Legal Shit

Recent Posts

Popular Posts

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

R. v. Patrick Fox - Trial Transcripts

Highlighting Legend
Perjurious testimony which defense counsel (Tony Lagemaat) and Crown Counsel (Mark Myhre) knew of
Critical statements - e.g. inciminating admissions
Statements of interest - e.g. testimony which Lagemaat should have known to pursue further or cross examine on, but didn't
Click on any highlighted text to display the associated comments/annotations.
27178
Vancouver Registry
In the Supreme Court of British Columbia
(BEFORE THE HONOURABLE MADAM JUSTICE HOLMES AND JURY)
Vancouver, B.C.
June 26, 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 26, 2017
REGINA

v.

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

INDEX

  • CLOSING ADDRESS FOR CROWN BY MR. MYHRE:3
  • CLOSING ADDRESS FOR ACCUSED ON COUNT 1 BY MR. LAGEMAAT:39
  • CLOSING ADDRESS FOR ACCUSED ON COUNT 2 BY PATRICK FOX:67

EXHIBITS

  • MARKED I FOR IDENTIFICATION: Proposed verdict sheet for jury39
  • MARKED J FOR IDENTIFICATION: Document titled "Final Instructions to the Jury" (revised)70
  • MARKED K FOR IDENTIFICATION: Missing portion of Charge relating to Crown and defence positions72

RULINGS

  • Nil
(Jury Out)
Proceedings

BAN ON PUBLICATION - INHERENT JURISDICTION


Vancouver, B.C.
June 26, 2017

(JURY OUT)
THE CLERK: In the Supreme Court of British Columbia, at Vancouver, this 26th day of June, 2017, calling the matter of Her Majesty the Queen against Patrick Henry Fox, My Lady.
THE COURT: Yes.
MR. MYHRE: My Lady, I think there are just a couple of housekeeping things quickly before we get going.
MR. LAGEMAAT: Yes, My Lady, I'm now counsel for Mr. Fox. We will be dividing up the closing. I will be covering the harassment charge, Mr. Fox will cover the firearm charge.
THE COURT: All right.
MR. LAGEMAAT: And one -- one issue I can see arising from that would be if the jury has questions during deliberation, I would be called back if it's to do with the harassment. If not, it would be Mr. Fox answering the question if it's to do with the other count.
THE COURT: I would think you would need to be available during the deliber --
MR. LAGEMAAT: Yes, I will be available regardless throughout deliberation, and perhaps if -- if -- if you prefer, I could answer questions on the other charge, but I would have to consult with Mr. Fox because, as you're aware, I wasn't here for that evidence.
THE COURT: Well, maybe we'll -- as long as you're available, perhaps the best approach is we deal with it --
MR. LAGEMAAT: Yes.
THE COURT: -- as it arises.
MR. LAGEMAAT: I agree.
THE COURT: Have you spoken with Mr. Myhre about this arrangement?
MR. LAGEMAAT: Yes, I have. I actually proposed it to him before accepting the retainer to see if there was going to be any opposition.
THE COURT: And obviously no, Mr. Myhre?
MR. MYHRE: Right.
THE COURT: And how -- are you ready to proceed this morning?
MR. LAGEMAAT: Yes, I am.
THE COURT: And do you -- you may be aware that Mr. Myhre and Mr. Fox have been reviewing a draft of the charge that I've prepared. Is that something that you wish to have some involvement with?
MR. LAGEMAAT: I -- I've reviewed the charge, and I -- I have no issues with it. It's sufficient.
THE COURT: All right. I think perhaps what we'll do then is if everyone is ready, we'll continue on. Are you, when we get to the defence closings, have you worked out an order and a rough timeline?
MR. LAGEMAAT: I would like to go first on the harassment charge, and I don't expect to be more than 30 or 40 minutes, and I don't know how long Mr. Fox plans to be on the other count.
THE ACCUSED: I wouldn't anticipate more than 15 minutes.
THE COURT: All right. So that doesn't upset the rough timeline we had in mind. Mr. Myhre, anything from you with respect to this?
MR. MYHRE: My Lady, I do think I will be about an hour and a half. My preference, subject to Your Ladyship's direction would be to take a break after roughly an hour. I think that I'm going to need one partly due to the amount of coffee I've consumed this morning, but also to give the jury a break after listening to me for an hour.
THE COURT: All right. Then we'll do that. Do you want to keep an eye on the clock and let me know when a good time is somewhere around 11:00 to -- to break or perhaps a little bit after 11:00?
MR. MYHRE: Yes, thank you.
THE COURT: Anything else we should --
MR. MYHRE: No, My Lady.
THE COURT: -- deal with? You're ready to go, Mr. Myhre?
MR. MYHRE: Yes.
THE COURT: Mr. Fox, all of that accords with what you had in mind for today as well?
THE ACCUSED: Yes, My Lady.
THE COURT: All right. And Mr. Myhre, where will you be speaking from?
MR. MYHRE: My intention is to speak from here, My Lady.
THE COURT: I see. All right.
MR. MYHRE: And maybe --
THE COURT: Now --
MR. MYHRE: -- should we confirm that this is being picked up by --
THE CLERK: It is.
MR. MYHRE: Thank you.
THE COURT: Mr. Fox, does that cause you any concern, you're not able to see all of the jurors with Mr. Myhre standing there?
THE ACCUSED: I'm okay with it. It's not ideal, but I guess I could always move around him.
MR. MYHRE: I wouldn't be opposed to Mr. Fox sitting in my chair while I'm --
THE COURT: Does that cause you any concern, Mr. Lagemaat?
MR. LAGEMAAT: No, My Lady.
THE COURT: All right. Mr. Fox -- and Mr. Sheriff, it doesn't cause you any concern?
THE SHERIFF: [No audible response].
THE COURT: Then if you wish to move over now, you could do that, or. Mr. Fox, when the jury come in, they will probably notice that Mr. Lagemaat is here. Shall I tell them that he will be making some of your closing address?
THE ACCUSED: Yes, I -- I would have you tell them.
THE COURT: All right. All right. So we're ready. Please.
THE SHERIFF: The jury, My Lady.
(JURY IN)
THE COURT: Good morning, members of the jury. Before we start with the closing addresses, just to explain to you that, as you probably noticed, Mr. Lagemaat is back in the courtroom. When we get to the defence closing addresses, Mr. Lagemaat will be making Mr. Fox's closing address concerning Count 1, and Mr. Fox will be making his own closing address concerning Count 2.
But first we have the Crown's closing address, Mr. Myhre?
CLOSING ADDRESS FOR CROWN BY MR. MYHRE:
MR. MYHRE: Thank you, My Lady.
Ladies and gentlemen, if you knew that someone hated you so much that they had made it their life's goal to make you miserable, and if they were actually taking steps to accomplish that goal, and day after day and week after week you knew they were out there working on it because they reminded you about it, if you knew that there was a website out there dedicated to that purpose, if they kept reminding you about how effective they were in their efforts to make you miserable, ladies and gentlemen, would you be scared? Would you have concerns for your psychological, emotional and physical safety?
Now, you, of course, are the finders of fact in this matter. It's for you to decide whether Mr. Fox's action harassed Ms. Capuano. It's for you to decide whether her fears that she told you about were legitimate. And my suggestion to you is that the evidence you heard now almost two weeks ago, primarily in the form of Mr. Fox's own words, should lead you to conclude that he has what could be fairly characterized as an obsessive and all-consuming hatred for Ms. Capuano. He would like to see her dead, and he actually did try to make that happen.
He tried to be clever in how he went about it, but he wasn't subtle, and I suggest to you that that's because he thought what he was doing was legal. Unfortunately for him he was mistaken about the law, and what he was doing, in my submission, was quite plainly criminal harassment.
My submissions to this morning will take about an hour and a half, and are divided into five parts.
First, I'll discuss what to make of the evidence that predates the period for which he's charged with criminal harassment on January 11th, 2015, and how you use that to inform your deliberations on whether his conduct from January 11th on constituted harassment.
Second, I'll address how Mr. Fox's conduct fits into the definition of prohibited conduct when it comes to criminal harassment, and I'll suggest to you ten specific categories of his conduct that fall within the definition.
Then we'll talk about the effect that his actions had on Ms. Capuano. To constitute harassment, Ms. Capuano would have to be harassed or tormented, and she would have to have a legitimate fear for her emotional, physical or psychological wellbeing.
And then finally on the harassment charge we'll talk about Mr. Fox's intention shown through his many statements that will show, I suggest, that he was well aware that his actions were harassing Ms. Capuano.
And then finally and somewhat briefly, I'll address the s. 93 charge.
As I make my submissions I'll be taking you through some excerpts from Exhibit 1. Does everyone have their copy of Exhibit 1? Sorry, I should have asked Mr. Sheriff to get that because I think it will be important because we will actually be referring to it.
Pardon me, My Lady, that's an oversight on my part, but could we ask the jury to retrieve Exhibit 1?
THE COURT: Are these copies in the jury room?
THE SHERIFF: [Indiscernible/not at microphone].
THE COURT: All right. What's the best way --
THE SHERIFF: [Indiscernible], My Lady, would be to get them themselves.
THE COURT: All right. Then we'll stand down briefly.
(JURY OUT)
THE CLERK: Order in court.
THE COURT: While the jury is out, I can give you copies of what I propose as a verdict sheet and --
THE SHERIFF: The jury, My Lady.
THE COURT: Oh, I'll do that later.
(JURY IN)
THE COURT: Thank you.
CLOSING ADDRESS FOR CROWN BY MR. MYHRE, CONTINUING:
MR. MYHRE: Now, as I make my submissions, there will be times where I ask you to read emails and there will be other times where I'll just give you a date and a subject line, a reference for you to look up later if you want to get the full context.
And, on that note, I would certainly encourage anybody not to take any of these little excerpts out of context. If you're not sure about the context, by all means, go back and review the entire email.
So, first the evidence predating the charge period. Now, this evidence is relevant to the charge of criminal harassment in this way. It's relevant to understanding how Ms. Capuano and Mr. Fox would have been feeling during the charge period, explaining why they did the things that they did, and understanding what they can be expected to have been aware of at that time.
So, to recap briefly, in 2000 we know that Desiree Capuano and Mr. Fox had a brief relationship, they had a son named {G*****}. And then there's a conflict in the evidence. Maybe Mr. Fox disappeared with {G*****}, maybe Ms. Capuano kind of absented herself from his life for a period of time.
That's not something that, in my submission, needs to be resolved in this case. The truth, I submit to you, is probably somewhere in the middle.
But we do know that in 2011, at Mr. Fox's invitation, Ms. Capuano resumed contact with {G*****}. She learned that {G*****} was living not with Mr. Fox but with a family friend, and then she got nervous about whether he was going to disappear again, so she went and took custody of him. There followed the custody battle.
And then in late 2012 Mr. Fox applied to take {G*****} to Vancouver with him, and suspend visitation with Ms. Capuano. Ms. Capuano told you that she was scared she wasn't going to see him again, and she retaliated by calling the FBI and telling them that Patrick Fox, Richard Riess, was in the country illegally and if they didn't do something about it, she was going to go to the media. And then he was removed from the country two times, he was removed and came back, and he was removed again when she called the FBI again.
And you saw several statements over the course of the trial from Mr. Fox that he feels entirely justified because of those actions on her part to do what he then did over the next two years.
You may recall this statement that he made when he was talking to Constable Potts. He said [as read in]:
She's made it so that I can't even go back and visit friends or family that live in L.A. I can't attend any of our son's school functions like when he graduates and stuff.
That was line 1095 of that statement.
Consider this, ladies and gentlemen. He had already been removed from the country in 2011, that's in his statement at line 1091. He had come back into the country illegally. He was trying to take {G*****} from Ms. Capuano and go to Vancouver. And so, when you consider justification isn't an excuse for criminal harassment, but when you consider that, put those actions in that context.
So then we saw an email in 2013 at tab 9, I'm not going to take you there, and it was generally to the effect of, if she didn't return {G*****} to him, he was going to spend thousands of dollars investigating her, everyone she was associated with, taking her to court, and she would be left with nothing in the end, and she would lose in the end. And he followed that up with another email saying "And I meant it."
So then we jump forward to the spring of 2014 when a colleague of Ms. Capuano's informed her that there was a LinkedIn site in her name saying she was a stripper, suggesting maybe you don't want to put that on your LinkedIn profile. Ms. Capuano went on to discover that that profile had been linked to a number of her work colleagues.
Then there was the March 23rd, 2014 email from Mr. Fox informing Ms. Capuano that he had set up this website, that he had posted private information on it. He taunted her in that email that her colleagues would be looking at it, and joking amongst themselves about what a fool she was, what a terrible parent she was, maybe thinking about her in her underwear.
Mr. Fox, of course, admits that he's responsible for this website, although he was a little coy about it in some of those early emails. You can see that plainly at line 610 of his statement. There's no question that he created this website.
So then April 28th, 2014, and you have the cease and desist email. She asked him quite directly, quite politely to stop. His response to that email, if you go back and look at it, can be characterized as "that's not really harassment." And then on May 2nd there was another email and the tone of that email, I suggest to you, was "and you deserve it."
Then there's a May 22nd email where Mr. Fox waives all rights to custody of {G*****}. In the July 21st email he would tell her "that's just part of my overall plan," but her response to him waiving all of his rights to {G*****}, I suggest to you is quite indicative of the person Ms. Capuano is. She could have then said, "Great, I win, {G*****} stays with me." And of course, we know, you saw the email, that's not what she did. She said "I think it's important for {G*****} to spend time with you."
In the July 23rd, 2014 email Mr. Fox was again explicit about his intentions with respect to Ms. Capuano, and I'm quoting here [as read in]:
I will destroy you slowly and incrementally. Don't think for one second that anything will ever be more important to me than destroying you. Every moment of my life is focused on that single goal.
And that was July 23rd.
Now, you heard Ms. Capuano's testimony that she tried the tactic of not responding, and if you review Exhibit 5, it was the list of emails that I showed her during re-examination, you can see that she did. She tried not responding. If you look at the yellow highlighter, she doesn't respond to most of his emails through March, May, June and July of 2014.
We know that during that time at some point she contacted the Phoenix Police Department to try to get help. We know that either her or the Apollo Group contacted the website host and tried to get them to take it down. If you look at Mr. Fox's July 31st email, you can see his response. He moved the server out of the jurisdiction.
Now, I'd like to take you to a couple of the December 17th emails, so if you could pull out Exhibit 1 and go to tab 10, and they're the last two emails in that tab.
So if you go to the second last one titled "Telephone call," and I'm going to quote from the middle of the largest paragraph there. You've already heard this [as read in]:
I know that the best way to hurt you permanently is emotionally, not through your reputation, finances or career, and what could be more effective than for your child to utterly despise you because of your own actions?
And then on down at the bottom of that paragraph:
You see, you don't think things through. You're a fool, Desiree. That's why you are where you are.
And then the second insight that we get into Mr. Fox's intentions at that time, the next email, the ugly proof, he says a lot in this email. He says [as read in]:
I cross the border at will. I have handguns, but don't take that as harassment or threatening. I have a changed identity. {G*****} likes me better. I've been paying you a salary for years and not paying your taxes so the IRS is going to come for you.
All of these things are in this email. And then if I could take you to the bottom of the first page, the last two lines there, this is just after he's made the taunt about the IRS coming for her:
I'm methodical and think things through. I look at the long-term. Sometimes my plans take years to complete, but I always see them through.
And then we know that {G*****} went to visit his father over the winter break right around that time. He came back in January, and you may remember Ms. Capuano's characterization of {G*****} when he came back home. He was reserved, he wouldn't associate with the family, he would shut himself up in his room, he would sit far away whenever he could, and I suggest to you that that ties right back into what Mr. Fox was saying in the first December 17th email about harming her emotionally.
And so we get to January 11th, 2015, and I suggest that what we know about Patrick Fox's intention is quite plainly stated by him, and he couldn't have been more explicit, and as we will that his intentions didn't change moving into the period after January the 11th, 2015.
But consider also by this point in time, eight or nine months after the website has been created, the LinkedIn profile, all the difficulties she's had at Apollo, how is Desiree Capuano feeling at this point?
So knows her ex-husband hates her so passionately he's said I've dedicated my whole life to making your life miserable. He said he's thinking long-term, he's already humiliated you at work, he appears to be actively trying to manipulate the custody situation so that {G*****} hates her.
She tried ignoring the emails, that didn't help. She looked for help from the police, that didn't help. She tried to get the website shut down, that didn't help.
I would suggest to you, members of the jury, that by this point in time Ms. Capuano was already feeling extremely harassed, and that's where she was at in January the 11th, 2015.
So that brings me to the next section, Patrick Fox's actual conduct during this period in time, January the 11th, 2015 until May 2016.
Now, tomorrow when Her Ladyship gives you the instructions on the law, she's going to ask you to go through what we call the elements of the offence step by step and decide as a group whether you're satisfied beyond a reasonable doubt about each one of them. And the first one has to do with Patrick Fox's conduct, and does it fall within the prohibited conduct set out in the Criminal Code. And that conduct is specified in the Criminal Code in these two ways.
It can be repeated communication to Desiree Capuano or anyone she knows, or it can be threatening conduct, conduct that causes her to fear for her emotional, physical, psychological wellbeing.
Now, a couple of caveats about how I discuss this evidence at this point. Some of the stuff that we talk about under Patrick Fox's conduct is also going to be relevant to understanding what his intention was with that conduct, and it's also going to be relevant to trying to decide whether she had legitimate fears for her safety. So just because I mention it here and not again doesn't mean you can't refer to it when you're thinking about each of those subsequent elements. There's a caveat to that.
There are some things that Desiree Capuano wasn't aware of. You didn't hear her talk about many of the blogs that are at tab 7 in Exhibit 1, and I'm going to take you to a few of them today, but when you're considering the elements of the offence, if Desiree Capuano didn't know about it, then it's not relevant to your determination of whether she feared and had a legitimate fear. But what it is relevant to is Patrick Fox's intention. So I'll discuss that more as we discuss the evidence.
So another word on threatening conduct, threatening conduct is any conduct designed to instill a sense of fear. You don't have to write this down because Her Ladyship will give you the instructions on the law, and that can be fears for your emotional, physical, psychological safety. It has to be conduct that's meant to intimidate or to be taken seriously, and that's it can be either one.
For example, someone might say "I'm going to bomb your house". You might know full well they don't have that capability. That doesn't mean necessarily that they're not trying to intimidate you. It may be relevant to that determination, but threatening conduct is conduct designed to intimidate or to be taken seriously.
So, as I said at the outset, I'm going to suggest to you that you can think about Patrick Fox's conduct in ten different categories.
We spent four days going over these things with Ms. Capuano. I'm only going to be giving you examples because I don't say that doesn't mean there might not be other things that are relevant.
So, number 1, Mr. Fox threatened to relentlessly pursue her misery. He told her his future plans to accomplish that, and then he taunted her about his effectiveness and her inability to do anything about it.
If we could go to the first email at tab 11, there are several statements in this email that fall into that category, and if we could go to where the chain starts on the fifth page, you can see that these emails start with what I suggest to you are two taunting emails from Mr. Fox that have to do with {G*****}, and they tie in quite closely with remember what Ms. Capuano said about how {G*****}'s demeanour was when he returned from his visit with his father.
If you look at the last page, this -- the second paragraph, he taunts her about how {G*****} -- {G*****} and his demeanour is going to undermine her family. Halfway down the paragraph [as read in]:
The longer {G*****} is there with his bad attitude, his indifference towards you and same for your family and his subtle demeanour of disgusting condescension towards you and same for your mother and your trashy ways, the more it will instill and stay in his subconscious that he is inferior and inadequate, the more it will slowly eat away at your perfect family.
If you look at the previous page, the bottom of the second email from Mr. Fox, the paragraph that starts with:
I've discussed all of this with {G*****}, and I've explained to him what my plan is with respect to you. I've told him if he's uncomfortable with any of it, then I won't proceed. He is fully aware that he is being used as a pawn in my plan to ruin your life, and he seems to be okay with it.
Then if we could go back to the first page in that email chain, and if you look at about three paragraphs down or so you see Ms. Capuano had tried to respond to this with what she characterized as bravado. She says [as read in]:
Your stalker-like obsession with me is truly impressive. The amount of time and energy spent thinking of me is flattering but honestly a little pathetic.
And Mr. Fox tries to distill that in no uncertain terms. [As read in]:
If there is any sincerity in your statements, then you have grossly misinterpreted my intentions. I was pretty direct when I told Detective Tuchfarber that my intention was to do everything in my power and capabilities to make your life as miserable as possible and, if possible, to the point that you ultimately commit suicide. That would be my ultimate desire.
And then he goes on to taunt her with a threat to have a billboard campaign in and around Phoenix.
Ladies and gentlemen, I respectfully suggest to you that, if that's not a threat to harm you psychologically, I suggest that that quite clearly is exactly that.
I'm not going to take you there, but I'll give you references to a couple of other emails where this intention is repeated [as read in]:
January 27th email regarding your talk with {G*****}...
I've got a quote,
As I've stated consistently for the past year and a half, the singular goal for the rest of my life is to destroy your life. I don't care if I die penniless and alone, as long as I know I have done everything I can to make your life as difficult and miserable as possible within the confines of the law.
If you look at -- no, there are actually two excerpts in this book from that same email string, if you look at the next email, you may recall that that's where he threated to have somebody -- to hire somebody to sleep with her and then take pictures that he could then put on the website. Again, in my submission, clearly a threat to cause her emotional and psychological harm.
If I could take you to tab 17, to the last email the Crown asks you to look at in their correspondence, and in my submission this email shows him taunting Ms. Capuano about how effective he's been, and if you look at the third paragraph from the top [as read in]:
There will be no negotiating and I will not agree to any terms you try to impose. You will soon be homeless. You have no money, nobody believes anything you say any more. Nobody is coming to your aid or defence. You will not be able to secure another job as long as the website exists, and it's not going anywhere as long as you're alive. Your boyfriend has reached the point of being fed up, and only his sense of decency towards same keeps him from kicking you guys out. He knows {G*****} will be fine because of me.
So he's threatened to make her miserable, he certainly seems to believe that he's been effective.
The second way, in my submission, that he tried to and did harass Ms. Capuano was by his repeated gratuitous denigration of her, and I expect that, as we went through email after email and insult after insult from Mr. Fox, you may have felt the weight that Ms. Capuano might have felt as she got these emails, but she couldn't stop because she had to communicate because of {G*****}.
You may remember some of his language. January 27th [as read in]:
You're one of the worst fucking parents I've ever known. Dang woman, you're a fucking sad excuse for a human being.
April 16th email [as read in]:
Parenting obviousness...
Basically he tries to explain to her why she's an idiot and then tells her what a civil person he is for having the courtesy to explain to her why she's such an idiot.
You probably recall that very long email string from May of 2015, that's at tab 13, regarding {G*****}'s summer visitation. In that email chain, which Mr. Lagemaat took Ms. Capuano through as well, she certainly trades some insults with him. Mr. Fox's language includes "fucking moron" "fucking idiot" "fuck, your stupid white trash single mother bullshit games, stupid fucking cunt". You may recall several emails sent in the summer of 2015, and you remember Ms. Capuano's testimony that while many of those emails were sent, {G*****} was actually with Mr. Fox in Canada.
If you look at the June 15th email "re status update", basically denigrating her parenting ability. He says to her [as read in]:
Why do you want your children to remain incapable of doing anything on their own so they have to depend on you. That's terrible parenting, but then you're a single mother. That's what all single mothers do. Single mothers don't want to raise children. They just want to have babies.
There are completely gratuitous emails that follow that. July 12th there's an email titled "Babying {G*****}." July 14th, there's an email titled "The ridiculous tattoo", how their white trashiness is just her mindset.
Then, and at this point it appears {G*****}'s back home with Ms. Capuano, July 18th there's an email titled "{G*****}'s infection". Mr. Fox's language [as read in]:
What the God damn fuck is wrong with you? Get the fuck off your lazy fucking ass and take your fucking son to a fucking doctor, you stupid piece of shit. How the fuck to you get off calling yourself an excellent mother? God damn, you're a fucking waste of fucking space.
The third way that Mr. Fox harassed Ms. Capuano was by reminding her over and over again of this humiliating website.
Now, I suggest to you that it may be an interesting legal question of whether posting a website could, just in and of itself, amount to harassment, would that fall within the definition of repeated communication as is set out in the Criminal Code, and as you'll get instructions on tomorrow?
I suggest to you, you don't have to wrestle with that issue because he reminds her of it over and over again in the emails. It's like having a big billboard and saying "Hey, the billboard is right there, look at it, it's still doing what it was meant to do." And so for that reason the website itself comes within the definition of repeated communication. And he, of course, repeatedly taunted her about it and the fact that she couldn't do anything about it.
There are -- it's an interesting question of what -- to what extent Ms. Capuano is aware of what was on this website. If you're thinking about that question, look at the email from 2014 title "Usage graphs" because he tells her about it, including, you know, "there's picture of you in your underwear, people are really interested in looking at the pictures of your bedroom."
I'm going to list several emails where, if you want, you can go and look at some of his reminders to her about the website. January 27th, regarding "Your talk with {G*****}" he tells her about updating the website. May the 11th, 2015 he just sends her an email titled "Website updates." May the 23rd, an email titled "Search engine results". June the 12th, an email titled "re automobile accident." He talks about getting her medical reports and posting them up there. June 28th, re Carrington College, and then the November 14th email that we just looked at.
And fourth way in which his conduct fell within the definition of the criminal harassment conduct section is threats to ruin her reputation. They're very closely tied to his reminders about the website and, in my submission, threating to ruin someone's reputation is threatening to hurt them emotionally and psychologically.
That email I just mentioned, June 28th, "re Carrington College", he tells her [as read in]:
Since the campus is substantially smaller, then you'd be less anonymous, and word of your website and your backstory should spread quickly.
The July 13th email, "Updates to your site" [as read in]:
I've updated some of the information on your site. Let me know if anything is inaccurate, mainly on the home page and on the news page. I was sure to include your new address, a picture of your presumed boyfriend and picture of your new home. Your reputation will undoubtedly spread quickly.
And you'll remember Ms. Capuano's evidence that she was aware that there were Google ads taken out within a 20-mile radius of her home that would point people to that website.
The fifth way that Mr. Fox tormented Ms. Capuano in a way that is captured by the definition of criminal harassment, he threatened to interfere with her ability to gain employment. It goes without saying, but of course as job is central to your dignity as a human being, your ability to care for your children, to function in our society and, in my submission to you, attempts to interfere with someone's ability to gain employment are quite clearly attempts to hurt them psychologically and emotionally. We already looked at the November 14th email, taunting her that she wasn't going to be able to get a job, as long as the website is around.
When you're considering what Mr. Fox's intention was and whether there's am -- any ambiguity in it, there are three blogs that you can look at. I'm going to take you to one of them, so if you could go to tab 7, and again I have to apologize for the lack of page numbers, but about 14 pages in, if you just -- I'm not counting them double-sided, there's a -- there's a blog titled "An Open Letter to All Perspective Employers."
So we see a date there, December 6th, 2015, and just step back and imagine for a second that you're a potential employer, and you've Googled Ms. Capuano and this page comes up. It looks like it's written by her [as read in]:
An Open Letter to All Perspective Employers: Why you should hire me. I'll cut right to the chase. (1) I use drugs while I'm at work; (2) I regularly get high before going to work; (3)...
And it just goes on and on and finishes with the term:
Suck it, bitches. Keep your fucking jobs. I wouldn't work for you anyway. Stupid dirty...
And I'm not going to repeat the rest of it. So, imagine, what's the intention of a person who posts this about somebody else? This person who's threatened you already that they're going to interfere with your ability to gain employment.
Two other blogs that I'm not going to specifically take you to right now, there's one titled "Green Valley Hospital", which contemplates an employer going to the website, and what they might think. And then there's the blog "Oh to work at Pima Community College" and you'll remember Ms. Capuano's evidence that she actually had a job offer from there and it was rescinded.
Patrick Fox admits this particular type of harassment when he's talking to Constable Potts. If you want to look it up, it's at line 1592 of his statement, and Constable Potts is asking him about that email where he says his intention is to cause her as much misery as possible. And he says, Mr. Fox says [as read in]:
Mm-hmm. Mm-hmm. Um, by pursuing things like her or by trying to do things like making it so she can't get a job, but by doing it legally. By publishing, um, proof the kind of person she is, proof of her drug use, proof of how she's a compulsive liar.
The sixth way that he tried to harass Ms. Capuano was by trying to destroy her relationship with {G*****}, and that could fall into the repeated communication category or it could fall in with threatening conduct category.
We've already looked at his December 2014 email where he said he knew the best way to hurt her was emotionally, and what could be more effective than to have {G*****} despise her. We've already looked at the January 11th email where he talks about using {G*****} as a pawn in his plan. You could look at the January 28th, 2015 email titled "More Plans". I suggest that's an email just gratuitously sent and explaining how he's using {G*****} to make her miserable.
There's a May 7th email titled "The motivation for your behaviour" where he taunts her that {G*****} isn't bonding with her. There's the June 29th email where he taunts her, telling -- he says [as read in]:
Is what I'm saying false? If it's the truth, then you can't really say I'm manipulating him...
Referring to {G*****},
... by telling him such things. Telling the truth is not manipulation. He doesn't hate you because of what I tell him about you. He hates you because of what you do.
There's the July 5th email titled "Status" that begins with the words [as read in]:
Yes, {G*****} and I are having fun at your expense.
And you'll recall, I believe it was Ms. Capuano's evidence that {G*****} was cc'd on many of these emails. There's another July 5th email titled "Your reasoning", another July 5th email titled "Fun at your expense", and then I'd like to take you to this email from July the 14th, that'll be at tab 15. It's titled "{G*****}'s return."
So the email titled "{G*****}'s return" July 14th, 2015 [as read in]:
So tell me, Desiree, how was {G*****} upon his return? How's his demeanour seem? Does he seem happy to be back with you? Has he been sharing with you all the things he did, his wonderful accomplishments? Is he excited about his new home? Is he looking forward to starting his new school? Or has he been withdrawn, keeping to himself, spending most of his time in his room? And as I've said repeatedly, the misery that will bring you and your home is far greater than a court order for you to return him. A court order gives you the opportunity to get people's pity. A son that hates you because you're a narcissistic fuck-up leaves only you to blame.
The seventh way, in my submission, that he tried to harass Ms. Capuano was by hurting the people she loves, {SC*****}. I'll talk first about {SC*****} and then about James Pendleton.
So remember that threatening conduct in the definition of criminal harassment is any conduct, can include conduct directed at Ms. Capuano or any member of her family. We looked, when Ms. Capuano was testifying, at the photo album of {SC*****} Capuano. You heard Ms. Capuano say that she perceived that to be threatening, a picture of him in his underwear along with their address for any pedophile to find.
Did Mr. Fox intend for this conduct to be threatening? Well, consider that he's floated {G*****}'s image out everywhere and taken out his name from the website.
Consider that Mr. Fox -- we read this email already, it's part of the January 11th "Re your loving home" email, taunting her about how {G*****}'s demeanour is going to have an impact on {SC*****}.
There is also a June 28th 2015 email titled "Your favourite child" where Mr. Fox says [as read in]:
I pointed out to him that you obviously like {SC*****} more than him.
What's the intention of a person who says that to their son?
So (8) is hurting James. You may recall the email that was sent on July 19th in which I would suggest to you there's an implied threat to interfere with James' employment status by calling his security clearance into question. If you're wondering, well, did he really intend that as a threat, did he intend for that to be taken seriously, you could go and look at the blog at tab 7. I'm not going to take you there, but I'll just give you the reference. It's titled "James' security clearance under review" and, again, this is one of those that purports to be written by Ms. Capuano [as read in]:
Oh, my fucking god, I can't believe that stupid...
I'll leave a few words out:
... that fucking asshole called the Department of Defence and filed a false fucking claim against James Pendleton. Now James' security clearance is under review.
So if you're thinking about Mr. Fox's intention with that email to Ms. Capuano, think about this blog. There are other blogs that you could look at. There's one titled "An objective review of James Pendleton's résumé." You might also consider the fact that he published a picture of James' mother, listing her place of business on this website. That was part of -- that's in tab 5, if anybody wants to go back and refer to it.
The ninth way, in my submission, that Mr. Fox's conduct fell within the definition of harassment was the fact that he posted her contact information along with taunts to whole groups of people. If we could go to tab 15, there's an email July 18th that's titled "re Contact Information." So there are actually two. It's the second last email at tab 15. The last email is from the same chain.
So this is July 18th, 2015 at 11:07 p.m., right in the middle of the page we see that Ms. Capuano has responded to this threat and says [as read in]:
Richard, have you stopped to consider that if what you have were the real address and not just an intentional misdirection that you would be endangering {G*****}'s safety and privacy with your amateur website, publishing an address of your son would potentially be residing at. Good job, classy, real classy. Desiree.
So then Mr. Fox responds to that basically saying [as read in]:
I've considered the implications, angry Mexican showed up at your house, they probably wouldn't hurt {G*****}, and I wouldn't be held responsible.
Does Mr. Fox in any way take her concerns in that regard seriously? Well, that email was sent in July 18th, on July 18th, and if you look through the blogs, and I'm not going to take you to them, but there's one titled "Yes, I am a racist" dated in October 2015, there's another one February 28th, 2016 titled "Of racism, white supremacy, Nazis and those damn dirty Mexicans".
So, Ms. Capuano tells him there could be a problem with these emails. She's concerned about, you know, the implications for their children. He dismisses them and then doubles down by writing these even more inflammatory blog posts.
The tenth way that, in my submission, Mr. Fox harassed Ms. Capuano was by reminding her that he had guns and would shoot her if he could get away with it. This whole thing is captured in one email and it's worth looking at Mr. Fox's words, so if I could take you back there, it's tab 11, the first email, the third page, and ladies and gentlemen, I will ask Her Ladyship if she'll give us a break after this. I know you've been sitting for almost an hour now.
So the last paragraph on the third page of that email [as read in]:
He once asked me if I would shoot you. I told him that murder is illegal and immoral and can result in spending the rest of one's life in prison, and that the rest of my life in prison is not a risk I'm willing to take, but otherwise, no, I would have no qualms about it, that that is how much I despise you for the things you've done and continue to do. He did not flinch, he didn't look anything other than indifferent. As best I could tell, he didn't care. The topic never came up again. That was during his visit last summer. To be clear, I told Detective -- I told Tuchfarber to say the same thing. There is nothing illegal or threatening about wanting to harm someone as long as you don't act on it. I am reasonable and rational enough to know the difference and to refrain from engaging in such activity. And let me be absolutely clear on this point. I would never deliberately cause you physical harm, other than in self-defence or defence of another, so that is nothing special towards you. I have that rule for all people, so I emphasize that {G*****} brought up the question and I only responded to it truthfully.
Now, how is Ms. Capuano supposed to take this statement? As a -- as a joke? As witty banter? Mr. Fox, in my submission, seems to be saying contradictory things. "I would shoot you if I could get away with it, oh, but I wouldn't shoot anybody except in self-defence or defence of another." Well, consider that Mr. Fox, what would defence of another mean to Mr. Fox? Would he see himself as defending his son if he shot her? I suggest to you that if you read through the tone of his emails, he certainly might.
Now, consider also what Ms. Capuano knows at this point. She knows he owns guns, he's told her he crosses the border at will, he knows how to find you. In April or May of 2016 she started getting phone calls from him that seemed to originate in the United States. So, when you're thinking about the effect of that statement on Ms. Capuano, think about those facts.
But then there are more facts that Ms. Capuano didn't know that are relevant when you think about what Mr. Fox meant. Was he trying to intimidate?
And, in my submission, his situation is kind of analogous to this, what if somebody called the off -- and I'll use the bomb example again and said I'm -- I'm going to drop a nuclear bomb on your house. You might not take it seriously. But if you later learned the person actually did have nuclear weapons, they were the president of North Korea? What if you later learned that they had moved their guns closer to you? Well, and that's exactly what you know, that Ms. Capuano didn't know.
You know that he surreptitiously sent his guns to the United States. I suggest to you that you know that he did that at great risk both to himself and to Liz. If you look at line 1689 of his statement, he knew that he was prohibited from having firearms in the United States, so he risked -- that's a risk to himself of consequences for possessing guns in the United States.
And if you look at line 1944 of his statement, he says [as read in]:
I'm a little concerned that if I tell you specifically where it is, the guns, that all of a sudden storm troopers are going to go racing into her place.
He knew that he was putting Ms. {M*****} at risk by having those guns there.
So what if he then discovered that Mr. Fox had crossed the border illegally again, and again at great risk to himself, line 1836 of his statement he tells Constable Potts:
I knew I was going down to L.A. for a visit, so I knew there was a possibility I could get detained, they might charge me with something, who knows, I might go to prison for five years.
Is a person who's facing five years jail just going to visit?
If I could take you to tab 7 back to the blogs, and this one is right about in the middle. Now, these things are organized by date, so maybe it will be helpful if I give you a date. February 13th, 2016, it's titled "My ex-husband wants to kill me or at least that what I keep telling people." February of 2016.
And so this is one of those things where I'm not going to read the whole thing. It's two and a half pages, and I would encourage you to read the whole thing to get the full context, but it's ostensibly Mr. Fox's response to Ms. Capuano saying that she was scared that he would shoot her, and if you look at the page that would be the -- the third page of the blog, there's a section right near the top that's titled "The logistics"?
And, ladies and gentleman, it's okay if you don't have it yet. I apologize. That's my fault for the page numbers. I'll characterize this for you and I -- I'd ask you to go and read it for yourself. But there's a section in this blog titled "The logistics", which clearly and very explicitly contemplates what would be involved in going down to the United States and killing Ms. Capuano. It even contemplates which gun might be used. To be fair to Mr. Fox, he adds one of his typical caveats to the bottom, and says [as read in]:
No, this would just be too -- logistically this is too impossible. I couldn't do it. Ms. Capuano should know that. Her fear is not legitimate.
Well, when you're considering what he meant with that email, saying he would shoot you if he could get away with it, and then he's quite clearly contemplated the logistics of doing it, in my submission, that's a factor to consider when you're thinking about whether he meant for that statement to intimidate her.
My Lady, that might be a good time for the break.
THE COURT: All right. Members of the jury, we'll take the morning break at this point.
(JURY OUT)
THE CLERK: Order in court. Court is adjourned for the morning break.
(PROCEEDINGS ADJOURNED FOR MORNING RECESS)
(PROCEEDINGS RECONVENED)
(JURY OUT)
THE ACCUSED: My Lady, one thing I'd like to address. My friend estimates he'll be another possibly 30 minutes. He feels he's --
THE COURT: I was going to raise that as well.
THE ACCUSED: Yes. He feels he's two-thirds of the way through, and that took an hour, so I would ask if I could start at 2:00 p.m. so I can spend some time going over what he has said and adapt my -- my submissions accordingly. I still don't believe that I will be over 30 minutes, and I understand My Lady does not want to give her charge until tomorrow morning regardless.
THE COURT: That's true, and I'll certainly give you the time. The timing issue is I would like to have some time after you've each given your closing addresses to develop the portion of the charge that deals with the positions of the parties, and ideally I would like you each to have an opportunity to review that before I charge the jury.
THE ACCUSED: Perhaps if I came back at 1:30?
THE COURT: That would help.
THE ACCUSED: Yes, if that would move things along.
THE COURT: If -- if that gives you enough time.
THE ACCUSED: Yes, it would. Because I -- I expect to be -- like if my friend's estimate is correct, he'll be finished much before 12:30, so.
THE COURT: Right. Well, let's tentatively settle on that as a plan. All right.
THE ACCUSED: May I --
THE COURT: Ready? Yes?
THE ACCUSED: And I understand there's a revised edition of your draft of your final instructions. Is that going to be provided?
THE COURT: Yes, in fact there's a further revised one, and I'll print that out over lunch.
THE ACCUSED: Thank you, My Lady.
THE COURT: All right.
THE SHERIFF: The jury, My Lady.
(JURY IN)
CLOSING ADDRESS FOR CROWN BY MR. MYHRE, CONTINUING:
MR. MYHRE: So, ladies and gentlemen, I think I'm going to be less than 45 minutes here, and then my understanding is that we're going to break for lunch.
Moving on to the next section of my submissions to talk about the effect that these actions had on Ms. Capuano. Now, the elements of the offence of criminal harassment require you to consider, in terms of the impact on Ms. Capuano, two things. Whether she was harassed, and Her Ladyship will give you some definitions of what that means. One of the synonyms is tormented. And, second, whether she actually did fear for her psychological, emotional or physical safety. And Her Ladyship will tell you, I expect, that it's not necessary that victims of harassment suffer ill health or a major disruption to their lives. It doesn't have to go that far when we're talking about emotional and psychological safety.
So, what did Ms. Capuano tell us about her fears, and I'm going to -- the evidence, in my submission, on these two points, it's all the same when you're thinking about whether she was harassed and whether she feared for her safety, and so I'm going to address it at the same time.
So here's what she actually told us in terms of her physical safety. She said [as read in]:
I believe Richard was crossing into the country undetected regularly. He had access to guns under an identity he could toss if he needed to. I knew he could get to Los Angeles in days. He had contacts there, and I live six hours from there. I know how much he despises me. All the times he's told me the world would be a better place without me, and the website would continue until I was dead.
She was scared for her physical safety. Her emotional or psychological safety, she told you that she wondered if it was easier to give up. She said:
I never contemplated how to commit suicide, but many times I questioned whether I had the strength to keep going, if I would get my life back or if this was what I was going to have to deal with every day.
She said [as read in]:
I didn't know if I could, but I know who I am, and I know I'm stronger.
My submission to you about what she said here is that she's not being melodramatic. That's entirely consistent with a response to the actions that we've just gone over, and if she wanted to embellish, why not say "I had a rope hung in my room ready to go." She could have said that and nobody would have contradicted her on it. She didn't go that far and, in my submission, she was a straightforward witness with you.
She also told you that she felt isolated, beat up, powerless, frustrated, Richard had worked it out so that things were never going to get better, she was losing jobs, friends. She said she was struggling every day. She was depressed but she had to conceal it. She was raising two children, and had to hold down a job. It strained her relationship with James because his livelihood was threatened and his mom had been brought into it, to the point where she asked James if it would be better if she just left.
So, in my submission, what Ms. Capuano told you about is a very significant psychological and emotional impact from all of Mr. Fox's actions, and I suggest to you, of course there is.
Now, the tenor of the cross-examination of Ms. Capuano was to the effect of, when you really look at the emails, it's just back and forth witty banter between two people who obviously don't like each other, and because it's just witty banter Ms. Capuano didn't really fear for her own psychological or emotional or physical safety.
So I have five response to that. The first one is I would suggest to you that what you see in the email correspondence is a massive difference in kind. If this was just a few emails where people called each other names that started with the expletive fuck, I'd suggest to you we wouldn't be here listening to this evidence.
But that wasn't what you have. On one hand, we have one person who's made it their explicit long-term goal to make one person miserable, and on the other hand you have somebody who counters with what are mostly insults to his intelligence.
The second thing to think about is that Mr. Fox made it very difficult for her not to respond by CC'ing {G*****} on these emails. He put her in a nearly impossible situation. If you review the defence book of emails, by my count there were 17 emails in there; 15 were initiated by Mr. Fox, and seven of them had {G*****} cc'd on the original email. And you see in some of those emails he actually taunts Ms. Capuano that people are being bcc'd that she doesn't know about.
So this is {G*****}, who I believe would have been about 14 at that time, and Ms. Capuano testified that when {G*****} saw no response to what the father was saying, he didn't seem to respect her, and that when she started to fight back her son started to respect her again.
When people are scared, they can have a fight or flight instinct. Ms. Capuano's first instinct was to try not responding. She tried that, it didn't work. The fact that she then fought back with what she characterized as bravado, doesn't mean she's not scared. If someone started attacking you on the street, does the fact that you take a swing back mean that you're not scared that you're being attacked? Of course not.
And it may be that some very special person would not have responded to all of these taunts and threats to destroy her, but you don't have to be a saint to get the benefit of the law of criminal harassment.
The third thing is that interpretation that she wasn't scared is not consistent with all the things she actually did. What do we know she did during the charge period? We already talked about the pre-charge period. In April 2015 she went to the RCMP. She sent him an email on April 9th, 2015 that was a formal request to cease all communication not specifically relating to {G*****} and to take down the website.
She wasn't getting action from the RCMP, so she called again in July of 2015. That same month she also obtained an order of protection in Arizona. She fought that when Mr. Fox challenged it and appealed it to two different levels, and she kept fighting to have it.
And then you know that in February of 2016 she went to the CBC with her story, and she explained why that was. Nothing else worked. She'd tried to get help from everywhere. When you Googled her name, the first thing that came up was still this website.
So if all of these actions weren't tormenting someone, why would they spend days of their lives in court trying to get orders of protection? That's not consistent with her actual actions.
It was suggested to her at one point, well, why -- why didn't you change your identity? So are we to think that she's not harassed because she didn't take the most dramatic step you could imagine? And think about that would entail, for a second, trying to change your identity and keep it hidden. Would you have to cut off contact with your friends and relatives?
Consider from Ms. Capuano's perspective how effective would that have been anyways? This is a guy who was telling her, "Oh, in America, I can get your medical records. I can get anything."
The first point is that because a person chuckles in a police interview doesn't mean they haven't been scared and are scared. And you see this perspective, you would have seen it in Patrick Fox's statement at line 1121, he talks about her interview with CBC, and a radio interview that was done the day after, and he says [as read in]:
The radio interview was done the day after the CBC story aired, and you listen in there there's no fear in her voice. She's laughing and joking about the stuff on the website. There's no fear there.
So, two points about that. In my submission, it's very disingenuous when you've suggested that your whole goal in life is to ruin someone's life and to make them miserable, to then suggest that your actions are not actually having that impact.
And the second submission is that what this comment by Mr. Fox shows is that it's reflective of his belief that emotions are, what are his words "Just labels that simple-minded people put on the physical sensations" and I'll give you a reference in a sec, "caused by the self-induced secretion of chemicals by the brain." And you can find that in the defence book of emails, the third email titled with subject line "Re I'm flattered really."
So, in cross-examination, Ms. Capuano was confronted with some little chuckles that she makes when Detective Wilcott is interviewing her in Arizona, when she talked about her coworkers confronting her about the LinkedIn profile saying she was a stripper, when she talks about being scarred by what's happening, and when she talks about Mr. Fox telling {G*****} that she had induced an early delivery by punching herself in the stomach. There are little chuckles there, and she explained to you that laughing for her was a coping mechanism, and that is she didn't laugh, she would cry.
Think about how long she'd been dealing with this situation.
The fifth point, fifth reason I suggest to you that this interpretation that is wasn't really troubling here is that Mr. Fox acknowledged it himself. Mr. Fox didn't believe that it wasn't having any effect on her.
Now, in his statement at line 498, he makes the claim to Constable Potts that "None of this really bothered he until I started putting her fiancé's picture and information about him on the website. And that's when she starts freaking out and doing all this. I suspect she, herself, doesn't care at all really because she never did anything prior to that because she just didn't care and she even admitted herself in some of the interviews."
Well, ladies and gentleman, that's a bald faced lie. Mr. Fox knew full well that prior to the summer of 2015 when he posted that information about James Pendleton, she had taken a number of steps, contacted the RCMP, the Arizona PD, contacted the web-post to try to get the website taken down.
Mr. Fox knew within a few months of his activity that she was scared. There is an email, July 22nd, 2014 subject "Telephone communication regarding {G*****}", and I won't ask you to flip to it but I'll read you the quote [as read in]:
It's obvious from how you conducted yourself on the telephone a few moments ago that you're afraid of and intimidated by me. I couldn't understand a thing you said on the phone because you were trying so hard to say only and exactly what you had rehearsed beforehand, while at the same time trying not to cry, presumably out of fear and anxiety, and you were all muffled and shit.
So, within three to four months of him creating this website, and starting the harassment campaign at her workplace, he knew she was scared. Did he do anything in the intervening time before the charge period to make her less scared?
Another admission to this effect, you'll remember counsel spent some time going over with Ms. Capuano their back and forth in the January 11th email string. And she suggests things like , in fact, we reviewed it [as read in]:
The amount of time he spent thinking about me is flattering, but honestly a little pathetic.
And then he responds:
In no uncertain terms, my intention is to see you dead, have you commit suicide.
But what wasn't part of that chain, what was put to Ms. Capuano in re-examination, Exhibit 5, you'll remember there's one email where Mr. Fox acknowledges the hollowness of what Ms. Capuano is saying to him, and he says -- sorry, it's Exhibit 3 [as read in]:
The level of overcompensation in your sarcasm makes it obvious that you are angry and hurt, and you do not believe the points you are repetitiously overemphasizing.
More acknowledgement of the fact that he knew that he was having an effect on her, the email from May 6th, 2015, "{G*****}'s summer visitation", and I'm not going to take you there. It's -- there were a few of those. It's the one that's at May 6, 10:05 p.m. He tells her [as read in]:
Do you ever get tired of being in a perpetual loser? Do you ever think to yourself what's the point? Ever seem to you like maybe life is just too fucking hard and there's no point because we're all going to die in the end anyway? If not, well, that's too bad. The world is going to be a better place when you are no longer in it.
And you can also consider that November 14th email that we've already looked at a few times. He knew that he was being effective in what he was doing, that it was having an effect on her.
Now, I'm going to take you to the last blog at tab 7, the very last -- the last blog. It's titled "Yes, this website is still here, bitches." And I suggest to you, ladies and gentlemen, this is a man who is taking great delight in the fact that his harassment has been very effective in causing her emotional and psychological damage. [As read in]:
Good evening, gentle reader. We'd just like to take a moment and say to all those whining pussies, feminists, white knights, soccer moms and anyone else that made a big deal about this website a few months ago when it was on the news, suck it. The website is still here, still serving its goal of informing the world of what a horrible person Desiree Capuano is. All of your whining and complaining, all of your talk of getting the government, the police and the prosecutors to do something about it has accomplished absolutely fucking nothing. And because of all of your shouting about how much of an asshole I am, the site has received way more notice than it would have if you just shut the fuck up and said nothing at all.
So, thank you for that free publicity. Because of your incessant addiction, hundreds of thousands of people, including almost every person, every hiring manager, every recruiter who lives within 50 miles of Desiree has seen this site and knows what a horrible cunt she is. And tomorrow and next month and next year this website will still be here, still chugging along, and every day this website continues to make Desiree's life a little more dreary as it gets harder and harder for her to continue to lie to and manipulate people. Every day Desiree gets a few steps closer to that inevitable rock bottom. Hate me if you want, but you know what, the bullshit between Desiree and I is none of your fucking business. Sincerely, Patrick.
So that's a person who will also try to tell you that this website and the things that he were -- was doing didn't cause her to have a legitimate fear for her safety. He knew that it was. He knew it was having the effect of tormenting her. He knew it was impacting her emotional and psychological wellbeing.
You'll have to consider whether her fear was legitimate. The person has to have an objectively reasonable fear. In my submission, you should have no difficulty with that.
Consider just the depth of this man's hatred for her. I suggest you see it in the tone of every single email. His explicit goal in life is to make her so miserable she'll kill herself. He's actively followed through with it. He's created a website and, in his words, spent countless hours on it, you can find that in his background section at tab 6.
He's moved the site to Iceland so that nobody can do anything about it. That's line 1451 of his statement. In my submission, most telling about the depth of the -- depths of this man's hatred, he was willing to use his own son as a pawn.
The next section, whether he knew that she was harassed, or wilfully blind, so a person -- a person can be guilty of criminal harassment if they're reckless in their actions without considering the risk that the other person will be harassed, if they're wilfully blind to it, or if they knew it, and my submission to you is clearly that he knew it, and we've already gone over several of his statements that show that he did.
Right at the outset I suggested to you that there's a good explanation for why he was so brazen, and that's because he thought that what he was doing was legal. You can see that in his statement at line 1996, he told the police officer [as read in]:
I always look into what the laws are before I do something. It's very rare that I violate a law. I come very close sometimes, but I always try to stay on this one side.
And at line 2088 he says:
Even if she were to appear and testify and she was credible, given the wording of the statute there hasn't actually been any criminal harassment.
His mistake of law is set out in some of his emails if you look at the April 28th, 2014 email, his response to the cease and desist email from Ms. Capuano, he tells her [as read in]:
Anything which has been or will be published is either your own words or is completely true. Therefore, there is no liable and no basis for a claim of harassment.
And you've probably noticed in a few other places. Mr. Fox's conception of truth is interesting. He feels justified in calling her a white supremacist because her ex-boyfriend had a dagger with a swastika on it hung on their wall. That's kind of no moment because the truth is not a defence to criminal harassment.
Just think if it was, think of the law of threatening, somebody said "I'm going to bomb your house", they might truthfully mean it. It doesn't mean they couldn't be held guilty of threatening. Truth is not a defence to criminal harassment, and you won't see that in Her Ladyship's instructions to you.
So I suggest to you that tells us why he was so brazen in all the statements that he made. We've already looked at so many of his statements about his goal in life to essentially to torment her. You can see that he reaffirms that in his June 2016 email -- or, sorry, statement to Constable Potts, if you look at line 1555 when asked about whether the primary goal in his life was to have her experience as much misery as possible, he said [as read in]:
Yes, I don't deny that. Absolutely. But once again I emphasize legally within the bounds of the law.
His intention didn't change from the spring of 2014 or the summer of 2013 until June of 2016.
I'd like to take you to another blog. This one's about nine pages in at tab 7, and by pages I'm not talking double-sided, just flip about nine pages and it's titled "Of anal sex and cooking oil". Ladies and gentlemen, if you have any doubts about Patrick Fox's intention with this website, read this blog. It's basically what the title says it is, a story about Ms. Capuano, anal sex and cooking oil. What could the intention of a person be in publishing this story, other than to completely humiliate someone?
So when you're thinking about his intention, think about what he knew. He knew all of the steps that she had taken to try to stop him. If you want to see them all categorized neatly, read his -- his -- his document titled "Background" at tab 6. He knew about her attempts to get the police to help her. He knew -- he knew about her orders of protection, of course. He knew James was filing complaints. We've already looked at several emails that Ms. Capuano sent him to that effect, telling him that she felt harassed and she was in fear.
Other people told him. The email at tab 16 of Exhibit 1, you'll remember that's -- came from the website but it starts with an email by James Pendleton complaining about harassment to the webserver, so Patrick Fox knew about that from James Pendleton. The court told him there was an injunction against harassment out of Arizona. Constable Huggins told him, and you heard that evidence from Constable Dupont.
And in the face of all of this, the only way someone could not believe they were harassing would be if they were wilfully blind, in my submission.
But of course he wasn't wilfully blind. We've seen so many statements, we've just reviewed several of them where he acknowledges that he's being effective. He knew it. We saw it in that blog, "Yes, this website is still here".
He acknowledged it in his statement of Constable Potts. If you read the paragraph at 1527 he talks about how once he stopped communicating with her, his efforts became much more effective. So he knew they were being effective. They just became more effective after he was not allowed to communicate with her for a little while.
So, my respectful submission to you on the criminal harassment charge is that there's nothing tricky here. These are all Patrick Fox's words. His intent was to torment her, he did it in many different ways, he did it effectively, he knew that she was scared.
So, moving on to the next section and to talk about the gun charge, so this charge is that he possessed his firearms in a place other than a place indicated on authorization or licence as being a place where he could possess it.
As I already pointed out to you a few of those conditions that are on his licence. Those are permissive. You can only take them to the places listed on there. There's nothing about taking your guns to the Packaging Depot to have them shipped, in his licence. He can take them to a port of entry, but that's personal transport. You can't give your guns to a third party and have them take them across the border for you or anywhere else.
And so Her Ladyship will tell you about the legal definition of possession, but basically possession at law can mean in your hands, or it can mean at a place that you know about and within your control. And so you heard Mr. Mangat talk about the fact that Mr. Fox still did exercise some control while those -- while the boxes were at the shipping depot until I think he said it was 4:00 a.m. the next day when TNT [phonetic] would come and get them and they would go away.
And so it's not really of any moment whether this particular box that had the handguns in it, whether it was picked up at his place or whether Mr. Fox somehow got it to the Packaging depot.
The only real question is were those guns in that box that Mr. Mangat received and shipped. So, you heard Agent Spizuoco's evidence that he opened the box and he found the firearms inside a desktop. And it may be that we could imagine some scenario whereby those guns weren't in the box when they were given to Mr. Mangat, and somehow Mr. Fox, in a way that didn't contravene his licence, I can't imagine a way in which to do it without contravening his licence, but somehow got them in there without being in possession of them and -- and they weren't in the box.
And I would suggest that any scenario that you might posit about how those guns got in there would not be a reasonably plausible one. We still deal with reasonable doubt, which is a very high bar, but it doesn't include completely fanciful, speculative scenarios. You have to use your common sense.
In this case, I'm going to suggest to you that we don't even get into that speculation for this reason, Mr. Fox talks in his statement about what he did with them. If you look at line 1836 he tells Constable Potts [as read in]:
The reason I was shipping things, and rather than using the word shipping because that implies using the postal service or something which introduces certain legalities, the reason I was transporting let's say things to my friend in Los Angeles is because...
So he slips up, he talks about shipping his firearms and then back-peddles, transporting, them, I'm transported them.
Those are my submissions, ladies and gentlemen.
THE COURT: Thank you, Mr. Myhre. Members of the jury, I think we will break early for lunch, rather than having the defence closing split before lunch and after. Mr. Lagemaat, what do you suggest as the time for returning, perhaps quarter to 2:00?
MR. LAGEMAAT: Yes, that's fine.
THE COURT: So, members of the jury, if you wouldn't mind changing our lunch hour just a little bit, I think that will make the best use of the time for today, and I'll ask you to come back, please, at 1:45. Thank you.
(JURY OUT)
THE COURT: I said I would give you a copy of the verdict sheet I propose to use. Madam Registrar, one should be marked as the next exhibit for identification, and do you know what that is?
THE CLERK: Exhibit I for Identification, My Lady.
MARKED I FOR IDENTIFICATION: Proposed
verdict sheet for jury
THE COURT: Thank you. If there are any comments about it, please make those when we resume. Anything else before we break.
MR. MYHRE: No, My Lady.
THE COURT: Okay. We'll break.
THE CLERK: Order in court. Court is adjourned until 1:45 p.m.
(PROCEEDINGS ADJOURNED FOR NOON RECESS)
(PROCEEDINGS RECONVENED)
MR. MYHRE: My Lady, my sincere apologies. I somehow left here thinking it was two o'clock, and obviously I missed something that everybody heard. I'm sorry.
THE COURT: Are we ready?
MR. LAGEMAAT: Yes, My Lady.
THE SHERIFF: The jury, My Lady.
(JURY IN)
THE COURT: Mr. Lagemaat?
CLOSING ADDRESS FOR ACCUSED ON COUNT 1 BY MR. LAGEMAAT:
MR. LAGEMAAT: I'll start with a brief opening about the seriousness of your role as jurors.
When you swore in as jurors, you promised that you would give Mr. Fox a fair trial, that you would ford -- would afford him the presumption of innocence and the benefit of a reasonable doubt, reasonable doubt, and this is the same right that you would expect if you committed and offence or were alleged to have committed an offence and were being tried by 12 of your peers. And this is the cornerstone of our justice system.
Mr. Fox chose you as jurors, expecting and trusting that you would do this, and being a juror comes with a grave responsibility. You -- you have the responsibility to come to a decision based on the evidence and the law, not on your like or dislike of the accused or a witness or for tasteless or perhaps immoral things he may have done, if those things are within the law. You're here to come to a rational logical decision based on the law, not your opinion of the man as a person.
The jury is the trier of facts. I'll be going through the facts, and if my version differs from your recollection, you base your decision on your recollection. You're the trier of the facts.
The same with the law, Her Ladyship is the trier of the law, and she will instruct you on the law. I'll cover some of the points of law that I feel are relevant to my submissions, but if it differs from Her Ladyship's version of the law, you -- she is the trier of the law, you listen to her.
I'm here to address you on Count 1, the criminal harassment charge only. That being between January 11th, 2015 and May 27th, 2016, inclusive, at or near Burnaby, Mr. Fox, without lawful authority and knowing that another person was harassed or being reckless as to whether the other person was harassed, engaged in conduct that caused the other person, in this case, Ms. Capuano, to reasonably fear for her safety, or anyone known to her.
I'll go through the elements of the offence. My friend touched on that. I'll -- I'll go through them in slightly different order, and putting greater detail on different elements. I'll remind you that Mr. Fox, and this is about the presumption of innocence that I mentioned, comes before you as an innocent man. You'll notice he's in custody. That does not mean you can infer him guilty of anything. He is an innocent man until the point that the Crown, has the burden of proving, proves Mr. Fox guilty beyond a reasonable doubt, and that's the same with any criminal offence. The prosecutor must prove the elements of the offence beyond a reasonable doubt before there can be a conviction.
So what does beyond a reasonable doubt mean? Her Ladyship will instruct you in more detail on this, but it's not an imaginary or frivolous doubt. It's a doubt based on reason and common sense, which I'm going to ask you to come to based on the evidence, and it's a doubt that arises logically from the evidence or lack of evidence.
In assessing whether the Crown has proven the elements of the offence beyond a reasonable doubt, I'm going to ask you to consider both the evidence of Ms. Capuano and her credibility as a witness, and in assessing her credibility I'll lead you to some discrepancies in her evidence, and I'll also ask you to consider her demeanour in giving her evidence, which you can do to assess her credibility.
And, lastly, the evidence of Mr. Fox, which you heard through a statement he made to the police, and on that note, one thing I'd like to point out is you noticed Mr. Fox did not take the witness stand, and that's a choice that any accused facing criminal allegation can make. You cannot make any inferences from that, and you do have his version of events through his statement.
You also heard in some emails we went through that Mr. Fox was incarcerated in the United States. You also cannot use this to inform any decision you make in this trial. It's very important that you only consider what he is charged here with, including the dates of that charge and the places of that charge, not his past or any opinions you have formed regarding his character.
So we'll start by assessing Ms. Capuano's credibility as a witness before we get into that evidence. And, as I said earlier, you -- you can consider demeanour in assessing her credibility, although there's a caveat. It would be an error if demeanour became the sole or dominant basis for determining her credibility as a witness, but it can be a factor in determining her credibility.
Firstly, I'll talk about her demeanour. I'll remind you that during her direct evidence, Ms. Capuano cried through most of her evidence when being reminded of the emails Mr. Fox had sent to her. I ask you to consider was the crying real? Was there actual tears? Did you see her support person ever hand her Kleenex or her using Kleenex. These are all things I ask you to think about and consider.
Then, in cross-examination, you can characterize -- characterize her demeanour as how you will, but I suggest to you that she was often hostile and argumentative at times, quite different from the way she was in her direct evidence. You also heard excerpts from the statement that Ms. Capuano gave to a Corporal Wilcott on June 13th, 2016 where she was laughing about essentially the same things that she was crying about only days before in her direct evidence.
She explained that laughter is laughing in fear, but you have to ask yourself was that laugher in fear or was it genuine laughter? And she didn't laugh at all during her direct evidence, but she cried when talking about the same points.
I'll go through some discrepancies in her evidence. You'll recall that Ms. Capuano said that Mr. Fox had disappeared with {G*****} for a period of nine or ten years. She said she took measures to find {G*****}, including reporting it to CPS in Arizona and California. CPS is Child Protective Services.
She agreed with me in cross-examination that it was a case of kidnapping, yet she did not report it to the police either during or after that her child had been kidnapped. Then I had Ms. Capuano read in letters or sentences from a letter she had written to Mr. Fox in March 2011 when Mr. Fox had reached out to her to reinitiate contact with {G*****}.
And recall at this point those excerpts were not read to you for the truth of the statement, and I expect Her Ladyship will remind you of this. They were read to you to assess her -- assist you in assessing her credibility as a witness by showing inconsistencies in a prior statement from what she had said on oath in court.
In the letter she admits to thinking that she let {G*****} with Richard during this period, and in fact {G*****} had asked her twice to see him and she said no. She also said, and I quote [as read in]:
I could search him out, that is true, but why would I do that?
And:
I would hope for a phone call one day. Believe me, it's the only thing I wished for, but I'm not going to initiate it.
I suggest to you that this was in fact not a kidnapping or Mr. Fox would have been facing -- could have been facing much more serious charges than he is now, but it was never reported as a kidnapping either during or after.
Also in direct evidence Ms. Capuano denied contacting Mr. Fox's rabbi, but on January 12th, 2015 there's an email saying [as read in]:
I wonder (and so does your rabbi, by the way)_if all of your angst and hatred even really relates to me at all.
She had an explanation for this, that she didn't mean it, but it suggests to me that she perhaps did contact Mr. Fox's rabbi but denied it in direct evidence.
You'll recall also that Ms. Capuano said that her marihuana arrest in Arizona was the only thing she had done illegal. Yet later she admitted that she'd been arrested while working in a strip club, and also arrested for public intoxication, and this time while using an alias, Virginia Tomlin [phonetic], which, as you'll recall from the emails, and I'm about to go through them, was exactly one thing she was continually mocking Mr. Fox for using an alias, and she herself had used an alias and been in fact arrested under that alias.
So you're being asked by the prosecution in this case to make a decision that, beyond a reasonable doubt, Mr. Fox criminally harassed Ms. Capuano during the dates that I mentioned previously.
To convict Mr. Fox of this offence, you must be left without a reasonable doubt that Mr. Fox, and there's five points, and I know Her Ladyship will remind you of this, but I'm going to go through each point individually so I'll list them now.
Point 1, communicated repeatedly, whether directly or indirectly, with Ms. Capuano or anyone known to her, or engaged in threatening conduct directed at her or her family. And that is an or, that's two points, it can be one of the two.
The second point, and that one or both of those forms of conduct harassed Ms. Capuano. The third point, and that Mr. Fox was aware that the conduct harassed Ms. Capuano. The fourth point, and that the conduct caused Ms. Capuano to fear for her own safety or the safety of members of her family, and finally the fifth point, that Ms. Capuano's fear was reasonable in the circumstances.
Of note right now that posting material online, even personal material such as emails and pictures, is not in itself an offence. This happens every day. People make fan sites and post personal information about people every day. That is not a criminal offence.
On the first point, which is did Mr. Fox communicate repeatedly or engage in threatening conduct with Ms. Capuano, yes, on the first one, he did communicate repeatedly with Ms. Capuano, but I suggest to you the communication was not unwanted and in fact was necessary. They were co- parenting, and under court order to have communication to facilitate that parenting situation.
And if you look at the index of the emails, which I believe -- you don't have to go there, you can -- I'll just point it out to you, is at tab 8 of Exhibit 1, and that's the index of all the emails and you can look at those emails, the -- the subject headings for those emails, and many of them are -- are about the child and visitation, access, such and such. So, yes, he did communicate repeatedly, but it was necessary.
Now, was the communication he was engaged in threatening? Conduct is threatening only if a reasonable person in the same circumstances as Ms. Capuano would find it threatening. In deciding this you can consider the context of the relationship, or of the conduct, and the relationship between Mr. Fox and Ms. Capuano.
You'll hear me, as I continue in my submissions, I'm going to refer to the conduct as being what we deal with in this first element of the offence. Also, in order for conduct to be threatening by law, it must be intended to intimidate and instill a sense of fear in the recipient. So there's an intent component to this where the words or whatever they are, there must be an intention to intimidate and instill a sense of fear in the recipient.
In assessing that intent, you can consider all -- all of the circumstances and the accused's evidence, which in this case is his statement to the police.
But I first ask you to consider the nature of the communications between these two, Mr. Fox and Ms. Capuano. Ms. Capuano was provoking, insulting, and taunting Mr. Fox, and we'll go through this shortly. It's questionable, given the circumstances, whether a reasonable person would have felt threatened given the circumstances they found themselves in at the time.
And this is another question you must answer before deciding if this conduct was in fact threatening. The threats the Crown are alleging are mostly threats to make Ms. Capuano lose her job, not be able to find another job, make their son dislike her, make her lose friends, ruin her reputation. There's -- there's further threats but I'll talk about these ones right now. You have to ask yourselves are these threats to mainly -- or merely inconvenience a person and make her life difficult or are these threats designed to intimidate and instill a sense of fear in the recipient?
I suggest for you these are threats to make inconvenience to make life difficult if -- if in fact these threats were carried out, they're not fearful. They're -- it -- they would be very difficult, but they wouldn't instill fear or intimidation.
As far as the email that my friend referred to whereby Mr. Fox discusses in some detail his conversation with {G*****} regarding harming Ms. Capuano, and this will be the one email I will direct you to. It's in Exhibit 1, which is the blue book, tab 11, they're double-sided so it will be the one, two, third page or the second page, but the third page of printing. And at the bottom, and we talked about this in evidence, I'll read this in [as read in]:
He once asked me if I would shoot you. I told him that murder is illegal and immoral and can result in spending the rest of one's life in prison. And that the rest of my life in prison is not a risk I'm willing to take, but otherwise, no, I would have no qualms about it, and that is how much I despise you for the things you've done and continue to do. He did not flinch, he didn't look anything other than indifferent. As best as I could tell, he didn't care. The topic never came up again, and that was during his visit last summer. To be clear, I told Tuchfarber the same thing. There's nothing illegal or threatening about wanting to harm someone as long as you don't act on it. I am reasonable and rational enough to know the difference and to refrain from engaging in such activity.
And the next paragraph is the important one:
And let me be absolutely clear on this point.
Highlighting absolutely clear.
I would never deliberately cause you physical harm other than in self-defence or defence of another. Though that is nothing special toward you, I hold that rule to all people. Also I emphasize that {G*****} brought up the question and I only responded to it truthfully.
The term let me absolutely clear, could it be any clearer than that? He was not threatening her. He was explaining to her his rules of life, and one of them was not to harm her.
This is further supported in the evidence by Mr. Fox's version given through the statement to the police, and I'm not going to read it in, but you can make note to refer to page 43 of the transcript of his statement, and throughout that page Mr. Fox says that both is religion and the law would prevent him from harming her physically. And here he includes that he would not even punch here, much less shoot or kill her.
And to remind you, the Crown mentioned this, this -- this statement cannot be used for evidence of threats themselves, but it can be used -- it was after the charge period but it can be used to consider his intent when he was talking about his earlier statements, and that's what I'm asking you to do with page 43.
As far as Mr. Fox stating he may make calls regarding Mr. Pendleton's security status, again I suggest this isn't to intimidate her and instill fear. This is something any citizen can and perhaps should do if you know somebody with security clearance is not abiding by the conditions of that clearance. This isn't a threat to harm or anything. This is a threat to perhaps make sure he's following through on the conditions of his security clearance.
And as far as Mr. Fox making public a derogatory statement by Ms. Capuano had made about Mexicans, would anybody actually believe that Mexicans are going to attend the residence because she at one time called Mr. Fox a dirty Mexican? That, I -- I say that's not -- highly unlikely.
Moving on the second element of the offence, the Crown must prove, and again beyond a reasonable doubt, but first I will point out if you find on this first element beyond a reasonable doubt that he did not engage in this conduct, that's the end of your analysis. You've deliberated it, and you can acquit.
But if you move on to the second stage, the second element is did the conduct in the first element harass Ms. Capuano, and whether you haven't decided yet, I'm hoping whether that conduct was harassment, as far as the first step, I'm going to call it the conduct, and that's what I'll be referring to.
So now you have to consider whether this conduct actually harassed Ms. Capuano. And, again, if you're left with a reasonable doubt, you can acquit, you must acquit.
So, to find that Mr. Fox's conduct did harass Ms. Capuano, you have to decide again the term beyond a reasonable doubt that Mr. Fox's conduct distressed, tormented or troubled Ms. Capuano. And, again shortly I'll be reading in some emails that you all heard in cross-examination that I say show that she was not -- Ms. -- Ms. Capuano was not distressed, tormented or troubled, and in fact she was taking some pleasure and enjoying the engagement of wits with Mr. Fox.
The third step, the third element of the offence the Crown must prove, as always, beyond a reasonable doubt is was Mr. Fox aware that his conduct harassed Ms. Capuano, and again I suggest to you, no. I again ask you to consider the nature of these communications between Mr. Fox and Ms. Capuano and, in particular, her responses to his messages. This was a back and forth communication that, as we will soon hear, and you did hear, was nasty, from both sides.
My friend made some comments that -- or the Crown made some comments that, well, Mr. Fox's words were much worse than hers. Well, this isn't a balancing practice. This -- one person might have different ways or expressing than the other. This is not a balancing exercise to see who said the worst things. What I'm asking you to consider is what she said in response to what Mr. Fox said.
So was she harassed? You'll recall in cross- examination that I pointed out the timeframe of the email chains, and at some points Ms. Capuano was replying within minutes to Mr. Fox's messages, and often at all times of the day and night; 1:00 a.m., 7:30 a.m., after work, middle of the day. At one point there were several chains going at the same time, and they were both engaging each other in various email chains at the same time.
Ms. Capuano was replying just as equally in what we called and she agreed was banter, and smart wit and insults. Given this, how could Mr. Fox know or expect that Ms. Capuano was feeling harassed when she was throwing back the insults just as well as he was. The language might not have been quite as harsh, but she was often repeating his language which some of the worst of it she was quoting him.
The Crown rightfully said that the blogs are not to be considered because she did not read those, other than for assessing Mr. Fox's intent. These two were playing games and scheming and even double scheming at times where they're remarking about "You did exactly what I wanted you to, and I did what you thought you were going to do," and they were playing off of each other's schemes and words. This -- this was a mutual engagement, these communications.
The next step, four, is did the conduct cause Ms. Capuano to fear for her own safety or the safety of members of her family. This is the element of the offence I'm asking you to spend the most time on and consider very carefully, and pay attention to the evidence you heard in trial, Ms. Capuano's demeanour, the nature of the communications, which I'm now going to go through, not in as much detail as we did at trial, but I'm just going to remind you of some of the phrases Ms. Capuano used.
When I -- when I read a phrase in, I'll -- I'll tell you the topic of the email chain so you can note it and refer to it later in the date. On Friday, January 21st -- 24th, 2014, and this is in the -- on the top at the "love" email Mr. Fox sends an email fairly lengthy, "What is love?" Ms. Capuano replies [as read in]:
Not bothering to read this, not worth my time.
And then at the last -- at the top of this email chain Mr. Fox says, on January 24th:
I don't have time for you right now. I'm busily constructing my scheme to slowly destroy you.
Ms. Capuano replies:
Funny. I thought that was already well thought out.
This -- this just has a tone of not threatening or harassment, just bantering back and forth, two people who don't like each other, there's a little bit of humour here, in my opinion, "Funny. I thought that was already well thought out."
Moving on to the next email chain, which is called "My apparent manipulation of {G*****}", and you'll recall this email chain, and Ms. Capuano accepted it as these are accurate. Mr. Fox copies and pasted a series of text messages into the email where Ms. Capuano sends three in a row, Mr. Fox sends one, and she sends three more in a row.
There's a little bit of argument about, well, Desiree Capuano wrote [as read in]:
That's exactly what the interviewer said, uh, you keep lying to your son and live with yourself at night. I'm done with you. One day maybe he will understand how you manipulated your own child.
Then another one shortly after:
I doubt it though.
Then another one shortly after, a minute later:
How sad that you are the hero he looks up to.
Mr. Fox replied:
I don't believe I'm spoiling {G*****} by...
And this is what the discussion was about, her alleging he was spoiling {G*****}:
I don't believe I'm spoiling {G*****} by providing him a comfortable home and teaching him to be classy and dignified. It's certainly better than forcing him to live like trash. Providing him material things as rewards for doing well is not spoiling him.
Ms. Capuano's three replies in a row, all within two minutes where number 1:
Classy? You have stripper sheets.
Number 2 [as read in]:
After spending an obscene amount of money on him and getting him everything he wants is not rewarding him. Keep filling his head with bullshit.
And lastly:
Only trashy prostitutes have satin sheets. Did you inherit that from your mom?
This is a discussion regarding different views of parenting, which I will assume happens in many separations where the parents are co-parenting, but Ms. Capuano turned it into insulting not only Mr. Fox, but his mother, and -- and I would say quite insulting him and his mother quite well, calling her a trashy prostitute.
And that was not Mr. Fox starting the insulting there. That -- that was uncalled for. They were discussing spending money on the child, and it turned into him giving satin sheets to the child, his mother being a prostitute.
The next email in the chain is:
I'm flattered really.
And this is Thursday, May 29th, 2014.
One thing I'll point out at this time, at tab 8 is the index of the emails and I'll make this simple rather than going through the Crown's book, on May 1st. No, on April 28th, 2014, and -- and the index goes by date, so if you go to -- it's one, two, three, four, five, six, if you flip through seven pages on the right-hand side you'll see, about three-quarters of the way down the page, or right at the bottom, three up from the bottom, it's April 28th, 2014, Desiree Capuano sent cease and desist email. And that email was considered quite serious by her. It was formal notice, "I'm not putting up this anymore," yet on May 27th, she actually starts an email chain called "I'm flattered really." And I asked her in cross-examination, I said, "So you asked Mr. Fox to cease and desist but you, yourself, did not cease and desist?" and she agreed.
So, on one hand, she's saying she was fearful, harassed, threatened, she asks him to stop, and then weeks later she starts an insulting email chain.
And this one, the first email May 27th, she writes [as read in]:
Oh, Patrick or Richard or Morgan or whatever name you're going by this week, it has become clear to everyone...
Everyone in brackets, she seems to be insinuating, and I'm not sure what she's -- why that's in brackets:
... with the amount of hours you spend researching me, collecting information about me, creating accounts for me, sending emails out about me, hiring private detectives to follow me, pretending to be me, not to mention the endless hours of work you put into creating and maintaining an entire website about me, that you completely obsess. Can't imagine how badly I must have broken your heart when we separated 10 or 12, oh, no, 13 years ago, seeing as you just cannot seem to get over me. Honestly, I've never felt more important to anyone before. I mean, you must spend every waking moment consumed with me. I'm not sure how you have time to think about anything other than me. If you even do, I am flattered. I do have to let you know though at this point you're really just coming across as a stalker ex- boyfriend, and although I really hate to hurt you anymore, I'm never get back together with you. So you can reply to this or send out more emails as me, or put up more stuff on my shrine of a website or hell, create an app about me because all it just proves how much you are still infatuated and totally in love with me. Thank you so much for the ego boost. Looking forward to more!!
She's inviting more. She lists out the elements of the offence here where she talks about the website, the emails, threatening to hire a private detective. She lists out the elements of these alleged offences, and asks for more. "Looking forward to more". Mr. Fox replies [as read in]:
Good morning! I can either admit nor deny any of the claims made in your email. I can say, given that emotions are just labels of simple people put on the physical sensations caused by the self-induced though typically subconscious due to conditioning or ignorance, secretion of chemicals by the brain that are highly improbable (your claims, I mean). Most sincerely, Patrick.
He's replied quite logically, no threats. She replies:
You can keep denying your feelings for me, but it's very clear, honestly it's kind of sweet.
Smiley face. This is just after she's -- not just after, weeks after she's asked him to cease and desist and then she engages in this and in fact starts this.
And then there's another email back and forth talking about feelings and -- and the last email of the chain she says [as read in]:
And, by the way, you will never destroy me, ever.
And let's not forget, this is again an email chain she created. She, who is claiming in court here that she's harassed and threatened by this man, yet she taunts him and provokes him with an email chain like that, and thinks it's kind of sweet, all what he's been doing.
The next email chain is entitled "Telephone call", and I'm not going to go through this one in detail, except that she calls him asshole, asks him if he's going to change his name to Asshole Smith. Because she's now called him asshole, is that a formal acknowledgement his new name is asshole? Then there's an argument back and forth, as usual, and the last email at the top she says [as read in]:
The first amendment doesn't protect Canadians, but nice try, smart guy.
Smart in quotations, and she agreed with me in cross-examination that was an insult, meant to be an insult.
The next email is "A little test" and just a couple of things, she calls him Janet, she agreed that was an insult to his manhood. Called -- she said [as read in]:
I don't even have words for how stupid your tantrum sounds. I usually don't respond to your melodramatic stupidity.
Again, she's throwing out the insults as good as she's taking, and in some of these emails, and this one in particular, I ask you to look at the one ahead of it, which doesn't really have insults in it.
The next one is "Your loving home and parental teaching and guidance", Monday, January 19th, 2015, and this one was a nine-page email chain. I'm not going to go through it in great detail. I'll refer to a few points starting on the eighth page. She calls him [as read in]:
Ricky, Richard, Morgan, Patrick, Patricia, Susan, Sally, drunk, high and lonely, grow up and have a nice night Sally.
I also wonder...
And this was read in in direct -- or in cross- examination to Ms. Capuano:
I also wonder, do you fold your hands and cackle malevolently when you talk about destroying me? It seems a bit over the top, much like all of these sad and pathetic emails you keep sending me.
So here's she's saying they're sad and pathetic, not threatening or harassing or fear instilling. Sad and pathetic. Moving on, she calls him [as read in]:
Perry, I assume that is a possible next alias for you.
She calls him sunshine, and this is where she refers to his rabbi:
I wonder (and so does your rabbi, by the way) if all of your angst and hatred even really relates to me at all.
So she either has contact -- contacted his rabbi or she's leading him to believe she has, which is essentially what she's alleging he's done to her, contacting her coworkers, employees, and here she is, whether she did it or not, we don't know, she denied it, but she's trying to make him believe she did, if -- if she's in fact telling the truth when she's here saying she didn't contact the rabbi.
Moving on, she calls him Raymond and she says:
What is it like being so wrong and self- assured all the time? Does it feel blissful? Does it remind you of home? You know, the trailer park that you grew up in.
And this was brought to her attention after she took great umbrage with him continually calling her trailer park trash. Yet, she's thrown the exact same insult, not trash, but "trailer park you grew up in."
Moving on, the same email chain, she calls him Jose:
Please don't make me break out the crayon diagram as it only serves to further degrade you.
She calls him Cthulhu, which I believe she said is a mythical creature that looks like an octopus. Moving on on the same chain, January 14th, 2015, calls him Gary.
I'm glad that you've learned how Google and copy/paste works. That is precious and I would pat your head like the good boy that you are if you were here. A for effort. However, you have again failed to read. F for comprehension.
And continuing on in that same email [as read in]:
You have most definitely achieved your goal with this thread if its purpose was to amuse me and instill a sense of pity for you and all those I have shared this with. The kind of pity generally shown to angry kittens.
So here she's saying his emails instill pity. Before it was sadness, now it's pity. She's used anger.
All sniping aside, you really should get out in the world and do something that makes you happy. Make a friend, get laid, whatever you need to do to relieve that stress and right your heard again. That may be the first step to you being a better person. Or a person at all, as you have not provided me evidence that you are not some form of subhuman like a mole person.
So here she's saying he's not even human, he's subhuman like a mole person.
The same email chain, I'm on page 2 of 9, now this is January 15th, 2015, she calls him Denise. She calls him a sore loser, which, to me, I put to her in cross-examination the theory that this is actually a game, and the term winning and losing, as you'll see often throughout these communications.
Here she supports that by calling him a sore lose. On page 1 of this 9 page chain she now calls him Bill, she says he's on meth, and this -- this is all of note, the email that I talked about where he talks about the discussion with {G*****} regarding shooting and how he would never do it, and talks about his rules of life. These emails I just read in and all the insults is the same email chain just further up, so this is after where he's commented about his conversation with {G*****}, and I read this in, and he talks about being absolutely clear on the point that he would never harm her physically.
I suggest to you that, given that this is the same email chain, and she has no problems insulting him, calling him subhuman, mole man, Gary, Denise, Bill, Jose, Cthulhu, Raymond, trailer park, I suggest to you this is a clear example of how she was not taking that as a threat. She didn't call the police right then. She engaged in insulting and basically what I still call it bantering back and forth.
Moving on to the next email chain which is called "Your talk with {G*****}" January 27th, 2015, and here she calls him Patty, and this is on January 27th at 5:05 -- or 5:45 p.m. she writes [as read in]:
Maturity is not, I can clearly see that maturity is not your strong suit. Did you actually have something of merit to discuss or is this another one of your wailing tantrums you have while you go through some form of narcotic opiate withdrawal?
The next paragraph:
Honestly, if I gave any merit to any of your proposals or suggestions regarding myself or {G*****}, I'd immediately have my head examined.
So what she's saying here is, if she gave any merit to his statements, she should have her head examined.
Maybe you should work on reading comprehension.
The bottom paragraph, the same email:
As for the rest of your delusional rantings, it is clear you have some severe mommy issues, transference issues, and a sick fixation on me. It's obvious you miss me, but it isn't flattering, just very sad.
Moving on to the next chain, "Your belief in my motives", and I'll read in the short email at the start -- or the last email of this chain [as read in]:
Richard, as always every email you have sent is utterly wrong and childish, every email is wrong and childish.
I suggest that doesn't mean threatening or harassing, wrong and childish?
Don't you have a life, better things to do? In your mind are you pinky or the brain? I will assume pinky given the evident insanity and lack of intellect.
And then at the bottom she re -- she signs off:
P.S....
And in capitals:
You mad, Bro?!
Followed by a:
Hahaha.
Now, if that's not taunting, I don't know what is.
The next one "Service of Process." One page -- or a short chain, one page, two emails, it would appear that a B.C. sheriff went to serve Mr. Fox. He refused service because of the name on the document. She replies [as read in]:
Exactly what I wanted you to do. You're such an idiot. Thank you very much!!
Now, you'll recall in direct examination Ms. Capuano cried about Mr. Fox's plotting, but here this is like double plotting. They're each doing what they think the other one doesn't want them to do. It's very confusing to me reading this, but he did what she wanted him to do, and she thanks him.
The next email chain is "Re Mail" April 9th, 2015, and I'll only read in one paragraph, Desiree Capuano wrote, and here she calls him Richard, halfway down the first page [as read in]:
I enjoy our banter as much as the next person, so long as said person is going through a quadruple root canal without pain medication and multiple broken bones.
She's using humour in here.
The next -- the next email chain "Something to consider", and I'll start on the first page three-quarters from the bottom, May 11th, 2015, 10:48, Capuano writes [as read in]:
To each their own. You're allowed to have your own opinion, but that's all it is, your opinion. Have a super awesome and wonderful day!!
Moving up, he replies about opinion, and her reply is:
Not with a defence, little man.
And Ms. Capuano agreed that this was an insult at Mr. Fox's size, being he's not a very tall man. And then Mr. Fox says:
Which is exactly what you say when you have no choice but to realize you are wrong and your argument has no merit. Good enough for me.
He's saying, good enough, that's it. She -- and then she replies again:
Keep telling yourself that.
With a smiley face. Again as in all of these emails I ask you to consider if that's a person who was in fear or threatened or harassed.
The next email chain is "More of what I know", and this is a three-page chain, on the third page, the top Desiree Capuano wrote [as read in]:
Oh, you little man. I don't fear you or {G*****}'s opinion of me. I am also not preventing visitation. Try as you might to get me to say no, I will not.
So they're talking again how she thinks he's trying to get her to say no, and -- but the important part is here she says "I don't fear you." Yes, of course, she had an explanation for this, but it's written out clearly "I don't fear you."
Then on page 2 of 3, halfway down, May 11th, 2015, 10:40 a.m. Desiree Capuano wrote [as read in]:
Oh, don't you know? I'm trying to play right into your plan of turning {G*****} against me by showing him how you never get annoyed.
And then in quotation marks:
Why is it you don't just shut up and fuck off? Clearly not annoyed.
And to be fair, she's quoting Mr. Fox "Why don't you just shut up and fuck off," but still she's playing right into his plan. This is again double scheming where they're each scheming and trying to anticipate what the other one is scheming, and playing into it or not playing into it.
They go through some dictionary definitions, and then on page 1, the second email down, Desiree Capuano wrote [as read in]:
This has been funny, really. I understand you think you won your argument and you're proven once again to show how ignorant I am and are gloating about how the whole world is going to see me for the way I really am, you keep thinking that. Your arrogance and ignorance will be your undoing. I'm a very patient person...
Smiley face:
.. talk to you later...
Smiley face. Again, I ask you to consider is this a person who's harassed, in fear, and threatened or a person who's engaging in this type of communication that the Crown is here alleging is criminal?
The next email chain is the "Motivation for your behaviour". It's a three-page chain, the second page, the second paragraph down, May 11th, 2015, 10:49 a.m., Desiree Capuano wrote [as read in]:
Richard, everything you say is so far out of the realm of reality it doesn't bother a rebuttal, but you keep thinking you're far superior. I'm sure it makes you feel better about the world.
Everything he says, in her words, is so far out of the realm of reality that it doesn't bother a rebuttal, which could suggest that she doesn't believe anything he's saying, doesn't even deserve a rebuttal, mind you, she does rebut everything he says, the most things he says.
And then at some point in this chain Mr. Fox has called her a stupid fucking cunt, she sends a one word email:
Nope, signed...
In quotations:
.. the stupid fucking cunt.
Which suggests to me that insult, which to me is one of the worst swear words that exists, didn't really bother her that much that she quoted it and signed off as it.
The next email chain is "{G*****}'s summer visitation", 2015, a seven-page chain. And this is -- this is basically a large argument back and forth about itinerary for a vacation for {G*****} to go down. Page 2 of 7, Ms. Capuano, at May 7th, wrote and starts with [as read in]:
Actually you inferred with almost every visitation, but it's not the contents of this.
At the end of it she replies with her view, and then at the end she says [as read in]:
Where's your argument again?
So she's not only trying to get her point across saying what she said was important to her in many of these communications, she wanted to get the last word. In this -- in this case and many cases, she's inviting him, "Where is your argument again?" She's inviting him to convince -- continue on in this correspondence, this argument, this bickering. She's not trying to end it. She's not threatened, she's not in fear.
And then on the first page of this chain, second email, the second email down, or third, May 11th, 11:12 a.m., Desiree Capuano wrote [as read in]:
See, Richard, it doesn't matter...
And this is after two more pages of arguing since the one I just read in:
See, Richard, it doesn't matter what I say or how I say it, you are bound and determined to argue everything I say, and you adamantly refuse to even attempt to understand what I'm talking about. So tell me why I should try and defend myself against a person like that? It's a futile effort and I have better things to do. You nitpick like a little old lady (oh, my God, are you going to say that I'm not racist against little old ladies???)
And then at the top it says:
And you are incapable of having a conversation without a dictionary, encyclopedia, and case law book for reference.
Again, this isn't a person in fear.
The next email chain, and I'm just about done with the email, it's called "Values". And this is from May 11th, 2015. You'll recall this is when there were several email chains going on. In this one, Mr. Fox, and this is on the second page, makes a point of saying that he uses the coffee mug every day that {G*****} bought him. Desiree Capuano wrote, May 11th, 2015, 10:50 a.m. [as read in]:
HA!
Capital letter:
HA! I picked out your precious coffee mug that you use every day. Guess it's time to trash it now, huh?
And then they have a discussion, it goes further on, the bottom of page 1, and at the bottom Mr. Fox had asked Desiree Capuano earlier in this chain what she has done to make the world better, list one thing, and she says, she quotes him to:
List one thing that you've done in your life to make the world a better place, either directly or indirectly.
That's Mr. Fox's question:
Yep, I gave birth to your son!!! Bam!! That just happened!!
That's like a victory, a victory where like bam, exclamation mark, and it just shows what a game this was between the two of them. They're like she's cutting and pasting his words, and she gets a win, a bam. And again in this chain she sends to emails in a row without him even putting in a response.
The next email chain "Carrington College". And I won't refer to anything in this email chain. You'll recall this is the email chain where she refused to say where she worked, she asked him, he replied right away "yes" where he works.
The last email in Mr. Fox's book is "{G*****}'s adventure with the RCMP" and I'll only rely on hers at the top, Ms. Capuano's first email [as read in]:
When you said or would that have been too complicated for you to think of, I meant -- I meant you to use the word too. You really should use a dictionary. That sort of poor grammar common amongst the lower echelon of society makes it difficult to take you seriously. Not that anyone does anyway.
So she's saying here it's difficult to take him seriously, and likely nobody does. Your Honour, I'm noting the jury yawning, and would you like me to break now? I don't have much to go. Maybe 15 minutes maximum.
THE COURT: I think we will take a break. Members of the jury, we'll break for the afternoon recess and we'll continue on.
(JURY OUT)
THE CLERK: Order in court. Court is adjourned for the afternoon recess.
MR. LAGEMAAT: I apologize for calling you Your Honour.
THE COURT: Oh, don't worry about that. It happens plenty frequently. You have another 15/20 minutes or so. Mr. Fox, when you estimated 15 minutes, your estimates have been fairly reliable, I think.
THE ACCUSED: Aside for the three weeks.
THE COURT: Yes.
THE ACCUSED: Yes, I'm still thinking that about 15 should be sufficient.
THE COURT: So that should get us finished today. All right. We'll break now.
THE CLERK: Order in court. This court is adjourned for the afternoon recess.
(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)
(PROCEEDINGS RECONVENED)
THE COURT: Are we ready? Yes.
THE SHERIFF: The jury, My Lady.
(JURY IN)
CLOSING ADDRESS FOR ACCUSED ON COUNT 1 BY MR. LAGEMAAT, CONTINUING:
MR. LAGEMAAT: There's one more element of the offence that the Crown must prove beyond a reasonable doubt, and again at any one of these steps you find the Crown has not proven it beyond a reasonable doubt, that's the end of it. We're now at the last one, whether Ms. Capuano's fear, if you found there was fear in the last step was reasonable in the circumstances, and for this you're being asked to consider would a reasonable person in Ms. Capuano's circumstances would have felt, and in assessing this you can consider the circumstances and the relationship that Ms. Capuano finds -- found herself in at the time.
In closing, I'm going to remind you of a couple of theories that were put to Ms. Capuano in cross-examination. First, that this was a game between two smart people, with a very good grasp of the English language and, knowing each other, what words could cut and what words couldn't. It was quite witty, the communications between them, and when I say back and forth I'm going to ask you to at some point refer to tab 8 of the Crown's book of -- that's Exhibit 1, and -- and that's the index of all the emails, and just have a look at that, and note how many are from each party.
And also note early on in the -- in the index when Ms. Capuano claims she wasn't replying to any emails, just note if she was in fact replying the whole way through or not. Now, you won't see all those emails, you'll only see the emails that the Crown and I have put in, but you'll get an idea from that index the number of emails, who they're from, who sent them, and to who.
Ms. Capuano said several times that she was engaging in this banter because she was afraid, and I didn't really get a clear explanation of how being afraid would result in engaging in banter and actually insulting, provoking the person you're afraid of, but she did say that in cross- examination.
She also said she kept the banter going because she wanted to be the one to get the last word. There's two different versions of why she kept the banter going or kept replying to Mr. Fox's email, and she also said that she kept it going to get information from him. So she's given various reasons of why she was replying, insulting him, provoking him, none of which were that she wasn't in fact afraid of him and was enjoying it, as she said it several times.
There were several references in the emails to winning and losing, scheming, and what I've referred to as double scheming which was anticipating the other one's scheme, and playing on it. Ms. Capuano also admitted to calling in tips which resulted in having Mr. Fox deported from the country, and she agreed with me that, if Mr. Fox was in Canada, it would be much more difficult for him to fight a custody battle, and that is in fact what happened. She has custody and Mr. Fox has not seen {G*****} for quite some time.
I put to her that this was just a custody battle that went way further and nastier than the average one, and again if -- when you look at the index of the emails you'll see that originally the emails were more about visitation, access, but the subject matter of the emails went off the rails at one point, and I suggest on behalf of both parties it went off the rails. Both parties are equally responsible for the -- the tenor and the nature of the communications.
So, that's my submissions, and I'll remind you, you've heard a lot of evidence, you've got more evidence than you've heard in the books. You can choose to read it, it's a lot of evidence, you might not like the words Mr. Fox uses, or the fact that he has posted these emails and many other things to a website. That, alone, is not a criminal offence, and as a member of a jury again I'll remind you you have a grave responsibility. Society has asked you to make a decision regarding a person's liberty, and that decision should be informed and based on the evidence and the law, and we've gone the elements of the offence, and we've gone through the evidence, and that cannot be a decision based on previous behaviours or previous bad character or dislike of an accused or a witness. It's got to be an informed, rational, logical decision.
This is a great burden on you. I'm asking you to take this burden very seriously, and that's the end of my submissions. Thank you.
THE COURT: All right. Mr. Fox, you're now going to make the defence closing address concerning Count 2.
CLOSING ADDRESS FOR ACCUSED ON COUNT 2 BY PATRICK FOX:
THE ACCUSED: With respect to the s. 93 firearms charge, the possession in a place not authorized, there's really only one question that needs to be determined, and that's whether or not the firearms were present at the Packaging Depot in Burnaby between the dates of May 17th and June 3rd, 2016.
There's no question that the firearms did end up in Los Angeles, I don't dispute that, and they were seized by the ATF in Los Angeles, but we did hear from Mr. Mangat, the owner of the Packaging Depot, and he testified that he had no knowledge or nor did he ever see any handguns at the Packaging Depot.
He did have knowledge of -- he testified to 14 boxes being shipped from the Packaging Depot, and we later heard from Agent Spizuoco from the ATF that he had seized 25 boxes from my friend, Liz' home in Los Angeles, so there's clearly a discrepancy there of at least 11 boxes.
Now, we also heard from Agent Spizuoco that he had no first-hand knowledge, he had no knowledge at all really of when any given boxes may have arrived at Ms. {M*****}' home, who might have come -- came into contact with them, or what their contents were at the time that they were shipped. He only knew what the contents were at the time that he seized them.
And he further testified that he couldn't say with any certainty if the boxes had been opened or their contents had been changed.
Now, the Crown certainly wants you to infer that the fact that the firearms were found in a box that had a shipping label from the Packaging Depot must mean that the -- the firearms were at the Packaging Depot in that box and shipped from the Packaging Depot. Unfortunately -- well, I shouldn't say unfortunately. There is quite simply though no direct evidence to show that the firearms were ever there, and Mr. Myhre, the Crown, did make reference to some of the statements that I had made when I was being interviewed by Constable Potts.
However, when you review those statements, which you will find from page 67 to page 82 of the transcript, you will notice there is actually no statement in there that the firearms were ever present there or for that matter that the firearms were shipped, either by mail or by a courier.
Throughout the statement typically the term that's used is that they were sent to Los Angeles, so one thing that I would suggest, you have seen in Exhibit 2, which was given to you by the Crown, there is a U.S. birth certificate and a British Columbia driver's licence both with my identifying information, given those documents, it is my suggestion that it is entirely reasonable that I would have no difficulty whatsoever going back to the United States.
And what I would ask you to ask yourselves whether it would be reasonable to assume that either I could have simply put the computer containing the firearms or the firearms by themselves into my car and simply drove down -- driven down to Los Angeles with them, and then after getting them there put them into whatever box happened to be available because I didn't want or let's say my friend Ms. {M*****} would not want a bunch of computer equipment lying around her living room.
But I suppose another thing that I would ask you to consider is how unreasonable it would be that a person would have a box that's not being used, let's say it was being used at some point, you take the contents out of the box, so you now have a box that's sitting there, and you have some items, for example, a computer that you want to store. Is it really so unreasonable to put that computer into that box and then put it into the closet? That box then later unfortunately was seized by the ATF and the firearms were found in there.
You may also notice when you look at the transcript of when you listen to my interview with Constable Potts, one of my significant concerns, which I make reference to repeatedly, well, quite a number of times actually, is that I really wanted to keep my friend, Ms. {M*****}, out of any potential trouble. To do that, it would be important that she not have any knowledge of the firearms because of her status or her situation, she's an immigrant in the U.S. herself, and so I would not want to do anything that could potentially cause her unnecessary complications by bringing her attention to the possibility of any firearms that might be in those boxes.
And I would say that that is really all that I would have to say about the firearms charge, and whether or not I believe that there is sufficient evidence to establish that the firearms were actually present at the Packaging Depot. It's my -- it's my submission that there are certainly a lot of explanations for how the firearms could have gotten to Los Angeles, but the burden is on the Crown to prove, not that the firearms got to Los Angeles, but that the firearms were at the Packaging Depot, and it's my opinion and it's my belief that the Crown just hasn't -- hasn't established that.
Thank you.
THE COURT: Thank you very much, Mr. Fox. Members of the jury, I'm going to ask you to go to the jury room briefly now while I have a bit of a chat with counsel and Mr. Fox about timing and then I can give you a time for tomorrow that will be the most realistic so that we use your time as efficiently as we can.
All right. So if you wouldn't mind, please?
(JURY OUT)
THE COURT: All right. I do have revised copies of the draft charge, Madam Registrar. One should be the next exhibit for identification, and the others are for counsel and Mr. Fox. There's one page missing. I've forgotten what number it is, it's in the 30s, it's the page where there are headings, the Crown position, the defence position, and in that draft those positions are not developed, because I'd not yet heard the closings.
So what exhibit is that?
THE CLERK: Exhibit J, My Lady.
MARKED J FOR IDENTIFICATION: Document titled
"Final Instructions to the Jury" (revised)
THE COURT: I will draft a brief overview of the Crown position and the defence position. You probably want to see that before I charge the jury. I could probably have something by about four o'clock, ten past 4:00 or something like that. That might be the best way to handle this. I'm hesitant to leave it until tomorrow morning, although we can do that, but Mr. Fox, you don't get here till, what time is it?
THE ACCUSED: It's usually about 9:30ish.
THE COURT: All right. How would counsel like to handle this?
MR. MYHRE: It's somewhat ironic that I have to say this, given that I was late for everybody, but I do have a childcare commitment that I could do 4:15. Beyond that, it becomes difficult to get to where I need to be.
MR. LAGEMAAT: I'm available, My Lady, to wait.
THE ACCUSED: I wouldn't be opposed to Mr. Lagemaat receiving something and emailing it to me.
THE COURT: How does that help? Oh, you mean the business about the Crown and defence positions?
THE ACCUSED: I'm just getting -- yes.
THE COURT: All right. Well, perhaps we'll do that, if you -- if I've not been able to do this by 4:15, as for timing tomorrow, I think -- how many pages is the charge? I don't actually have a copy of it.
MR. MYHRE: Thirty-five.
THE COURT: Thirty-five, two of them are table of contents, 33, there'll be a bit more, a discussion of the positions, that's going to be a little less than two hours, so I'll ask the jury to come at 10:30 tomorrow, and that gives us a little bit of time to deal with any concerns? Mr. Lagemaat?
MR. LAGEMAAT: Yes.
THE COURT: And we can start at 9:30? Can we start at 9:30 tomorrow?
MR. MYHRE: Yes, My Lady.
MR. LAGEMAAT: Yes, My Lady.
THE COURT: Mr. Fox, obviously your timing is a little bit out of your control, but as soon as you're here, we'll start.
Mr. Sheriff, should I have the jury come in or will you just ask them please to come at 10:30 tomorrow morning?
THE SHERIFF: I can ask them, My Lady.
THE COURT: All right. Thank you. And tomorrow will be the day that I give them my final instructions.
MR. MYHRE: So you're going to put together, I'm just clarifying, the both positions and would you like me to wait and come back into court or will it be something you -- you would like me to pick up at the registry or? But then what time does the registry close?
THE COURT: Madam Registrar, are you able to send something out by email at about 4:15?
THE CLERK: I could, My Lady. I'm not sure if counsel is able to tell the front desk that they need to get in afternoon four o'clock. I don't know if that's an option, if there's a paper copy.
THE COURT: All right. No, it's better by email.
THE CLERK: I can email them, My Lady. .
THE COURT: Thank you. There's an issue with it going to Mr. Fox. I think we're just going to -- can you tell the jury 10:30 tomorrow?
THE SHERIFF: Yes, My Lady.
THE COURT: I think we're just going to stand down and let me see what I can do, and we'll come back into court probably at about 4:00.
MR. MYHRE: My Lady, I'm sorry to bring this up, but we have two concerns about the tail end of my friend's submission. My friend reminded the jury about several theories that he had put to Ms. Capuano during cross-examination. I believe your instruction, if I recall correctly, already includes an instruction to the effect of it's the person's evidence and not counsel's questions. Sorry, what the person says and not what counsel has to say in terms of the evidence. So I don't think anything more needs to be said about that, if I'm correct in my recollection of the charge.
The other thing I'm concerned about is my friend characterized the decision they have to make as one to do with Mr. Fox's liberty, and I respectfully submit that incorrect. They have to decide whether he's guilty. Any questions about his liberty are for the court.
THE COURT: Does something need to be said on that? There is something in the charge about questions that sometimes --
MR. MYHRE: If that's -- if there's something along those lines, I don't think anything needs to be said in particular.
THE COURT: Mr. Fox made mention of Ms. {M*****} being an immigrant. Is there any evidence of that, and therefore there is more concern to keep her out of trouble?
THE ACCUSED: In my statement to the RCMP it was mentioned, I would have mentioned it to Constable Potts. In fact, I probably said to him that's the reason or part of the reason that -- that I was so concerned about getting her into any kind of trouble.
THE COURT: Is that your recollection, Mr. Myhre?
MR. MYHRE: I honestly don't recall that particular word being used. I'd have to go look at the statement again, My Lady. I can certainly double check that for tomorrow.
THE COURT: If it's not there, is there something that needs to be said about that not being evidence or is it of no concern?
MR. MYHRE: I would tend to the latter view. I don't think a huge amount turns on that fairly specific issue.
THE COURT: All right. We'll stand down and resume at about five past 4:00.
THE CLERK: Order in court. Court stands down.
(PROCEEDINGS ADJOURNED UNTIL 4:05 P.M.)
(PROCEEDINGS RECONVENED)
THE COURT: Madam Registrar, here's some copies of the missing portion of the draft. One should be the next exhibit for identification, which would be?
THE CLERK: Exhibit K, My Lady.
THE COURT: Say it again, please?
THE CLERK: K.
THE COURT: All right. Thank you.
MARKED K FOR IDENTIFICATION: Missing portion
of Charge relating to Crown and defence
positions
THE COURT: Would you hand those out, please? Do you want to take a fairly quick look now in case anything springs immediately to mind that I -- and bearing in mind that Mr. Myhre needs to leave in six minutes time. Are there any comments at this point?
MR. LAGEMAAT: One -- one thing, My Lady. Mr. Fox is pointing out a typo at paragraph 168, the first line.
THE COURT: I'm quite sure there will be typos in here.
MR. LAGEMAAT: Yes, yeah.
THE COURT: But I appreciate them being pointed out. Thank you.
THE ACCUSED: I -- I realize it's a draft.
THE COURT: One-sixty-eight?
THE ACCUSED: It should be "Mr. Fox's conduct did not harass Ms. Capuano".
THE COURT: Ah, thank you. Yes?
MR. MYHRE: And just one think, My Lady, at paragraph 160, the Crown also made reference to a portion of Mr. Fox's statement that I wasn't able to -- it wasn't just -- it wasn't just circumstantial, in the Crown's submission.
THE COURT: Give me the paragraph number again?
MR. MYHRE: Oh, 160 of the charge.
THE COURT: What portion of the statement are you relying on that you say is not circumstantial evidence?
MR. MYHRE: Mr. Fox stated, I'll find the reference. My submission to the jury was that his statement at paragraph 1836 was an admission that he was shipping, and Mr. Fox's submission on that is there's no reference to firearms, if I could summarize it.
THE ACCUSED: Okay. This is talking about this stuff in general, not specifically firearms.
THE COURT: So how do I use paragraph 1836 in the Crown's submission? It doesn't seem to be something that you've characterized as a -- an admission of shipping the firearms.
MR. MYHRE: That was what I put to the jury and that is the Crown theory, that in the context, that's what he's referring to.
THE COURT: Oh, I see. Let me back up a bit. I see. All right. So I'll find a way to address that while also including reference to the defence position about that. All right. Anything else at this point. We have one minute only.
MR. MYHRE: No, My Lady.
THE COURT: All right. So what I suggest is that counsel review that more carefully than has been time for it, and at 9:30 tomorrow give me any further comments on the draft charge. The more specific, the better, as far as making a quick change, if changes are needed, but assuming there -- well, that should give us time to address the draft, and then get the copies made for the jury, and begin at 10:30. I think the charge, as I said, will take a little bit under two hours, with a break that's probably going to take us to 12:30, I would think.
Anything further?
MR. MYHRE: No.
MR. LAGEMAAT: No, My Lady.
THE COURT: Thank you.
MR. MYHRE: My Lady, I'm sorry again for making everybody wait today. It's --
THE COURT: All right.
MR. MYHRE: -- extremely embarrassing.
THE CLERK: Order in court. Court is adjourned to June 27th, 2017 at 9:30 a.m.
(PROCEEDINGS ADJOURNED TO JUNE 27, 2017, AT 9:30 A.M.)
Transcriber: C. Banks