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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 21, 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 21, 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
  • Appearing as Agent for CBC News:Y. Brend (in a.m.)
    N. Clancy (in p.m.)
J.C. WordAssist Ltd. (Vancouver)
Suite 614 - 808 Nelson Street, Vancouver, B.C. V6Z 2H2
Phone 604-669-6550

INDEX

  • SUBMISSIONS RE MEDIA FOR CBC BY NATALIE CLANCY:24
  • SUBMISSIONS RE MEDIA FOR CROWN BY MR. MYHRE:27
  • SUBMISSIONS RE MEDIA FOR ACCUSED BY PATRICK FOX:28

EXHIBITS

  • MARKED G FOR IDENTIFICATION: Document titled "R. v. Fox Final Instructions to the Jury"1
  • MARKED H FOR IDENTIFICATION: Handwritten note from Juror 8 dated June 21, 20171

RULINGS

  • Ruling re application by Media to have access to trial exhibits29
(Jury Out)
Proceedings

BAN ON PUBLICATION - INHERENT JURISDICTION


Vancouver, B.C.
June 21, 2017

(JURY OUT)
THE CLERK: Recalling the matter of Her Majesty the Queen against Patrick Henry Fox, My Lady.
THE COURT: Yes. The first order of business is that the draft of the charge that I made available to Mr. Myhre, and Mr. Myhre to give to Mr. Fox, should be marked as an exhibit for identification.
THE CLERK: That will be Exhibit G for Identification, My Lady.
MARKED G FOR IDENTIFICATION: Document titled
"R. v. Fox Final Instructions to the Jury"
THE COURT: Thank you. And here's a copy, Madam Registrar, that will be Exhibit G.
Second, one of the jurors has a problem. Mr. Sheriff has asked the juror to write it in a note. The juror is Juror 8, who sits in the front row, second from the left, and I'm not going to read out the note. It deals with a medical issue. I'm going to hand it to Madam Registrar and ask that Mr. Myhre and Mr. Fox have an opportunity to read it. It sounds like not a severe medical issue, but obviously one that would prevent the juror continuing today and, depending on the diagnosis, possibly for longer.
THE ACCUSED: It's my understanding that the loss of one juror --
THE COURT: Just -- just a moment, Mr. Fox.
THE ACCUSED: Oh, sorry.
THE COURT: Have you had an opportunity to read that note?
THE ACCUSED: Yes, I have.
THE COURT: Could I have it back? I didn't make copies of it, and I'd like to just look at it for now. It will end up marked as an exhibit for identification. That should be Exhibit H, please, for identification, and it should be sealed.
MARKED H FOR IDENTIFICATION: Handwritten
note from Juror 8 dated June 21, 2017
THE COURT: That juror is here in the building but not with the other jurors at the moment. Where -- what you are probably going to say, Mr. Fox, is that the Criminal Code does permit the trial to continue with fewer than 12 jurors. It can continue with either 11 or with 10. What I will tell you, because you're representing yourself and you may not be aware of this, is that it would be very unusual for the defence to wish, and -- and sometimes the Crown to wish to immediately to proceed without a full jury box.
Part of the reason for that is that, because the burden of proof is on the Crown to prove each element of the charges beyond a reasonable doubt, and because the jury must be must be unanimous in order to reach a verdict, generally it's seen as advantageous to the defence to have a full jury box. There are circumstances where that's simply not possible, but one usually doesn't leap to that result with allowing a little time to see if, for example, the juror's problem could be quickly addressed and corrected. It sounds as though that is possible, although obviously we don't know that, and nor does the juror.
Mr. Fox, do you have a submission, you're on your feet?
THE ACCUSED: No, no, I was on my feet because you were addressing me.
THE COURT: All right. Mr. Myhre?
MR. MYHRE: No submissions, My Lady.
THE COURT: Well, it would be helpful to have some submissions. It seems that the options are proceed immediately to excuse the juror and continue with 11, stand down for a half a day or a day for the juror to seek medical attention and report back on his condition. It's likely to take a full day, I would think, rather than a half-day.
At that point we are looking at Thursday for closing, this Friday for a charge. I'm never keen to charge a jury on a Friday -- Friday because it's quite likely that they'll then be required to deliberate on the weekend. It's not inevitable, but it's a fair possibility.
There's a balancing exercise obviously moving the trial along, keeping the jury box as full as we reasonably can, and inconveniencing the jury as little as possible, while also having a fair trial.
So, Mr. Fox, do you have a submission or a preference?
THE ACCUSED: In this circumstance, would it be inappropriate for me to defer to yourself and Mr. Myhre on this, and I would like to keep the jury box full, and I would like to get this over with as quickly as possible, but at the same time I understand the juror's predicament.
THE COURT: I think there's no question that the juror cannot and should not continue this morning, for all sorts of reasons. So the options are, as I've outlined them, unless you or Mr. Myhre have other ideas.
MR. MYHRE: My Lady, there are no good options. I guess, on balance, as I think about it, the Crown's preference would be to excuse that juror, if that's Mr. Fox's preference. If Mr. Fox's preference is to keep a full complement, we should respect that and adjourn a day, hoping that tomorrow the juror will be in better shape.
THE COURT: So when you say excuse you mean for the day?
MR. MYHRE: No, I mean, reduce the number of jurors.
THE COURT: I see.
THE ACCUSED: I might propose then that we could give that juror an opportunity to deal with this, perhaps a day, because there are going to be some issues that we're going to need to address the charge, right. I mean, when I was looking through it, there were some -- some wording that I would like to discuss. And we were -- I believe maybe we were going to address that either this afternoon or tomorrow.
THE COURT: Yes, we were. Mr. Sheriff, do we have any indication from the juror about how long he needs to get medical advice? Would that be something he could do in the morning?
THE SHERIFF: I can ask him, My Lady, if he can do that sometime today, get back to us today.
THE COURT: I'm thinking about the morning, whether that could be done in the morning so that we might be in a position -- actually, no, he's not going to be fit to continue this afternoon.
All right. Let's go step by step. I think we'll start by giving the juror the day to seek medical attention, and I will ask Mr. Sheriff to ask that juror to contact Mr. Sheriff before the end of the day and let him know how he's doing, so that we'll have that information --
THE SHERIFF: Yes, My Lady.
THE COURT: -- for tomorrow morning, and I'll ask the jury, the remainder of the jury to come in, I will tell them simply that there is a personal issue with one of the jurors, and we're going to have to postpone things by a day, and come back tomorrow.
And then we'll see how we do with that other juror, we'll probably have a discussion at the very end of today once we know how the juror is -- what the diagnosis is and estimated time before he would be able to continue, and then we'll make a decision about whether in fact we ask the jury to come back tomorrow as they've been requested to do, or whether we phone them and put them off for another day or over until Monday.
Is that agreeable?
MR. MYHRE: Yes, My Lady.
THE ACCUSED: Yes, My Lady.
THE COURT: All right. Thank you. So, perhaps first, since the jury is here, they should be asked to come in and I will excuse them for the day.
THE SHERIFF: The jury, My Lady.
(JURY IN)
THE COURT: Good morning.
Members of the jury, you've probably noticed that there are 11 of you today. One of the members of the jury has a personal issue today that prevents him serving today. You do not need to be concerned about that, and you do not need to ask yourselves what it involves.
But I am going to excuse you for the day, and ask you to come back tomorrow. There is a slight chance that I may need to excuse you for a little longer and, if that is the case, Mr. Sheriff or one of the other sheriffs will be in touch with by telephone toward the end of the day. But I'm hopeful that we'll be able to continue tomorrow.
So essentially this sets us back by a day from the time -- the plan or the schedule that I outlined for you the other day. I regret the fact we can't continue today. These things do happen, and it's an unavoidable situation.
I thank you for attending today.
(JURY OUT)
THE COURT: All right. Now, you've probably not had the draft charge for long enough to have read it through.
THE ACCUSED: That's correct.
THE COURT: All right. Shall we stand down and give you an opportunity to review it?
THE ACCUSED: All right, please.
THE COURT: I've been told also that Ms. Natalie Clancy has an application. Is Ms. Clancy present in the courtroom?
YVETTE BREND: No. My name is Yvette Brend, I'm standing in for her. She had another assignment.
THE COURT: All right. I'm not proposing to deal with it now, but simply wanted to acknowledge the fact that I've received an application and suggest that steps be taken to set it down at a time that's convenient for everyone, who will include Crown counsel and Mr. Fox. So, how do you propose to deal with that or how does Ms. Clancy propose to deal with that?
YVETTE BREND: I'm happy to present it now or whenever it's convenient to you. We're basically asking for access to the exhibits.
THE COURT: All right. Mr. Myhre, have you received this application?
MR. MYHRE: Yes, My Lady, and the Crown has no opposition to the media having access to any of the exhibits.
THE COURT: For all purposes, including publication?
MR. MYHRE: Yes.
THE COURT: All right. The question I need to ask is if, and obviously the jury hasn't made a finding, but if the material in say the Crown book of documents were to be found to amount to evidence constituting criminal harassment, would the court not have some obligation not to essentially contribute to the compounding of the problem? There's an if in there, but...
YVETTE BREND: If I may, most of the exhibits that you're referring to have already been [indiscernible/not at microphone] exhibits [indiscernible].
THE COURT: Can I ask you to come forward partly so your voice gets picked up on the recording?
YVETTE BREND: Sure, I can do that. I haven't done this before.
MR. MYHRE: You can stand here.
YVETTE BREND: Most of the exhibits that you're referring to have already been in media reports. There would only a be few exhibits that haven't been made public before.
THE COURT: So what ones would you be looking for then?
YVETTE BREND: We wanted access to all videos and photographs and -- and exhibits because of the organization, because of the accuracy issues, but also because they help illustrate the story that we're going to tell at the end of the trial. We make journalistic decisions at CBC not to name certain parties and to -- and be respectful in all cases of what --
THE COURT: All right.
YVETTE BREND: -- people's wishes were around this before it's ever ruled by the court, we'd never name the children, we have very high journalistic standards around that.
THE COURT: I don't doubt that. I suppose if the exhibits were, for example, in support of charges of child pornography and were pictures, the court might feel uncomfortable making them available for publication because the harm, if there was a harm, would be repeated or compounded by further disclosure or publication, and I -- I'm simply wondering out loud whether we're in a similar situation here in relation to some of the exhibits, certainly not all of them.
YVETTE BREND: And just to respond to that, in a case like that, we would have raised very serious standards and -- and serious discussions about what's in the public interest to publish. We would never publish pictures of a child or, you know, something that would --
THE COURT: I see.
YVETTE BREND: -- perpetuate something like that. I mean, I can't speak for other media organizations, but CBC has some of the highest standards in the world now.
THE COURT: All right. Thank you. That's helpful to know.
I think our first order of business has to be to keep this trial going. As you've just seen it's been thrown back a little bit. That may give an opportunity for your application to be heard if Mr. Myhre and Mr. Fox feel ready to respond to it, in other words, that they've had sufficient time to think about the issues.
Mr. Myhre, do you have a suggestion about timing? Mr. Fox obviously needs time now to review the draft charge, and that is the first order of business. Mr. Fox?
THE ACCUSED: I would just like to say with respect to this application from CBC or from Ms. Clancy, I have no opposition to it.
THE COURT: And does your lack of opposition apply to all of the exhibits, and I know you're obviously thinking about those exhibits that came from the website, but there are also, for example, photographs of things seized in Carson County. What else are there?
THE ACCUSED: If there were any that I would have any concern about it would be my recorded statement to the RCMP, but even that I don't have opposition to. I believe this should be as public as possible, this entire proceeding.
THE COURT: All right. I'm sorry, I missed your name?
YVETTE BREND: It's Yvette Brend, B-r-e-n-d.
THE COURT: Thank you. There are some exhibits that are sealed. Those, I'm pretty sure all, relate -- oh, that may not be the case, but many of them relate to juror issues, such as the one you saw this morning where a note has been sealed. And I'm assuming those are not exhibits you're concerned about?
YVETTE BREND: Those are not of great interest to us, to be honest. We'd never report that unless there is -- cogent to the verdict.
THE COURT: All right. There's an order that is marked here as being sealed. I don't recall what that is. Do you, Mr. Myhre? Two orders actually on May 23.
THE CLERK: Let's just have the -- I don't know what clerk did that. They've put the order was made, meaning the sealed order, is how they worded it.
THE COURT: Oh, an order that there be a --
THE CLERK: A seal --
THE COURT: -- seal.
THE CLERK: -- so they worded it that way.
THE COURT: It's not that I made an order and the order was sealed?
THE CLERK: No, just --
THE COURT: All right.
THE CLERK: -- that the...
THE COURT: Would it be appropriate timewise to deal with this application perhaps sometime this afternoon? Would that work from the perspective of also dealing with the issues concerning the charge, which I think have to have priority?
MR. MYHRE: Yes.
THE COURT: All right. Mr. Fox, yes, would that work for you?
THE ACCUSED: Yes.
THE COURT: Ms. Brend?
YVETTE BREND: [No audible response].
THE COURT: All right. Shall we say two o'clock? Does that suit you, Ms. Brend?
YVETTE BREND: Thank you.
THE COURT: All right. Then we'll deal with it at 2:00. Madam Registrar, you probably have all the exhibits in the courtroom, do you?
THE CLERK: Yes, I do, My Lady.
THE COURT: All right. It would be helpful for them to be there at two o'clock so, if there's any doubt as to what something is, it's there to be seen.
Ms. Brend, have you given any consideration to an order for certain purposes and not for others or not?
YVETTE BREND: We'd prefer to be able to use it for broadcast and for print, if possible, because it just seems to be more open, but I could speak to that at two o'clock, if you like, I can speak to Natalie in the meantime.
THE COURT: Thank you. And my concern is, at this point and I've not heard submissions, but my concern is that we don't know at this point whether the body of material that the Crown has tendered is going to be found by the jury to essentially amount to criminal harassment and, if it is, there's a potential issue in the court simply handing it over for further publication at somebody else's discretion without any constraints on -- on that, but it's something to think about.
YVETTE BREND: Yes.
THE COURT: Thank you. All right. So we'll deal with that application at 2:00, thank you. We'll stand down now. How long would you like roughly, Mr. Fox?
THE ACCUSED: It's very difficult for me to -- to estimate. I'm sure a lot of the --
THE COURT: I won't hold you to it. If you need more time, you'll have it.
THE ACCUSED: Can we say an hour? Is that too long or?
THE COURT: No, that's not too long.
THE ACCUSED: Okay.
THE COURT: Mr. Myhre, is that long enough for you?
MR. MYHRE: Yes, My Lady.
THE COURT: So what is it now, 20 to 11:00, shall we start at quarter to 12:00, 11:45?
THE ACCUSED: Okay.
THE COURT: Anything else we should deal with right now?
MR. MYHRE: No, I don't think so.
THE COURT: All right. Thank you.
THE CLERK: Order in court. This court stands adjourned until 11:45 a.m.
(PROCEEDINGS ADJOURNED UNTIL 11:45 A.M.)
(PROCEEDINGS RECONVENED)
THE COURT: I seem to be missing most of what I need. Oh, I've got my copy of the charge, all right. Go ahead.
MR. MYHRE: I have three comments, My Lady. The first one relates to page 19, paragraph 84.
THE COURT: Yes.
MR. MYHRE: My Lady, I'm content with your phrasing in paragraph 84, and I don't -- as I've reflected on it more, I don't really think the jury needs to think about indirect communications because my submission to the jury will be that Mr. Fox made the website direct communication by telling Ms. Capuano about it and referring her to it repeatedly.
THE COURT: All right.
MR. MYHRE: Paragraph 86, My Lady, I do think there should be an instruction on threatening conduct since my submission certainly is that some of the things Mr. Fox did could constitute both because they are repeated communication and some of them, in my submission, are threats, and --
THE COURT: That's not really my question.
MR. MYHRE: Oh.
THE COURT: My question is whether it adds anything to charge on (d) as well as (b), and I suppose another way of asking that question would be if the jury did not find conduct that fell within (b) could it possibly find conduct that fell within (d)? I would think that would be extremely unlikely, and by charging on (d) as well, I -- subject to submissions Mr. Fox may have, I don't disagree that there's evidence there that supports a charge on (d), but when I look at trying to make the description of the defence as the -- of -- of the offence as easy as possible for a jury to deal with, I have to wonder about the utility of charging on (d) as well.
And, as I've attempted to say in that little note built into paragraph 86, when you start to charge on threatening conduct, you start to cover some of the issues that are -- have to be separately dealt with as separate issues concerning harassment, such as Mr. Fox's intent, Ms. Capuano's state of mind, and so forth.
MR. MYHRE: I see.
THE COURT: It just appears to me to make the charge more complex, potentially more confusing, and likely for no reason that would assist the Crown and certainly wouldn't assist the defence.
MR. MYHRE: Could I think about that --
THE COURT: Yes.
MR. MYHRE: -- a little bit more? My comment on the -- I -- on the paragraph relates to both how Your Ladyship has phrased fear in this section and -- and a further section. In my submission, if this does remain in the charge, it should be made clear to the jury that the concerns -- the sense of fear include concerns for physical and mental wellbeing.
THE COURT: Now, that is covered in the other portion where it's addressing --
MR. MYHRE: Yes.
THE COURT: -- the separate issue, but you'd like to see it addressed here, as well? That seems reasonable.
MR. MYHRE: If we do leave this part in. And so flipping ahead to that next section where Your Ladyship does mention it at page 24, paragraph 112, I would ask Your Ladyship to include the what I take to be a statement of the law in the Goodwin case at paragraph 22, that the victim need not suffer ill-health or major disruption so that the jury has some idea of the extent of the fear that would be required to make out the offence.
THE COURT: I actually had that in a previous draft and took it out. All right. Thank you.
MR. MYHRE: That's all, My Lady.
THE COURT: Was there another question I had embedded in this document? Perhaps not. Perhaps you've addressed them both. Are you content with the reference to the types of evidence the jury may want to consider in relation to various issues?
MR. MYHRE: Yes.
THE COURT: One other question, if you would look at the description of Count 2, which begins on page 26, I could find no model instruction for this offence, so I basically crafted it from my review of what the elements appear to be as they relate to what appears to be in issue in this case. I wondered whether to -- if you look at the third issue that's listed on page 27, whether Mr. Fox was in possession of firearms while they were transported from his residence to the Packaging Depot until they were released to UPS.
I wondered whether to subdivide that into two issues; one being whether the firearms that ultimately were found in the boxes in Ms. {M*****}' residence were transported from Mr. Fox's residence to the Packaging Depot and then released to UPS.
That would be one issue, and the other would be, if they were, was Mr. Fox in possession of them during that time, but it occurred to me that all of the evidence concerning both of those issues would be identical and that there might be no utility to subdividing the issue as I've expressed it. But there is, I should point this out, there is arguably an assumption built in to issue 3 that the firearms did travel that route, and that may be problematic from Mr. Fox's perspective or from the Crown's. So I'd appreciate your submissions on that, Mr. Myhre.
MR. MYHRE: My Lady, could I give some thought to that while Mr. Fox raises whatever issues he has?
THE COURT: All right.
THE ACCUSED: First, on page 19, paragraph 83, it reads [as read in]:
It may be to Ms. Capuano or to anyone she knows...
THE COURT: Can I just get there --
THE ACCUSED: Sure.
THE COURT: -- and --
THE ACCUSED: Sorry.
THE COURT: -- make sure I understand what the context is? Page 19, paragraph 83. All right.
THE ACCUSED: Now, the part that reads "or to anyone she knows," that the way it's written would include {G*****}, though I'm sure that my communication with {G*****} would not be included in this charge; is that right?
THE COURT: Remember this is only one issue. It's just the threshold issue of was there repeated communication.
THE ACCUSED: Right.
THE COURT: And on that point, I think arguably, yes, communication with {G*****} gets repeated could fall within -- could satisfy --
THE ACCUSED: Hmm.
THE COURT: -- this first element, but there would be -- well, would there -- what's troubling you about this and then I can address with the Crown whether there's a way of dealing with it? Does the Crown -- first of all, does the Crown rely on any communication with {G*****}?
MR. MYHRE: No, it's more the communication has with Ms. Capuano about {G*****}, about how he's using {G*****} as a pawn to hurt her emotionally.
THE COURT: All right. And then tell me what's troubling you about it, Mr. Fox, and I'll try and find a way to fix it.
THE ACCUSED: I just wouldn't want a jury to think that that might -- that my communication with {G*****} maybe included in that since I have very frequent -- or had until the time I was arrested very frequent communication with {G*****} long after the point of the first arrest where I was -- there was the no-contact order. Now, I'm not sure, I mean, there hasn't been any evidence submitted of my contact with {G*****}.
THE COURT: Well, there was evidence that you were copying {G*****} on most of the emails.
THE ACCUSED: Right, right. But, for example, my telephone calls with {G*****} say on a weekly or every few days speaking with him on the phone, but the jury never heard about that so I don't think that that would be an issue, although under the statute, that could be a problem.
THE COURT: And, as I think about it, Mr. Fox, it may be part of the Crown's position that, by copying {G*****} with a number of the emails that we've seen, you were contributing to the harassing effect on Ms. Capuano.
THE ACCUSED: Hmm. But then she also was copying him.
THE COURT: All right.
THE ACCUSED: Next, in paragraph 84, the next paragraph there's a segment that reads [as read in]:
If the person who posted the material or sent an email intended the person who read or received it to bring it to Ms. Capuano's attention...
THE COURT: And they did.
THE ACCUSED: I'm sorry?
THE COURT: And they did.
THE ACCUSED: Right, right. So that gets into the -- the intended is -- the intention of the -- the speaker or the writer, I assume.
THE COURT: Yes.
THE ACCUSED: I wonder if it would be acceptable to maybe clarify that a little bit for the jurors because there is a lot of content on the website, and some of the -- I mean, my position is that all of the content on the website was not intended for Ms. Capuano to -- to read. And if -- if that's the case, then from what you have here, it seems that the burden -- hmm, somebody would have to establish or convince the jury that it was my intention that she actually read or receive that material, no?
THE COURT: Yes. Now, does it answer your concern if you read on in paragraph 85 and I'm starting at the second line [as read in]:
Keep in mind that material is not direct or indirect communication with Ms. Capuano unless it came to her attention.
THE ACCUSED: But, see, with that, if I write something on the website with no intention of Ms. Capuano seeing it --
THE COURT: Ah, yes, that's a different issue.
THE ACCUSED: -- but it comes to her attention -- you see, my big concern here is that Ms. Capuano --
THE COURT: How about this? How -- unless it was intended to come to her attention, and it did.
THE ACCUSED: Would it be okay if we said "intended by Mr. Fox to come to her attention"?
THE COURT: Yes.
THE ACCUSED: Thank you.
THE COURT: All right.
THE ACCUSED: In paragraph 86, and I know that Mr. Myhre was just speaking with you about paragraph 86 a few moments ago, so I'm not sure what the status of the wording of that paragraph is going to be or if it's going to be removed or, but --
THE COURT: Mr. Myhre wants to think about that. It's an alternative way of committing the conduct for the offence and I've asked him to consider whether the Crown needs to rely on that.
THE ACCUSED: Right.
THE COURT: But let's assume for now that the Crown does with so rely on it, and so if you have comments, perhaps let me know what they are.
THE ACCUSED: The -- well, the first line outside of the question bracket, the phrase or term directed at was used, and that is a term I've had issue with with respect to Ms. Capuano's order of protection in Arizona. Some people misconstrue the term directed at to include, for example, statements about Ms. Capuano, but which weren't actually to her, and I would ask maybe we could provide some clarification for the jury so that they understand that directed at would mean, for example, statements made to Ms. Capuano as opposed -- as opposed to statements made about Ms. Capuano but to other parties.
THE COURT: I see. Let me just check the language in the Criminal Code. Well, it's threatening conduct, and I think probably the intent here is that it be that the threat part of is directed at Ms. Capuano. So conceivably there could be a statement to someone else that would amount to a threat to Ms. Capuano. I'll -- I'll think about that one --
THE ACCUSED: Okay.
THE COURT: -- here and I'll hear Mr. Myhre's submissions on that, too.
THE ACCUSED: Thank you.
THE COURT: Do we want to deal with that now, Mr. Myhre, or while, if you wouldn't mind, Mr. Fox, to deal with issues one by one and that's --
THE ACCUSED: Sure.
THE COURT: -- probably easier.
MR. MYHRE: My Lady, the thing that comes to mind with that is one of the examples the Crown cites of threatening conduct by Mr. Fox is posting the pictures of {SC*****} that Ms. Capuano perceives as threatening to {SC*****}, and he's not directing any statement to Ms. Capuano or to {SC*****}, but it is conduct on his part that could be interpreted as designed to instill a sense of fear.
THE COURT: I see. Would it help solve the problem, Mr. Fox, and would it conform with your understanding of the law, Mr. Myhre, if I were to revise that slightly. The first line would stay the same [as read in]:
Threatening conduct is conduct directed at Ms. Capuano and her family that was used as a tool of intimidation toward her...
And I would add that in:
... and was designed to instill a sense of fear in her.
As it now reads. Would that help, Mr. Fox?
THE ACCUSED: Yes, yes. I believe that would, yeah, it would be directed at the issue.
THE COURT: And that's agreeable, Mr. Myhre?
MR. MYHRE: Yes, My Lady.
THE COURT: Thank you. All right.
THE ACCUSED: While we're on the topic of threatening conduct in that just little paragraph though, Mr. Myhre did bring up just a moment ago something that I guess would be a bit of concern for me. On -- when trying to determine or prove that something was threatening conduct, is it the -- the perception of the person being threatened that's relevant or the intention of the person who is allegedly threatening is relevant? I believe it's the intention of the person who's allegedly threatening, right, if his intention was not necessarily how the other party perceived it.
THE COURT: I think it's both.
THE ACCUSED: Hmm.
THE COURT: It's the -- the intent of the person doing the act is implicit in directed at Ms. Capuano and her family and implicit in designed to instill a sense of fear.
THE ACCUSED: Right.
THE COURT: And the understanding of the other person is implicit in what I've said at paragraph 88, conduct is threatening only if a reasonable person in the same circumstances would find it threatening.
THE ACCUSED: Now, there are some circumstances in this case, some of the emails, for example, some of the communication where statements that I made were certainly not intended to be threatening at all, for example, referencing as to my PAL, Mr. Myhre might argue that she felt threatened or intimidated by it, so is it threatening conduct simply because she misinterpreted something or? My understanding of the threatening conduct is that there also must be an intent on the part of the person engaging in that conduct. I mean, otherwise -- otherwise, I think that there's a lot of room for potential abuse there for people to...
THE COURT: All right. I understand your concern, and I will revise either this passage here or I will say something when I'm doing the description of the position of the defence to say that it's -- essentially it's the position of the defence that, on the face of the communication itself, the reasonable inference is that it was intended simply as information, not threatening, and that Ms. Capuano's interpretation of it as a threat is not a reasonable one or something along those lines. All right.
THE ACCUSED: In paragraph 89, on the same page, the second to last line that starts with the word ship, referring to shipped firearms from Burnaby to Los Angeles.
THE COURT: Ah, I might want to put those two lines, that entire sentence in a slightly different way.
THE ACCUSED: If it helps at all, there's no dispute that I certainly caused or sent my firearms to Los Angeles.
THE COURT: What would you prefer that that say?
THE ACCUSED: I think sent would be the most generic.
THE COURT: And you're prepared for it to say that you sent the firearms or would you like it put in a more neutral way that you must not take into account the evidence about firearms being found in Ms. {M*****}' residence or something along those lines in Carson, California?
THE ACCUSED: I would think for the purposes of the s. 93, just changing the ship to sent should be probably sufficient. I mean, unless you'd rather go with the other [indiscernible].
THE COURT: All right. Thank you.
THE ACCUSED: And if at any point you would like to break for lunch, I have no issue with that.
THE COURT: All right. Okay. Let's see how we do --
THE ACCUSED: Sure.
THE COURT: -- and see how many more points you have to make.
THE ACCUSED: In paragraph 90, and, sorry, there was just a lot that were clustered in this one area, but in paragraph 90, the third to last line, it says "constantly referring to her website." My concern is with the use of constantly because, as far as I know, there was only two or three references in the emails to the website and, given that there were literally hundreds of emails, I -- that might give the wrong impression.
THE COURT: All right. I'll take that out.
MR. MYHRE: I'm sorry, what paragraph was that?
THE ACCUSED: Oh, that was paragraph 90, third to last line.
THE COURT: All right.
THE ACCUSED: Also in paragraph 90 on page 21, on the next page, the first line "an email saying Mr. Fox was willing to shoot", the email in quest -- well, not just in that email but in the entire universe throughout my entire life I've never stated that I was willing to shoot Ms. Capuano. The word that was used was that I would have no qualms of shooting Ms. Capuano. Maybe an --
THE COURT: Shall I change it to that?
THE ACCUSED: Maybe, please, if you don't mind?
THE COURT: Yes.
THE ACCUSED: In that same sentence it says also "except for the risk of being caught". Now, in that email though that wasn't the only qualifier that was used, I also said that shooting someone would be illegal and immoral, and so even -- even if there wasn't a risk of being caught, I was still saying the fact that it's immoral would prevent me -- would prevent me from doing that.
THE COURT: All right. I'll make a revision.
THE ACCUSED: Thank you. And then page 23, paragraph 107, the last line, "taking his email about wanting to shoot her' and word wanting there, maybe change that also to having no qualms about it because certainly I would not want to shoot Ms. Capuano, unless of course it's self-defence, but...
THE COURT: All right.
THE ACCUSED: On page 24, paragraph 112, the term psychological or emotional security or wellbeing is used there, and you may recall in the past I had expressed the concern about the uncertainty of those terms. Maybe because I'm not from Canada, those terms are unclear to me, but what -- do we believe that this is -- that these are concepts or words that the jury would have a fair idea on or?
THE COURT: Well, they are words that are used in the case law.
THE ACCUSED: Right.
THE COURT: I think it was at this paragraph that Mr. Myhre suggested, yes, it was, that I --
THE ACCUSED: Yeah.
THE COURT: -- add something along the lines of it's not necessary for there to be ill-health or a major disruption to life, and I could add something like "so long as the fear is not of trivial harm" or something like that.
THE ACCUSED: Hmm. Okay.
THE COURT: And, Mr. Fox, I know you're going to want the same change about having no qualms --
THE ACCUSED: Right in 113.
THE COURT: -- in paragraph 113.
THE ACCUSED: Also on that same line it states "if the risk was removed," could we mention also about if, if it was also not immoral?
THE COURT: And did the email say illegal as well?
THE ACCUSED: I have a copy of it here, but I'm quite certain it did. It would be illegal and immoral and could result in one spending the rest of their life in prison, I believe is how it's phrased. Yes.
THE COURT: All right.
THE ACCUSED: Page 26, paragraph 119, on the fourth line again it makes reference to Mr. Fox shipped his -- shipped the firearms.
THE COURT: Yeah, sent.
THE ACCUSED: Thank you. On page 27, point 3, I actually had the same concern that you had brought up about if those two points should possibly be separated. But additionally I believe the way it's phrased "while they were transported from his residence to the Packaging Depot" seems to be somewhat suggestive that -- that going to that aspect has been conceded to.
THE COURT: "While they travelled"?
THE ACCUSED: Oh, well, no, what I mean is it's never actually been established the firearms did get transported from my home to the Packaging Depot. That would be one of those --
THE COURT: I see.
THE ACCUSED: -- the that jury would have to determine before they could determine the second point. Oh, until they were released -- oh, yeah, yeah. First they would have to determine that the firearms were actually present at Packaging Depot before they could determine whether they were in my possessions to get there.
THE COURT: All right. So you'd like to see those issues sub -- subdivided out and dealt with as two separate issues?
THE ACCUSED: Well, that -- that would be one way. Otherwise -- otherwise, we'd end up with a compound statement there, right, where they would have to address two points at the --
THE COURT: You're -- you're correct. You're correct. So I'll deal with them separately.
THE ACCUSED: Okay. Thank you.
THE COURT: The only circumstances in which one can essentially compound two issues is if there's really no disagreement that, if one happened, then the other happened, and if --
THE ACCUSED: Right.
THE COURT: -- one didn't happen, then the other didn't happen.
THE ACCUSED: Okay. Let's see, page 29, the same issue of [indiscernible] at the top, possession of his firearms during transport from his residence, etc.
THE COURT: Oh, I'm on the wrong page. I'm sorry.
THE ACCUSED: Oh, sorry, page 29.
THE COURT: So, yes, we need to subdivide the two issues.
THE ACCUSED: And then in paragraph 37 -- [reading quietly]. The second line says "While they were in those places", again that is suggestive --
THE COURT: Well, that is now going to --
THE ACCUSED: Right.
THE COURT: -- that paragraph is going to have to now come under a fourth issue.
THE ACCUSED: Right, right.
THE COURT: And the jury will only get to that fourth issue if they've found that the firearms did go to the Packaging Depot.
THE ACCUSED: In paragraph 139, there is some clarification of what's meant by possession, and I guess this stems from the discussions that were had yesterday and the day before. However, the way it's raised, it seems to suggest that the firearms would be in my possession even if they were still at home at that time because technically, if I have them at home, they're still under my control and I have access to them.
THE COURT: Well, they would be in your possession.
THE ACCUSED: Right.
THE COURT: But you wouldn't be committing an offence because you're authorized to have them at your home.
THE ACCUSED: Hmm, yes, that's true. Okay. Paragraph 140, it's just the same issue about "while they were transported to the Packaging Depot" which presumably that will all be changed when it gets split into the two. And at the end of paragraph 140, where it talks about Agent Spizuoco's testimony, one admission that was left out that I'm hoping could be added in is his admission that he has no knowledge of whether or not I was present at Ms. {M*****}' place while the box was there. Cleary the suggestion there is that I may have brought the guns down and then put them into that box after that -- after they were delivered.
THE COURT: Whether or not you were present at Ms. {M*****}' residence when?
THE ACCUSED: Well, I didn't state --
THE COURT: When?
THE ACCUSED: -- present at her residence, but present in the U.S. Between the time that -- well, I believe I phrased it as before he seized the boxes. It would have to be before he seized the boxes because I was in custody by then.
THE COURT: Let me just check his evidence. I don't have a note of you asking him anything about whether you were in the U.S.
THE ACCUSED: It was after we stood down because I had a question, and then when we came back I asked him two follow-up questions, one about the ammunition, if they were all different calibres.
THE COURT: Oh, yes, I have it there, thank you.
THE ACCUSED: Okay.
THE COURT: In or around Los Angeles
THE ACCUSED: Oh, okay.
THE COURT: But since I've been talking about Carson, perhaps we'll just say in California?
THE ACCUSED: Sure. If it helps at all, Carson is a suburb of Los Angeles.
THE COURT: The jury might not know that.
THE ACCUSED: Right.
THE COURT: All right. Thank you.
THE ACCUSED: And finally paragraphs 141 and 142 again say "while they were transported to the Packaging Depot" or while they were in, etc. And that's all.
THE COURT: Sorry, what's your issue with those?
THE ACCUSED: Oh, they say "while they were transported to Packaging Depot" again, there the suggestion from that would be that they were actually transported --
THE COURT: I see.
THE ACCUSED: -- which would mean one --
THE COURT: But if we split the issues --
THE ACCUSED: Right.
THE COURT: All right.
THE ACCUSED: And I apologize for being so picky.
THE COURT: This is very useful, a very useful process. Mr. Myhre, anything further? We can certainly come back to it. It's not now or never.
MR. MYHRE: I wouldn't mind having a chance to reflect on the issue of putting threatening conduct to the jury.
THE COURT: All right.
MR. MYHRE: I might -- as we reviewed it again, I did just note one thing, though, in paragraph 87, the threat must be intended or that "the threat was intended to be taken seriously," the case law suggest that it's "intended to intimidate or to be taken seriously," and I think those are -- that's an important distinction or an important area.
THE COURT: Well, this paragraph is trying to talk about how much conduct does there have to be in order for it to amount to threatening conduct, and it says it doesn't have to be repeated, but it has to be meaningful, essentially, taken seriously, or intended to be taken seriously.
The earlier discussion has tried to talk about the character of threatening conduct used as a tool of intimidation, designed to instill a sense of fear. I don't disagree with the notion that the threat as defined in the case law to -- as being something intended to intimidate or to be taken -- well, to be taken seriously speaks of the magnitude, not the character of what is said or done.
If your concern is that the idea of the threat being an intimidating act or words, doesn't come through, there may be a better way or expressing that in this draft or somewhere else. I'm not sure that it goes there, but I'll think about it and perhaps you would, too. Mr. Myhre.
We should break for lunch. We've got Ms. Clancy's application at 2:00, and after that we can certainly come back to the draft, and there'll be further opportunities clearly, I would think, I'll be making revisions after the closing addresses are done, but the more we can get settled ahead of time, the better.
All right. Thank you.
THE CLERK: Order in court. This court stands adjourned until two o'clock p.m.
(PROCEEDINGS ADJOURNED FOR NOON RECESS)
(PROCEEDINGS RECONVENED)
THE COURT: All right. Are we dealing with Ms. Clancy's application now?
THE ACCUSED: I believe so, yes.
THE COURT: Is there anything else that should be dealt with first?
MR. MYHRE: I do have a response to that one issue on the charge so whatever order Your Ladyship wants to do this.
THE COURT: Perhaps while that's in everyone's minds before we switch gears.
MR. MYHRE: My Lady, my comments are very simple. After reflecting on it and discussing it with one of my colleagues, it does seem to me that both modes should be left in the charge simply because we could -- the jury should have both modes because they don't have to pick one. There is also, you may recall, I mentioned that --
THE COURT: Because they don't -- I'm sorry? I missed that?
MR. MYHRE: Just because some of them could say, well, look, this is a lot of communication, some others might say, well, look, that's not really that much, I mean, if they were in a custody dispute, but that same person might perceive some of it to be threatening conduct.
THE COURT: I see.
MR. MYHRE: There is also the issue of -- I think the only one that couldn't be said to be repeated communication would be posting pictures of {SC*****} on the website and that's debatable, I think, because of Mr. Fox referring her to the website, but in any event...
THE COURT: All right. Thank you. So I'll leave both modes and, Mr. Fox, there were a number of comments you had that related to the second mode, and the description of it, and I'll make the changes that -- to that section that I indicated I was going to make.
THE ACCUSED: Thank you.
THE COURT: Anything else on the charge at this time? As I said, it's not now or never. You can continue to make comments as things occur to you. The important thing is to get it right, and make sure it's balanced and fair.
THE ACCUSED: There is nothing further from me, My Lady.
THE COURT: All right. Thank you. Ms. Clancy's application then.
NATALIE CLANCY: My Lady, I've put out our arguments in a -- in a letter to you, in a brief. We rely on several cases, including the Dagenais case and the Dagenais test.
THE COURT: Right. You're -- you're Ms. Clancy, I take it?
NATALIE CLANCY: I'm Ms. Clancy. I should have introduced myself
THE COURT: All right.
NATALIE CLANCY: With the Canadian Broadcasting --
THE COURT: Mr. Myhre is going to be responding and Mr. Fox, as well. I have a notice of application which has some legal principles attached. It's not very specific about what it is you're seeking. In one area it says "access to exhibits, including any video, photographs, audio and documents" at the end of the trial, and in the other it says, the other area it seems to confine itself to firearms, any photographs or video involving the firearms.
SUBMISSIONS RE MEDIA FOR CBC BY NATALIE CLANCY:
NATALIE CLANCY: Yes. Very specifically, it's standard in a case like this, and many others for us to seek access to exhibits to examine them to see them, and then chose what to photocopy. In this case, I have volumes and volumes off the website and the information already, and I've had that since for more than a year now.
But there are aspects of this case that are new and came out at trial, and we intend to do an explanation of this case a little after, so the photographs and video having access to electronic copies of that would be most helpful. I know in other cases we've been just granted access to exhibits to go look through them and choose what we need to make copies of for the future.
In this case, we're very specifically asking for electronic copies of any photographs, particularly in relation to the ATF witness, and any other photographs in the case, and video, of course, but I don't believe there's been video.
THE COURT: All right. I'm still not completely understanding what you're asking for and I -- that part of the reason for that is that what you're saying is a little bit inconsistent, as I understand it, with what Ms. Brend said this morning, which was that you were seeking access to all the exhibits except -- I pointed out to her that there are a few that relate to juror issues that were sealed, and she said not interested in those.
NATALIE CLANCY: We have no interest in that, just evidence that the --
THE COURT: All right.
NATALIE CLANCY: -- jury would have heard that would have helped them make their decision. In the past in cases like this we've gone downstairs and they've let us have access to a box, and we have taken photographs of things we wanted or chose to photocopy things we wanted.
THE COURT: All right.
NATALIE CLANCY: In this case, there's specifically, I'm aware of, photographs that were shown to the jury and ideally in this modern age getting an electronic copy is certainly much better than a photocopy, if there's a way that Your Ladyship could order an electronic copy be shared with me, that would be ideal.
THE COURT: I don't have an electronic copy, and I don't think the court has, but --
NATALIE CLANCY: The Crown does.
THE COURT: Well, that's the Crown.
NATALIE CLANCY: If it's a paper copy that I could digitally see and take a photo of that, would suffice.
THE COURT: So you're interested in the books of material that are taken from the website that's involved in this case?
NATALIE CLANCY: No, I would be interested in the book of material that Mr. Fox provided where he has provided other parts of emails that weren't in the blue book as part of his defence. There was a second black binder that I didn't have, that he submitted to the court that had different parts of -- of what was posted online, so that would be, if I had access to it, I would choose to photocopy that document.
The big binder I wouldn't because I already have that material.
THE COURT: All right. So, you're not seeking the Crown book of excerpts from the website.
NATALIE CLANCY: I --
THE COURT: Exhibit 2 --
NATALIE CLANCY: -- I think what Ms. Brend was trying to say is ideally we would like access to all exhibits so we could go look through them, and give them back to the court, and we can select to be photocopied. That's our ideal position, but -- and specifically we would like that and we would like to have access to electronic photo -- electronic access to photographs, if that's possible.
THE COURT: So ideally you would like to see all of the exhibits except the sealed ones.
NATALIE CLANCY: Yes.
THE COURT: And --
NATALIE CLANCY: And the opportunity to photocopy selectively as set out in my -- my brief.
THE COURT: Can you show me where it says that because I just --
NATALIE CLANCY: It's just there's case law that says we had -- it -- it is part of --
THE COURT: No, I -- I'm not getting to the point at which you support your application, but just to know what the application is.
NATALIE CLANCY: What it is?
THE COURT: So, can you --
NATALIE CLANCY: So, if I clarify, we'd like access to all exhibits, excluding anything that's sealed, and if there was a way Your Ladyship could order electronic access to photographs, that would be ideal or even okaying the Crown to provide the electronic version of photographs. A lot is missed when you try to photocopy a photograph. And they only have a black and white copier downstairs, so a lot of the meta data, a lot of the information is missed if we just photocopy it.
THE COURT: I have a colour photo -- photocopier.
NATALIE CLANCY: Well, when we go downstairs, and have access to exhibits and copy, they only have a --
THE COURT: Oh, I see.
NATALIE CLANCY: -- black one.
THE COURT: I see.
NATALIE CLANCY: In a recent application in December the Crown did order and we did get a coloured copy by order, by specific order in another matter.
THE COURT: And are you seeking access to the audio recording of a police interview with Mr. Fox?
NATALIE CLANCY: Yes.
THE COURT: And I'm just looking on the exhibit list to see what else there is. All right. That's helpful, thank you, and what I'd like to do next is ask each of Crown counsel and Mr. Fox what their position is concerning your application, and then we'll go from there. Is there somewhere Ms. Clancy can sit at the front of the courtroom?
SUBMISSIONS RE MEDIA FOR CROWN BY MR. MYHRE:
MR. MYHRE: My Lady, I have thought about it over the last few hours, and I maintain the position I stated this morning. The Crown doesn't have any opposition to Ms. Clancy having access to any of those materials. I don't think Your Ladyship would need to go so far as ordering the Crown to provide digital copies.
The Crown wants to be sure that the court is aware of and controls the exhibits, but if Your Ladyship grants access to Ms. Clancy, I'm happy to email her digital copies of those particular photographs that were in the ATF exhibit.
THE COURT: All right. And have you considered what I raised earlier about the fact that the jury has not yet been asked to determine whether the body of material in the Crown book, together with some other alleged conduct, amounts to criminal harassment?
Now, I appreciate Ms. Clancy is not seeking that material in the Crown book, but she is seeking access to material in the defence book and some of that is similar material, defence binder, I should say. Have you considered that, Mr. Myhre?
MR. MYHRE: And do I have -- Your Ladyship is wondering whether I've thought about the fact that, you know, the Crown is saying that this, along with everything, amounts to harassment, has the Crown thought about whether promulgating that or allowing it to be further put out there would just perpetuate the harassment?
THE COURT: Yes. And the court would be in effect, if it is harassment, and if the defence binder is of a similar -- has content of a similar nature, is the court somehow implicated in furthering a criminal harassment, if it releases material intended for publication? There may be a couple of ifs in there that aren't accurate, but Ms. Clancy can correct me.
MR. MYHRE: My Lady, I think those considerations are the same as the ones that went into the Crown inviting the court to lift the publication ban. There's certainly a concern for Ms. Capuano's privacy but Ms. Capuano is content to waive that because she wanted other people to know that this sort of thing was unacceptable, and the fact is the website is out there. The website includes, and Mr. Fox can correct me if I'm wrong, but it includes the defence book, everything in the defence book, as well.
THE ACCUSED: That is correct, yes.
MR. MYHRE: And the only thing I think the media or CBC or Ms. Clancy would be doing with it would be putting that in the context of other evidence that was heard in the case, and so I don't have any concerns about perpetuating harassment by releasing the exhibits.
THE COURT: Thank you. Mr. Fox?
SUBMISSIONS RE MEDIA FOR ACCUSED BY PATRICK FOX:
THE ACCUSED: I have no opposition to the request, and just as Mr. Myhre, if there's anything that I can do to assist, I'd be more than happy to provide any electronic copies of any photographs or documents or anything else that she would like.
THE COURT: All right. And, Mr. Fox, you said this this morning, and I want to make sure it's still the case, and also Ms. Clancy is now present, are you content that she have a copy of the audio recording of your police interview?
THE ACCUSED: Yes, I am.
THE COURT: All right.
THE ACCUSED: For that matter, she may have a copy of both of my RCMP interviews if she would like. There was one in 2015 and then another in 2016.
THE COURT: Well, I'm not sure that the other one was the subject of an exhibit.
THE ACCUSED: Right, right.
THE COURT: All right. Ms. Clancy, I'm content to make the order that you're seeking. I think we are going to have to go back over it a little bit more precisely so that it's clear for Madam Registrar, and it might be the -- the best way of doing that might be for us to go exhibit by exhibit number.
Well, perhaps that's not necessary because the one exhibit you're not seeking access to is Exhibit 1, that's the Crown --
NATALIE CLANCY: If it makes it easier, My Lady, we would like to have access to all of it. I could look through in case there's something I'm missing. I have a large volume of material on this file prior to there being a court case, so if it makes it easier, we are seeking access to all. I just know that's not what I'm going to be photocopying. If it makes it easier, we'd like access to all of those exhibits.
THE COURT: I suppose I would prefer to make the order in the most restrictive way that conforms to what you're seeking, so that it isn't automatically repeated in the case of another applicant, for instance, who may be in a different situation at a different stage of the proceedings. So I need to think ahead to that possible situation.
NATALIE CLANCY: And I also should clarify I'm not seeking access to these exhibits to do anything with them before this jury is sequestered. I'm happy to wait until a time of your choosing, if it's next week. I'm not in a rush to -- to do anything with these exhibits publicly until after this case is finished. So we're in absolutely no rush.
THE COURT: Yes, that should certainly form part of the --
NATALIE CLANCY: And I work in a unit that's mandate is to only do stories in the public interest with journalistic discretion, and I take the concerns about perpetuating any future harassment of this lady or this woman.
THE COURT: Thank you. So the order I'll make and I -- I'll say this, and then if it causes any concern to any of you, you can let me know and we can revise it as necessary.
Is that there will be access in the sense of the ability to look at all of the exhibits except the sealed exhibits, and I think I'm correct in saying that all of the sealed exhibits relate to matters concerning individual jurors, mostly at the jury selection, that were clearly private.
And in addition, Ms. Clancy will be permitted to make copies of -- I suppose it's all of the exhibits except Exhibit 1.
And should this be confined, Mr. Myhre, and Mr. Fox, to numbered exhibits rather than lettered exhibits? The lettered exhibits have not gone and will not go to the jury, and they include things like some of the juror notes concerning juror's individual situations, they include the draft of the proposed charge that we were talking about this morning, they include a written copy of the opening instructions given to the jury at the beginning of the trial. Do you wish to see those, copies those?
NATALIE CLANCY: No.
THE COURT: No. All right. So we'll say the numbered exhibits, this order relates to numbered exhibits. And does that do it, access to all of them, ability to make copies of all of them except Exhibit 1?
NATALIE CLANCY: Perhaps just a matter of when.
THE COURT: Access, I would think whenever -- essentially at your convenience when the registry can conveniently accommodate you, on your assurance that there'll be no publication until -- I would suggest it'd be the jury's rendered a verdict --
NATALIE CLANCY: Absolutely.
THE COURT: -- in case there's a jury who's unable to render a verdict. Now, is any of that cause any concern, does anything need to be clarified, added, changed? Mr. Fox?
THE ACCUSED: I have no concerns.
THE COURT: Mr. Myhre?
MR. MYHRE: Me neither, My Lady.
THE COURT: Madam Registrar?
THE CLERK: No, I'm fine, My Lady.
THE COURT: Ms. Clancy?
NATALIE CLANCY: Thank you, My Lady.
THE COURT: All right. Thank you.
Now, Mr. Sheriff advised me that the juror will be getting medical attention this afternoon, and would telephone immediately afterwards. I'm thinking that it's quite likely that I may suggest that we simply put the next steps over to Monday and Tuesday because, at the very best, we could be -- if we don't do that, at the very best we would be doing closing addresses tomorrow, Thursday, and the charge on Friday morning, and as I think I said this morning, that's not an ideal time to be charging the jury and asking to start their deli -- asking them to start their deliberations.
Do you have any preliminary thoughts about that, Mr. Myhre? Well, perhaps I don't need any submissions on that now. I suggest that we stand down, hope to hear from the sheriff in an hour or so, and then we go from there.
THE ACCUSED: Go ahead.
MR. MYHRE: My Lady, I was just going to suggest maybe I could leave my direct line with Madam Registrar and she could give me a call if we have an update on the juror.
THE COURT: Yes, please.
THE ACCUSED: I just wanted to make sure that I'm clear, so we're suggesting that I would just stay at the courthouse and then wait to see if we hear back from --
THE COURT: Yes.
THE ACCUSED: Okay.
THE COURT: Yes, and then once we know what the diagnosis/prognosis is for the juror, then we can make a decision about next steps.
THE ACCUSED: Okay.
THE COURT: It may become more clear what the obvious thing to do is once we know a bit more about the juror's situation.
THE ACCUSED: Okay.
THE COURT: All right. We'll stand down.
THE CLERK: Order in court. This court stands down.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
THE COURT: I understand that the juror has had medical attention and has been told that he may feel well enough and be fit enough to continue tomorrow, but that there is no way of knowing until tomorrow. So, it would have to be a case, excuse me, of wait and see until tomorrow.
Tomorrow is Thursday, so even if the juror is fit and better tomorrow, the best we would be able to do would be closing addresses tomorrow, Thursday, the charge on Friday, and we face the problem that we're then charging the jury before a weekend, and a sunny one as well from the looks of it.
The other possibility is that the juror will not be better tomorrow and we'll be adjourning things once again, and inconveniencing the 11 who have come. It sounds as close to for sure as one can be that the juror will be better by Monday. There's never any knowing if someone else will be ill by Monday, but I'm thinking the best approach might well be to adjourn everything over to Monday. I'm assuming in this that, well, perhaps I shouldn't make that assumption. Another possibility would be to have the closing on Friday, then the charge on Monday. Then there's a gap of time, the weekend, after you've each made your closing addresses and you may not wish to have the jury go away having heard your closings, and spend two full days away from the case.
Mr. Myhre?
MR. MYHRE: I'm content to proceed in the first way you suggested.
THE COURT: Go till Monday?
MR. MYHRE: Just because it provides certainty rather than everybody getting geared up for tomorrow and --
THE COURT: There's never any complete certainty because one never knows, but, Mr. Fox?
THE ACCUSED: I am open to either, though I would prefer whatever would be the least inconvenience for the jurors.
THE COURT: Well, one thing to take into account, as well, is that this juror -- jury was told this would be a three-week trial.
THE ACCUSED: Right.
THE COURT: And we're not even at the end of week two, so it's not as though we're asking them to give an additional week.
THE ACCUSED: Hmm.
THE COURT: They may have -- now, we did tell them earlier in the week that that they would likely be deliberating by tomorrow, but if you go back to the beginning of the trial, they were asked to be available for three weeks. So really we're reverting to that timeline.
So, I'm inclined to do that. We will ask the sheriffs to make 12 phone calls and let all of the jurors know that they are now asked to come on Monday morning at the usual time, please.
THE ACCUSED: And that's for the closing addresses?
THE COURT: Closing addresses and then deliberations would be Tuesday. Thank you for raising that. They'll want to know that. And I'm sure the sheriffs will as well.
Is there anything else we need to deal with between now and Monday morning?
MR. MYHRE: Might I just ask Mr. Fox something, My Lady?
THE ACCUSED: My Lady, when I was downstairs earlier, I was re-reading R. v. George about threatening conduct in the context of criminal harassment. Because of the uncertainty about if it's supposed to be determined from the perspective of the complainant or of the accused, and what it seems to me in here is that it's supposed to be evaluated from the perspective of the accused, the intention of the accused, first, and then once that's met as it being prohibited conduct, then the perspective or the subjectivity of the complainant is supposed to be taken into account. And so I'm wondering if maybe we could word that into the charge when we talk about the -- the threatening conduct? Is that right or not? It makes reference to, was it in Croft [phonetic]?
My understanding of it would be that first there has to be an objective determination that the complainant intended to have that effect, that intimidating or threatening effect. Once that's determined, then you would look at whether the complainant was intimidated by it.
MR. MYHRE: It seems to me they both need to be there and I think that's clear in the charge.
THE ACCUSED: Both? Sure, both can be there. I guess it doesn't matter which order you evaluate them in, either way they would have to determine that I intended her to be threatened or intimidated.
THE COURT: All right. Thank you. I will be -- in fact, I've started revising that portion, and I will keep in mind the concern you've just raised, Mr. Fox. Anything else?
THE ACCUSED: Not from me, My Lady.
THE COURT: Mr. Myhre?
MR. MYHRE: No, My Lady.
THE ACCUSED: Did you want to -- you didn't want to mention that about [indiscernible] just in case, I don't know, if there's a possibility it might occur?
Earlier today Mr. Lagemaat came to speak with me downstairs and there was some brief talk of the possibility of maybe him taking over the case, the remainder of the case or some of the closing arguments, but it was just a very brief mention, and so I'm just bringing it to the court's attention that there is a possibility that that might occur.
THE COURT: All right.
THE ACCUSED: I mean, he's certainly very familiar with the criminal -- criminal harassment aspects of the case, and the firearms charge, he's not very familiar with, but I think that's a very small part of the case, but I will certainly keep you apprised of any changes or decision making of that effect.
THE COURT: If -- if -- hmm, when do you expect you would know that, Mr. Fox?
THE ACCUSED: Sorry, I couldn't say. I mean, at this point there's nothing definite anyway, and so I would say at this point most likely it's not going to happen. I mean, I don't know if it's conducive with his schedule or if he's really even particularly interested in it. He did express some interest, but I would need to speak with him further.
THE COURT: If he is to come in as counsel, then he may see himself having a role in reviewing the charge, for instance, making submissions, further submissions on your behalf, and well, you might want to do that Thursday or Friday if --
THE ACCUSED: One thing I had --
THE COURT: -- I suppose there's always Monday afternoon, isn't there?
THE ACCUSED: One thing though that I can assure both the court and Mr. Myhre of is that, if it would cause any kind of delay, then it's not going to happen. So it would only happen if it wouldn't delay anything.
THE COURT: Well, thank you for advising that it's a possibility. And if -- if it does come to pass, then, as I think on it, we will have Monday afternoon most likely to discuss any consequence that that may have for the content of the charge or anything else. Anything else before the end of the day?
THE ACCUSED: No, My Lady.
MR. MYHRE: No, My Lady.
THE COURT: If something comes up tomorrow or Friday that needs to be addressed, kindly contact the scheduling and we'll arrange some sort of hearing.
THE ACCUSED: I would have no idea how to do that.
MR. MYHRE: You can contact Mr. Lagemaat to contact me or --
THE ACCUSED: Mm-hmm.
MR. MYHRE: -- you could send you me fax [indiscernible voice low].
THE ACCUSED: Okay. I don't anticipate anything will come up though in the -- on my end.
THE COURT: All right. Thank you.
THE ACCUSED: Thank you, My Lady.
THE CLERK: Order in court stands adjourned to Monday morning at ten o'clock a.m.
(PROCEEDINGS ADJOURNED TO JUNE 26, 2017, AT 10:00 A.M.)
Transcriber: C. Banks