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R. v. Patrick Fox - Trial Transcripts

Highlighting Legend
Perjurious testimony which defense counsel (Tony Lagemaat) and Crown Counsel (Mark Myhre) knew of
Critical statements - e.g. inciminating admissions
Statements of interest - e.g. testimony which Lagemaat should have known to pursue further or cross examine on, but didn't
Click on any highlighted text to display the associated comments/annotations.
27178
Vancouver Registry
In the Supreme Court of British Columbia
(BEFORE THE HONOURABLE MADAM JUSTICE HOLMES AND JURY)
Vancouver, B.C.
June 20, 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 20, 2017
REGINA

v.

PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
COPY
BAN ON PUBLICATION - INHERENT JURISDICTION
  • Crown Counsel:M. Myhre
  • Appearing on his own behalf by videoconference:P. Fox
J.C. WordAssist Ltd. (Vancouver)
Suite 614 - 808 Nelson Street, Vancouver, B.C. V6Z 2H2
Phone 604-669-6550

INDEX

  • SUBMISSIONS RE FIREARMS FOR CROWN BY MR. MYHRE:1
  • SUBMISSIONS RE FIREARMS FOR ACCUSED BY PATRICK FOX:8

EXHIBITS

  • Nil

RULINGS

  • [RULING RE FIREARMS ACT]11
(Jury Out)
Proceedings

BAN ON PUBLICATION - INHERENT JURISDICTION


Vancouver, B.C.
June 20, 2017
(JURY OUT)
(VIDEOCONFERENCE COMMENCES)
(THE ACCUSED IN REMOTE LOCATION)

THE CLERK: The Supreme Court of British Columbia, at Vancouver, this 20th day of June, 2017, recalling the matter of Her Majesty the Queen against Patrick Henry Fox, My Lady.
THE COURT: Yes. Mr. Fox can you hear me?
THE ACCUSED: Yes, I can; thank you.
THE COURT: Thank you. Mr. Sheriff, I don't think we need you unless you wish to be here, but --
THE SHERIFF: I'll [indiscernible/not at microphone].
THE COURT: -- it's up to you.
THE COURT: Thank you.
THE COURT: All right.
MR. MYHRE: My Lady, I believe the main purpose of being here right now is to address the issue of whether transport contemplates transportation by third parties or whether it's just by the individual licence holder.
THE COURT: Yes.
MR. MYHRE: And so I have submissions prepared on that. Mr. Fox, did you receive my materials a few hours ago?
THE ACCUSED: I did. Not a few hours ago, but I did receive them. I've had a chance to skim through them.
SUBMISSIONS RE FIREARMS FOR CROWN BY MR. MYHRE:
MR. MYHRE: So My Lady, I sent Mr. Fox everything I'll -- I'll be referring Your Honour to and I told him which paragraphs of the cases I would specifically be referring to or relying on.
So my submission is essentially this: That when you consider the purpose and the scheme of the Firearms Act, it's quite clear that transport refers to transport in the personal possession of the licence holder.
So this begins with the basic principles of statutory interpretation. The words of an Act are to be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
I did look up the Oxford Dictionary definition of transport. It doesn't really assist, but it simply says, "take or carry from one place to another". The purpose of the Firearms Act was considered in -- of course, the reference Re: Firearms Act, first case I've handed up. And I've highlighted the two portions that I say are particularly relevant here on paragraphs -- page eight, paragraph 20.
So broadly the purpose the government had was to promote public safety. And over the page at paragraph 21, the court considers a number of the problems the Act was meant to address. And the first one they list, they list several. One is the illegal trade in guns both within Canada and across the border with the United States.
I've handed up the case Cancade because it deals, generally, with the interpretations of terms within the Firearms Act -- or sorry, related to firearms charges. And so this -- Cancade was a case in which somebody had been mailed some parts that were, as they stood, illegal; but could be modified, and they were intended to be modified by the recipient to become legal. And the court -- that particular definition doesn't have application here, but the general principles they apply to the interpretation do.
So paragraph 18, the court sets out the appellant and respondent positions and I've highlighted the respondent's position because that's what is adopted by the court later on. The appropriate -- the respondent says:
...the appropriate methodology in construing this legislation is to take a purposive approach, having regard to the circumstance that this firearms legislation is to be broadly construed because of the obvious intent of Parliament to keep dangerous high capacity weapons out of public circulation.
And so because of that, they didn't take a really -- the most restrictive view possible of the term that was being considered. And that I've highlighted one of relevant paragraphs from the Supreme Court of Canada judgment relied on, and then over at paragraph 22 where the court adopts that line of reasoning.
So if I could take Your Ladyship to the provisions of the Act --
THE COURT: All right.
MR. MYHRE: -- that I say show that what's meant is individual personal possession, and I've just provided the table of contents because it's certainly not my intention to cherry pick provisions here, but, of course, I did only print out the provisions I thought had some bearing on our inquiry.
But if I could take you to the first actual bit of legislation on the fourth page; the s. 4 of the purpose of the Act. So under s. (ii), the purpose of the Act is to provide licences and authorizations under which persons may possess restricted weapons, et cetera, et cetera, in circumstances that would otherwise constitution an offence under ss. 93.
THE COURT: So in 4(a) --
MR. MYHRE: Two.
THE COURT: -- Roman Numeral ii; little Roman numeral ii.
MR. MYHRE: Yeah; it deals with the exact circumstance we're talking about here. And what you'll see later on in the Act is the default position is the holder of a licence is allowed to have it in their home, and anything beyond that has to be explicitly provided for.
THE COURT: All right.
MR. MYHRE: Over the page, s. 5; what's contemplated is -- and this is so simple I -- but anyway. It's a person who holds a licence.
THE COURT: Well, in the Federal statutory scheme, a person doesn't mean "individual". Person includes a corporation. It -- are make -- trying to make the submission that that means an individual?
MR. MYHRE: It certainly seemed to me that that made sense.
THE COURT: Well, I'm not sure that's -- I'd need to hear more from you because the entire Criminal Code is premised on the understanding of a person as including an individual, a corporation, an unincorporated association; think of the United Nurses Association case.
MR. MYHRE: So, My Lady, what -- the other things you'll see in the Firearms Act is they contemplate specific criteria for when a person can hold a licence.
THE COURT: Well -- and look, s. 19, for example, that's talking about an individual. So there -- even within the extracts you've given me from the Act, there appears to be two different usages; one of a person, one of individual. And presumably, there is a reason for the difference.
MR. MYHRE: Well, if you look -- if you keep going in sub -- in s. 5(2), in determining whether a person is eligible, et cetera, et cetera; the firearms -- Chief Firearms Officer should have regard to whether a person has been treated for a mental illness; has a history of behaviour that includes violence.
THE COURT: That doesn't mean that no -- no entity can be person unless they're capable of -- well, anyway, I think if your submission rests on the fact that "person" is used in s. 5, then you've got a problem.
MR. MYHRE: It -- well, it's considering all the -- all the sections that I've handed up to Your Ladyship. So we could move on to the next ones.
Section 13, again, contemplates a person holding a registration certificate.
And then s. 17 is the default position that I mentioned.
So subject to ss. 19 and 20, a restrictive firearms, the holder of the registration for which is an individual may be --
THE COURT: Sorry, just back to s. 13. Is that engaged here? Is it the Crown's position that Mr. Fox had such a licence authorizing him to possess that type of firearm?
MR. MYHRE: He did; yes.
THE COURT: All right. And then we go to...?
MR. MYHRE: Section 17. So the default position; a restricted firearm "may be possessed only at the dwelling house of the individual".
THE COURT: Well, that's interesting actually. That is starting to narrow the analysis to an individual. So it's -- appears to be saying that, whereas in the previous section, it's a person that the statute is speaking about, now in s. 17, we're looking at a sit -- a subset in which the holder is an individual. That's how I read that. Is that how you read that, Mr. Myhre?
MR. MYHRE: Well, I think Your Ladyship has just picked up on something that I didn't pick up on, which is the difference in using the terms individual and person. So it -- I mean, I didn't realize that, but it makes sense to me.
THE COURT: So in s. 17 where the holder of the registration certificate is an individual, the firearm may possess -- be possessed only at the dwelling house of the individual, or a place authorized by a Chief Firearms Officer. Is that how you're reading that?
MR. MYHRE: Yes. So I include s. 19 because it's referred to in s. 17; but if I could take Your Ladyship to s. 19(2.1). So:
... an individual who holds a licence authorizing the individual to possess ... restricted firearms must, if the licence is renewed, be authorized to transport them within the individual’s province of residence...
To the five listed locations. And then at s. (e), we see the one that's potentially in contention here.
And My Lady, when you're thinking about the purpose of this Act and how to interpret these provisions, in my submission, the restrictions set out in s. (e) has a pretty clear intention. It specifies port of exit so that the person who is carrying -- the individual who is carrying the firearm with them will go through customs, will declare their firearm, and will give the border personnel the opportunity to decide whether they are appropriately allowed into their country, and that's particularly germane here because that's exactly what --
THE COURT: Well, how do we know that's the purpose? Maybe the purpose is just to recognize the jurisdictional limitations of the Act, that it extends only to the border.
MR. MYHRE: Well, if one of the purposes of the Act is to combat smuggling, then of course, we need to know when firearms are going back and forth across the border. And that can't be done unless the person actually uses a port of exit.
THE COURT: I see.
MR. MYHRE: So the holder of an ATT couldn't jump in a boat and go across the border between the Gulf Islands. They have to use a port of exit.
THE ACCUSED: I'm sorry to interrupt, but is the term "border exit" clearly defined anywhere?
THE COURT: Does -- I don't know that; do you know that, Mr. Myhre?
MR. MYHRE: I can't say --
THE COURT: Right.
MR. MYHRE: -- My Lady. I don't think so, but I didn't check specifically in the definitions for that.
THE ACCUSED: I bring that up only because if it's not defined, then couldn't a port of exit be interpreted as meaning any point at which the person exits the country?
THE COURT: Right, Mr. --
THE ACCUSED: Or does it have to be -- sorry.
THE COURT: Mr. Fox, I'm going to invite you to just make notes of what you want to --
THE ACCUSED: Sure.
THE COURT: -- ask or say and, essentially, I'm going to hear from Mr. Myhre about his submissions.
THE ACCUSED: Thank you.
THE COURT: I may ask him questions, but I'm going to ask you to keep yours for now. And then when Mr. Myhre's finished, I'll -- I'll ask you to make your submissions, raise the questions you wish to raise.
MR. MYHRE: So My Lady, I've included two more sections that I'd like to refer you to. If you could flip over a couple of pages to s. 23 that deals with the transfer, and in a similar vein, right below it, s. 33 which deals with lending. And Mr. Fox actually referred to the lending provision yesterday when he pointed out that you can have another person carry your firearms or lend them to another person as long as they have a licence.
THE COURT: Go on.
MR. MYHRE: And so in my submission, what this Act clearly contemplates is a very tight regulation of restricted firearms. And it certainly, and very obviously, doesn't contemplate transport by an unknowing third party.
THE COURT: Do you have -- did you look at a French version of the Act?
MR. MYHRE: I did not, My Lady.
THE COURT: That might be useful. Sometimes the French version will speak about something in a way that casts light on Parliament's intent. And I'm looking at s. 19(2.2) that seems to deal with transporting and transferring; both. Does that cast any light on the intended meaning of "transport"?
MR. MYHRE: I'm not sure -- I'm not sure that it does, My Lady.
THE COURT: All right.
MR. MYHRE: My last submission relates to the Regulations. And in my submission, they support the interpretation urged by the Crown in two ways.
First of all, as you can see in s. 11 of the Regulations in sub (d), it contemplates a situation in which the vehicle containing the firearm that's being transported may end up being unattended, and so the individual transporting this restricted firearm, if they're going to leave their vehicle unattended, would have to be sure to comply with s-s. (d), and they would not be able to do that if they didn't know they were carrying the firearm. And so you -- it's conceivable that the person who wanted to ship their firearms, if transport can include shipping, would be able to make sure it was unloaded, as specified in sub (a), it was rendered inoperable, and it was in a locked container. But they wouldn't be able to ensure sub (d).
THE COURT: So you're saying that if the Act intended that an individual could -- intended transport to be read broadly as allowing the licence holder to, essentially, ship the firearm with somebody else, that licence holder would not be able to ensure that the regulations were complied with.
MR. MYHRE: Yes, that's my submission.
THE COURT: Because they wouldn't be with the firearm as it was traveling. All right; thank you.
MR. MYHRE: And the second submission on the Regs, and the much more obvious one, is that s. 16 contemplates shipping. Here are the circumstances in which a person can ship their firearms: "only if the destination is within Canada".
THE COURT: Are those the only restrictions on shipping a firearm by posting it?
MR. MYHRE: I'll just double check the table of contents, My Lady, but I think that was the only section actually dealing with shipping. Yes, as you can see it's -- and I -- there's not even a sub 1. So I haven't left out any subsections.
THE COURT: Isn't that a bit peculiar? There's no restriction on -- there is nothing parallel to 11(a) or (b) or (c). So if you look only at s. 16, presumably the firearm could be loaded, operable, not in a locked container, not even declared as being a firearm. I find it hard to -- hard to believe that there's -- there are no other restrictions on shipping by post. And if there are no other restrictions, how does that bear on your larger submission that the entire statutory scheme should be read very restrictively because of its purpose of seriously restricting the availability of firearms?
MR. MYHRE: Well, I think Your Lady has this point. But the point is that there is a differentiation in the Reg -- in the Regs when it talks about transport versus shipping. The fact that they haven't -- the Regulations don't clamp down more on shipping -- I mean, I agree it doesn't seem particularly consistent with really trying to clamp down on firearms but there is that distinction.
THE COURT: And what is it that prevents Mr. Fox from shipping?
MR. MYHRE: It's not something he was allowed to do. It's not something he was allowed to do by his licence. He possessed that firearm from the time he left his apartment until the time TNT picked it up from the packaging depot. And there is nothing in his licence.
THE COURT: So his licence permits only transporting?
MR. MYHRE: Transport to a port of exit.
THE COURT: All right; thank you. Mr. Fox?
SUBMISSIONS RE FIREARMS FOR ACCUSED BY PATRICK FOX:
THE ACCUSED: There is just a couple of points that I wish to make.
First of all, with respect to s. 16, the shipping by post, it is relevant that in the first line of that, they restrict the scope of it to shipping by post only. There is no mention of shipping by courier. And so I don't believe that any of those would apply so much to this situation.
Another point I want to make is, it seems -- I get the impression that the Crown is arguing that my ATT or whatever licences I have only authorize me to transport firearms, not to ship the firearms, but there is no such thing as an authorization to ship.
And one other point that I think would be certainly very relevant here is that an ATT specifies two end points, typically, the owner's home and then whatever destination they're authorized to transport the firearms to, but it must be implicit that the person is authorized also to possess the firearms in all points between those two. And so if the packaging depot is somewhere between my home and the shooting range and I was intending to go to the shooting range at that time, then I wouldn't have been in violation of the ATT -- or the restrictions of the ATT.
And finally though, I understand that these are issues that would need to be addressed or resolved for the purpose of charging the jury, but in all honesty, I don't really see how any of this has much to do with the s. 93 allegation. Because that -- that charge or that allegation is that I possessed the firearms at the packaging depot, and as we saw from the cross-examination yesterday, there is actually no evidence that the firearms were ever there, and I never actually admitted that I shipped the firearms. I only stated that I sent the firearms to Los Angeles.
So beyond the purpose of charging the jury, I'm not sure that all of this discussion really has a lot of relevance to the charge.
THE COURT: All right. Just on that last point, Mr. Fox. And it -- I -- this doesn't deal with the legal issue that I've asked for submissions on, but with the trial more generally, when you say there was no evidence that the firearms were ever at the packaging depot, I feel I need to point out to you that there is circumstantial evidence from which the jury could conclude that they were. And that is the evidence that -- from Mr. Mangat, that he came and met you at your home, outside your apartment, picked up boxes, took them back to his packaging depot, did this, did that, sent them off, ultimately, with UPS. And then we have the evidence from the agent who saw the boxes at Ms. {M*****}'s home and found firearms in them. So --
THE ACCUSED: Okay; fair enough.
THE COURT: -- it's some evidence that -- from which a jury could reasonably conclude that they were -- the firearms were the boxes at the time Mr. Mangat picked them up from you.
THE ACCUSED: Okay.
THE COURT: So -- and also, just to be clear, the reason I'm asking for submissions on this point of law, how do we get to the charge in Count 2. How does -- what -- what law is the Crown relying on and how does it get from point A to point B? That's potentially confusing. What -- what's the legal basis for the charge that the Crown has laid or proved in Count 2 so that I can tell the jury about the elements of that charge? And I felt that the Crown needed to explain in greater detail what aspects of the law it's relying on and how -- essentially, what the Crown theory is, the legal theory, about why it was that you were committing an offence by, if it's proven that you were, sending those firearms in the way that they were sent.
So the Crown has taken me through the aspects of the Firearms Act, the regulation that the Crown says supports the interpretation the Crown's relying on. Yesterday, I believe it was, the Crown took me through the provisions that deal with how it is that you came to be licenced and what your licence allows and doesn't allow. I do wish to look at the key Criminal Code provisions in the French version because interpreting -- where there is any sort of ambiguity, it can be useful to do that.
So how do you wish to deal with this, Mr. Myhre? I can stand down. You can consult the French provisions; I can go and look them up.
MR. MYHRE: I'm not sure how else to do it?
THE COURT: I'm sorry?
MR. MYHRE: Yeah; I think that's what we would have to do, My Lady.
THE COURT: All right. Then we'll do that, and I don't think that will take very long. Mr. Fox, are you able to sort of hold on to the video connection and we'll resume in about 10 or 15 minutes. Will that work?
THE ACCUSED: Sure.
THE CLERK: I'll just leave him dialed up. I won't disconnect it.
THE COURT: All right. Then --
THE ACCUSED: Okay.
THE COURT: -- we'll do that. And Mr. Myhre, are thinking about 15 minutes should be enough?
MR. MYHRE: Yes, I think I can just pull it up on my -- on my cell phone.
THE COURT: All right. So we'll stand down briefly; thank you.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
MR. MYHRE: My Lady, I was able to look at the French versions of the Regs and the Act. I can't say I have anything else helpful to say.
THE COURT: All right. I was able to look at the French version of the Act, and I found that it casts no different light on the intended meaning, and if anything, reinforces the interpretation that Crown counsel was putting forward in that it uses the word "particulier" to mean individual in a number of circumstances where the reference is to the holder of the licence.
Any further submissions from either Mr. Fox or Mr. Myhre?
THE ACCUSED: No, My Lady.
MR. MYHRE: No, My Lady.
[RULING RE FIREARMS ACT]
THE COURT: Now, unless there are questions or anything that needs clarifying on that issue, I do have one other small issue to raise with -- with you. Mr. Myhre, anything before I raise that?
MR. MYHRE: There are a couple of things I want to raise, My Lady, but not --
THE COURT: But different.
MR. MYHRE: -- to do with that issue.
THE COURT: All right; Mr. Fox, any questions about what we've just been discussing?
THE ACCUSED: No.
THE COURT: So the one thing I wanted to raise was admissions. The very first admission in the trial was -- and I won't have the language exactly, but going by memory, something to the effect of -- and it dealt with the Crown book of documents taken from the website, and it was essentially that the material in that book accurately represents some of the content of the website as of a given date, and I can't remember the date exactly.
And I'm simply wondering whether there should be a parallel admission dealing with some of the other exhibits that were, it seems, taken from the website. There was a defence book, for example. And there were a couple of loose emails that were filed. I don't have the exhibit numbers. Is that something you've considered, Mr. Myhre?
MR. MYHRE: I did think about that, My Lady. It seems to me that those other things were authenticated to the extent necessary when they were put in through questioning. I'm not sure it was really formally gone through, but certainly the questioning and the answers proceeded on the basis that everyone agreed or appeared to agree that these are accurate copies of the emails that were exchanged between the parties. I don't think there is really any issue there.
THE COURT: All right. So are you content it that way, as well, Mr. Fox?
THE ACCUSED: Yes, I am.
THE COURT: All right; thank you. What did you wish to raise, Mr. Myhre?
MR. MYHRE: Two things, My Lady. The first one is, it seems to me that Mr. Fox representing himself is in a slightly difficult position when it comes to making his closing address, and so I wanted to ask Your Ladyship to just caution him about the difference between talking about the evidence, making submissions about the evidence, and giving evidence. And because he's in a position where he is so familiar with everything that happened, it may be difficult for Mr. Fox not to talk about things that aren't in evidence, things that he knows or would like to say but that never made it before the jury. And I expect he knows that, but I thought I should mention it.
THE COURT: All right. That seems a cautious approach; thank you. Mr. Fox, you do understand what a closing address can include and not include; do you?
THE ACCUSED: It's my understanding that I can only make reference to information that has been admitted as evidence and not bring up new information at that time.
THE COURT: That's a good way of putting it. So you need to be very careful not to refer to, for example, emails that are not in evidence.
THE ACCUSED: Right.
THE COURT: But also you need to be careful not to start talking about your reasons for having done something unless you're doing it in a way that is based in the evidence. So for example, there might be an email that the Crown says should be interpreted in a certain way, and your position might be, no, that's not the reasonable interpretation, there is another reasonable interpretation. And you could certainly suggest to the jury that there is a different reasonable interpretation. What you cannot do is say to the jury, "Well let me tell you what I meant when I wrote that" because --
THE ACCUSED: Right. Right.
THE COURT: -- because that's not in evidence. We don't have direct evidence of what you meant. But in the same way that the Crown may be asking the jury to draw inferences from what you wrote, you can ask the jury to draw inferences from what you wrote. You simply can't tell them what you meant because that would be --
THE ACCUSED: Okay.
THE COURT: -- that would be giving evidence.
THE ACCUSED: Right; okay.
THE COURT: Are there other areas that might seem like grey areas, Mr. Myhre; that you think it would be helpful to address with Mr. Fox?
MR. MYHRE: That's the only one that occurs to me, My Lady.
THE COURT: Another example, you might be tempted to tell the jury why you did something. And again, that's not in evidence. And you would be improperly giving evidence through a closing if you were to say, "Well, the reason I did that was".
But there may be some situations where you could suggest to the jury that the only reasonable inferences that a person would do something for a particular reason. People bound by custody orders, for example, usually have a need to communicate about how the child will go from one person to the other, for example.
THE ACCUSED: Okay.
THE COURT: You -- I think I'm belabouring the point. I think you understand the point.
THE ACCUSED: I understand.
THE COURT: All right; thank you.
THE ACCUSED: Thank you.
THE COURT: Mr. Myhre, was there something else?
MR. MYHRE: One more thing, My Lady. I just wanted to clarify and canvass my understanding of what the law is when it comes to talking about the elements of the offence, and specifically what evidence is relevant to either repeated communication or threatening conduct. And I'm thinking specifically of the blogs that are included in Exhibit 1. So these are all things the Crown says are statements by Mr. Fox. They could constitute communication if they reach people known to Ms. Capuano. They could also constitute --
THE COURT: Well, just stop there. Communication in the abstract, communication to Ms. Capuano; which one?
MR. MYHRE: Communication as it's defined in the criminal harassment section. So communication, direct or indirect, with the complainant or anyone known to her.
THE COURT: All right.
MR. MYHRE: So if -- if it's a communication designed to go to someone known to her, or if it's -- if it contains a threat of some kind, then it would be my submission that those things are things the jury can consider when they are thinking about Mr. Fox's actions. Now those things aren't -- where they aren't relevant is they're not relevant to Ms. Capuano's fear, or the legitimacy of her fear. But they are also relevant to Mr. Fox's intent; understanding what he meant, or intended by other actions he took.
And my submission is that's consistent with the Taylor case that we've looked at a few times.
THE COURT: Well, let me just go back to the first statement you made. The conduct -- so when you're talking about repeated communication or threatening conduct. Let -- let's call that the conduct. The conduct has to be conduct that causes the other person reasonably in all the circumstances to fear for their safety.
MR. MYHRE: So in that, My Lady, I respectfully disagree because I don't think that's consistent with Taylor.
THE COURT: Well, look at the language of s. 264:
...engage[s] in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety...
MR. MYHRE: Hmm; it's hard to argue with that, My Lady. It is inconsistent with Taylor --
THE COURT: Well --
MR. MYHRE: -- but --
THE COURT: -- that may be.
MR. MYHRE: -- so -- so then, I'm not going to disagree with Your Ladyship on that. It makes perfect sense. So then, my submission is and what I will be saying to the jury is that when you're thinking about what Mr. Fox's intentions were with some of the actions that did cause Ms. Capuano to fear, you can consider the things that he said in these blogs. There is no evidence Ms. Capuano actually read them or that those things caused her to fear, but they're relevant to show Mr. Fox's intent with some of his other actions. We did sort of canvass --
THE COURT: Well, the way I was thinking of dealing with it is that if it's material on the blogs website that comes to her attention in some way, then it could be considered in relation to the question of whether it -- well, then it could form part of the conduct that the offence must be grounded on, and it could be considered in relation to whether it reasonably caused her to fear for her safety. But if it didn't come to her attention, then it could not be considered in relation to either of those things. But it may be relevant to Mr. Fox's state of knowledge, awareness, intent.
MR. MYHRE: I agree with that, My Lady.
THE COURT: Do you have any submissions, questions about that, Mr. Fox?
THE ACCUSED: Not specifically about that; no. But I suppose I should ask, just to make sure that I'm not going to be out of line with this tomorrow. In closing arguments, is there -- there won't be an issue with me bringing up my position that the website is really just a question of free speech; right? I mean, because that wasn't brought up during the trial.
THE COURT: Free speech is not a defence as such.
THE ACCUSED: Right.
THE COURT: If the Crown were to prove all the elements of the offence of criminal harassment, then that would essentially supersede your right to freedom of speech.
THE ACCUSED: Right.
THE COURT: But there may be a more subtle way in which you can put the idea of freedom of speech before the jury in your closing address. I get the impression that it may be your position that you simply cannot foresee any situation in which someone, Ms. Capuano, would be troubled by publication of something that is true. I don't know if that's your position? Do you want to tell me more about what you wish to say about free speech? And then I could be a bit more --
THE ACCUSED: Sure.
THE COURT: -- helpful. You don't have to.
THE ACCUSED: Well, it would come up tomorrow anyway, so.
MR. MYHRE: Well --
THE ACCUSED: Now I --
MR. MYHRE: Sorry, My Lady. I just want to say it. By saying this, Mr. Fox, gives me the opportunity to respond to that in my closing address. And it -- it may be that I've already thought of that and put it in there, but I don't want to be in a position where --
THE COURT: I was going to point out the same thing. I did yesterday. But, Mr. Fox, you -- by having chosen not to call evidence, you get a -- what's sometimes considered a strategic advantage of making your closing address last. And I do not wish to remove that advantage by having you say now in Mr. Myhre's presence what it is that you want to say to the jury tomorrow.
I'm doing -- I'm -- I'm saying these things only -- or asking you these questions only because you asked me a question --
THE ACCUSED: Correct.
THE COURT: -- "Can you bring you up free speech?" I -- because you don't want to say something inappropriate. And I should add that if you were to put before the jury something that was completely inappropriate, I might need to tell them that in my charge. So we have to tread very carefully here. I don't want to undermine your -- the effect of your closing. I can tell you free speech is not a defence to criminal harassment.
THE ACCUSED: I understand that free speech is probably -- first let me say, I have no concerns about if Mr. Myhre hears this at this point. I know that other things that I have said, he has brought them up; for example, on the direct examination of Ms. Capuano. So I would expect that he would bring it up ahead of time. I have no issue with that.
Now, I know that free speech would not be a defence for harassments with respect to direct or indirect communication. However, I'm still of the position that a publicly accessible website must be viewed as a public forum. And that's where I expect to bring up the point of free speech. Mr. Myhre's position is that the website somehow constitutes harassment. My position is Ms. Capuano doesn't have to go to the website if she doesn't want to be subjected to it.
And if we say that the website, or the contents on the website is somehow harassment and should not occur, it seems that we're really putting a large chilling effect on everybody's pursuit or -- or their exercise of free speech. I mean, I would be a little afraid that a case like this then could result in a lot of angry ex-husbands or single fathers afraid then to voice any opinion of their ex-wives. And that's the type of issue that I would be looking to bring up on closing. Not so much -- not at all with respect to the emails. That's unquestionably not protected by free speech. But rather the publicly made statements that were intended to be received by the general public, not at all by Ms. Capuano.
THE COURT: All right. Mr. Myhre, what's your submission on whether that is a -- whether there is anything problematic about Mr. Fox putting that theory of the defence to the jury? Essentially, that Ms. Capuano didn't have to look at the blog or the website.
MR. MYHRE: It seems to me that he's really treading into the area of the law there, and there needs to be - I think we already canvassed this - a pretty clear instruction on the circumstances of this case and what constitutes repeated communication, direct or indirect, with Ms. Capuano or any person known to her. So the jury has to have an instruction on what does that mean when Mr. Fox is sending her emails telling her about the website and what's going on with the website.
And my submission is that when that happens, it ceases to be -- I mean, then it's quite clearly direct communication.
THE COURT: I think what you're saying is that the emails incorporate the effect of the website into the emails as direct communication.
MR. MYHRE: Yes. And in addition, you could also view some of what Mr. Fox says to Ms. Capuano about the website as threatening conduct because he ties the website into her not being able to get a job, which in my submission to the jury will be that's very obviously what one of his purposes was with the website.
THE COURT: All right; thank you. Mr. Fox, you have my answer that free speech is not a defence to criminal harassment. You have Mr. Myhre's response which is, essentially, an argument about how the evidence should be characterized. I'm not sure I can say much more to you without more specifics about exactly what it is you may be saying to the jury.
THE ACCUSED: Sure; okay.
THE COURT: Does that answer your question or does it not answer your question?
THE ACCUSED: Well, yeah, that does -- that does answer my question. I mean, it does raise some concerns on my end that probably wouldn't really be appropriate to get into at this point anyway.
One thing I am becoming increasingly concerned about is the point that I made yesterday that Ms. Capuano lives in a jurisdiction that has one set of laws. I live in another. And I can see the ruling in this case, if it goes a certain way, or the -- the outcome of this case, causing a lot of complication or concerns about those types of issues that Ms. Capuano is not subject to any concept of psychological harm or psychological safety, so she could do whatever she wants about me. I was speaking with Ms. Clancy [phonetic] this morning, for example. Ms. Capuano continues to make all these claims and allegations against me, but then I find myself in a position where I'm not even able to respond to those or to defend against those allegations without fear of being subjected to criminal harassment prosecution, which is, to a large extent, what I'm having with this case. Ms. Capuano went on the news and made these allegations, so I wrote a blog post responding to that. All of sudden I find myself being accused of -- of threatening her and now being charged with criminal harassment.
But as I said, that's probably something that wouldn't be appropriate to discuss at this point.
THE COURT: All right. Anything else, Mr. Myhre, that you'd like to raise? Mr. Fox?
THE ACCUSED: No.
MR. MYHRE: No, My Lady. Will we -- you did mention the possibility of giving us the draft of the charge tomorrow morning before we do our closings?
THE COURT: I did.
MR. MYHRE: Is that possible?
THE COURT: I'll have to see. I expect so.
MR. MYHRE: Would it be possible then to convene briefly at 9:30 or perhaps to come to the registry at 9:30 or...?
THE COURT: I have another matter at 9:00. I was going to suggest a quarter to 9:00, but Mr. Fox won't be here at quarter to 9:00. I think --
MR. MYHRE: Well, My Lady, I could get the charge from you and give a copy to Mr. Fox.
THE COURT: Well, then what I suggest is that -- Madam Registrar, do you know what courtroom I'll be in for the nine o'clock matter? Will it be --
THE CLERK: No, I tried to message, My Lady, but --
THE COURT: Ah --
THE CLERK: -- no one is -- I think they're doing the list right now.
MR. MYHRE: We can -- I can find it.
THE COURT: All right. I'll certainly have something. There may be some blanks in it, but I'll certainly have something you can have. And what I suggest is that you show up at the courtroom somewhere around 9:00 to 9:15. I don't know how long this other matter will take. And in any event, I might just briefly interrupt it, give you the copies, or perhaps ask Madam Registrar to give you the copies on your undertaking, Mr. Myhre, that you'll immediately deliver one to Mr. Fox so that he's not disadvantaged by having one later than you, so that you're effectively going to receive them at the same time, Mr. Myhre.
MR. MYHRE: Very good, My Lady. Mr. Fox, what time do you usually get here in the morning?
THE ACCUSED: 9:30.
THE COURT: Ah. All right; nothing else?
THE ACCUSED: No.
THE COURT: All right. Thank you very much and we'll adjourn until tomorrow morning.
THE CLERK: Order in court. This court stands adjourned until tomorrow morning at ten o'clock a.m.
(VIDEOCONFERENCE CONCLUDES)
(PROCEEDINGS ADJOURNED TO JUNE 21, 2017, AT 10:00 A.M.)
Transcriber: J. Vanin