, please.
(JURY OUT)
THE COURT: Since we're obviously nearing the end of the Crown's case, I thought we should have a quick discussion about scheduling so that I can give the jury a rough idea of what to expect, if it's appropriate to do so.
Mr. Myhre, I can't recall offhand how long these three witnesses are expected to be.
MR. MYHRE: I'm fairly comfortable they'll be done in the morning on Monday, My Lady. The Crown will also be tendering one admission as well as two affidavits under the Canada Evidence Act, but that's the kind of thing that will only take a few minutes.
THE COURT: All right. And has Mr. Fox seen those affidavits?
MR. MYHRE: Yes, and --
THE ACCUSED: I have.
THE COURT: There's no issue about them going in? All right.
MR. MYHRE: My Lady, just on that subject, I don't know, in a jury trial, should they each be getting a copy of those things? It doesn't really seem to me that they need them.
THE COURT: What's -- what's in the -- what -- what do they deal with?
MR. MYHRE: Whether Mr. Fox had a licence and what that licence allowed, whether he possessed firearms and the nature of those firearms.
THE COURT: How long are the affidavits?
MR. MYHRE: I think one is two pages and one is four pages. Really all they say is a fact that I don't think is a big issue in this trial, which is that Mr. Fox had his licence, it had certain restrictions and --
THE COURT: Does it set out the restrictions?
MR. MYHRE: One of the documents does, yes.
THE COURT: That might be useful for them to have.
MR. MYHRE: I do -- I can certainly make copies.
THE COURT: I'm just thinking that -- whether there's defence evidence or not, it might be useful for them to have that in following what then follows in the trial to know what the restriction is and isn't, so I would suggest perhaps those could be copied, unless there's a reason -- Mr. Fox, unless you have some objection to the jury having copies of them?
THE ACCUSED: No, no, I have no objection to that at all. I'm -- I'm just -- I'm just thinking, though, I don't believe it's actually restrictions because, by default, a person is not permitted to transport their firearms anywhere unless their ATT authorizes explicitly. I'll -- I'll review it and -- over the weekend.
THE COURT: All right. Mr. Fox, I've said this a number of times, that you don't have an obligation to indicate whether you're calling a defence or not, in the sense of either giving evidence yourself or calling witnesses, but you have told me on previous occasions that you do expect to testify. Is -- did I get that right and is that still the case or do you wish to reserve your right to make that decision when we get to the end of the Crown's case?
THE ACCUSED: Previously I was intending to testify. That had a lot to do, though, with my concerns about the 486.3 appointment. Those concerns no longer exist and so at this point I don't believe that it's going to be necessary for me to testify. I was very happy with Mr. Lagemaat's performance and there was no evidence that I was adamant about putting before the jury that he refused -- or that didn't get put before the jury, which is why I was going to testify.
THE COURT: I see.
THE ACCUSED: Given my experience, I'm sorry, with Mr. Hawkins and Mr. [indiscernible]] previously in this case.
THE COURT: All right. Now, the decision whether or not to testify is probably one of the most important decisions that an accused person makes in a trial. Is it a decision that you would like some assistance with from a defence counsel?
THE ACCUSED: I had spoken briefly with counsel about it and purely by coincident, I suppose, the statement which was just played for the jury, in my opinion, provided the opportunity for me to be able to provide my story or my side of the story to the jury, while at the same time not subjecting me to cross-examination, so --
THE COURT: You don't have to tell me your --
THE ACCUSED: Sure.
THE COURT: -- your considerations, but --
THE ACCUSED: Right.
THE COURT: -- what I want you to understand is that if you need a short period of time to get some legal advice to assist you with that decision, I would consider giving you that short period of time.
THE ACCUSED: Okay. Thank you.
THE COURT: And if you're at a loss about how you would go about getting legal advice, then I may be able to assist with some suggestions. So you can either let me know that now or on Monday.
THE ACCUSED: Okay. I don't believe so, that that will be necessary, because at this point I do not intend to testify.
THE COURT: But if you wish time to get some legal advice to help you determine whether that decision is in your best interests or not, I'll consider -- I would likely give you a short period of time to get that legal advice and make sure that you have avenue you can pursue. So just be aware of that.
THE ACCUSED: Thank you.
THE COURT: So that discussion, I think, ends up in a place in which the scheduling next week is a little bit uncertain, which is fine, that's often the case. I simply wondered whether we could tell the jury that there's no possibility they would be deliberating next week, but obviously that's not the case, there is a possibility they'll be deliberating next week.
THE ACCUSED: It's my opinion that there's a very strong possibility that they will be deliberating next week. There are some witnesses that I am considering still calling, but even those I am not sure are going to be necessary at this point. I mean, it's entirely possible and entirely fathomable to me at this point that we might just finish with the Crown's case next week and that I won't call any evidence.
THE COURT: All right. Subject to anything either you, Mr. Fox, or you, Mr. Myhre, might -- further might have to add, I will ask the jury to come back in, I'll excuse them for the day, I'll tell them that our schedule next week is uncertain, and that I'll be able to tell them more either on Monday or on Tuesday. I think that's the best I can do as far as giving them any certainty. I will say perhaps that the case is moving more quickly than we were expecting. Is that fair?
MR. MYHRE: Yes. My Lady, could I canvass one other --
THE COURT: Yes.
MR. MYHRE: -- logistical issue with evidence on Monday? I am -- I would like to put the witness Manvir Mangat on the stand first because he's a -- a --
THE COURT: Can we deal with this after I talk to the jury? Does it affect the overall timing in any way?
MR. MYHRE: No, it doesn't.
THE COURT: All right. So could the jury come back in?
THE SHERIFF: The jury, My Lady.
(JURY IN)
THE COURT: Thank you. Please have a seat. Members of the jury, I would like to try and give you the best estimate as possible about our timing in this case. There are still some uncertainties in our timing as we go forward, but what I can tell you is that we are moving more quickly than was estimated when this trial was scheduled.
I think it will be on either Monday or Tuesday that I will be able to give you a much more precise estimate of roughly when it is that you would be starting your deliberations, but it would be foolish of me to try to give you that estimate now. I think we need to go a little further in the case and then I'll be able to give you a better estimate.
So I will excuse you for the day now, ask you all to be back and ready Monday morning, the usual time, and thank you for your careful attention all through the week this first week. Thank you very much.
(JURY OUT)
MR. MYHRE: The second witness is the -- on Monday is the ATF agent, Frank Spizuoco, and Agent Spizuoco took pictures of some boxes that he opened down in California, and so we have a book of those documents. I would -- just want to canvass the fact that I want to show Manvir Mangat the first two or three pages of that book, and so what I would like to do is have those pictures just marked as an exhibit for identification in the morning and then I can show them to Mr. Mangat, ask him to look at the first three pages, and then the exhibit will be fully identified by Agent Spizuoco, who comes after. I just wanted to canvass that in case there was any issue with proceeding in that way with those photos.
THE COURT: All right.
THE ACCUSED: I have no objection.
THE COURT: Thank you, Mr. Fox. It's not an unusual way to proceed, and what we often do in that situation is mark the exhibit for identification when it's shown to the first witness who didn't actually take the photographs, but is being asked to comment on them in some way, and then when the second witness comes who actually took the photographs and can testify about taking them and can authenticate them, then, assuming that's all done satisfactorily, then the thing becomes an exhibit. All right.
Now, just looking ahead again, Mr. Fox, if you do decide to call evidence, you are entitled to make an opening address to the jury, and as I'm sure you've read in the various materials you've been given or looked at, that's not an opportunity to argue the case, your opportunity to argue the case comes at the very end in your closing address. It's -- the opening address is your opportunity to simply give the jury an overview of what you expect the evidence to be that you're planning on calling.
So you might want to think about preparing such an opening if you wish to give one. That's only if you're calling evidence. If you're not calling evidence, then the next step would be that we go to closing addresses. And let's assume that we do finish the three Crown witnesses by lunchtime on Monday. I would definitely not see forcing things on to do closing addresses on Monday afternoon. I would imagine that both you and Mr. Myhre would need some time to repair those closing addresses, and we -- I suppose we could talk now about roughly how much time you think you would need, or we can do that once we get to that stage.
There is another stage that probably hasn't been developed very much in the materials you've looked at. Have a seat, Mr. Fox. You don't need to be standing up all the time. But thank you. And that is that, as you know, at the very end of the trial I give instructions to the jury and they are quite detailed, and it's my practice and the practice of many judges these days to give a written version of the instructions in the same way I did with the opening instructions so that the jury can read along, and it's my practice to give a draft of those instructions to both sides, Mr. Myhre, and to you, Mr. Fox, enough in advance that you have an opportunity to read them and make comments and suggestions, and there may, indeed, be entire areas of the instructions that either should not be included at all or additional subjects that should be included for instruction types of evidence, for instance. In those instructions, too, I will summarize the position of the Crown and -- and of -- the position of the defence as best I understand it, and it's very helpful to me to have each of you review my summary to make sure that it accurately captures the position you wish put before the jury.
So all of that is to say that it's a process that does take some time and we need to build that into the schedule and make sure that you have time to review what I've drafted and that we have time for discussion of the charge and for me to make any revisions that need to be made, and I'm sure there will be many.
Does that give rise to any questions? Mr. Fox, any concerns?
THE ACCUSED: No. No, My Lady.
THE COURT: All right. Mr. Myhre?
MR. MYHRE: My Lady, I'm just trying to think through what the timeline might be, then, next week. In the event Mr. Fox decided not to call evidence, we would be standing down for the rest of the day, and then would the expectation be that we would make our closing arguments on Tuesday? The only difficulty I see with that is it would be helpful to have a draft of the charge before we make our closing addresses, so maybe Tuesday could be a day to talk about draft charge and Wednesday a day for closing.
THE COURT: That might make sense if that's a schedule that Mr. Fox can manage.
THE ACCUSED: I believe that I can. Sorry --
THE COURT: All right.
THE ACCUSED: -- it's the first time going through it so I have no point of reference.
THE COURT: And what -- and this is all assuming there is no defence evidence, and obviously things will have to change if there is defence evidence, but what we might do is use some time on Monday afternoon to talk about things that either should or should not be in the charge, the elements of the offence that the Crown's relying on and not relying on and that type of thing. That would be helpful to me before I finish a draft that I then give you.
All right. Anything else? Thank you very much. We'll adjourn.
THE CLERK: Order in court. This court stands adjourned until Monday morning at 10:00 a.m.
(PROCEEDINGS ADJOURNED TO JUNE 19, 2017, AT 10:00 A.M.)
Transcriber: S. Lotz