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Desiree Capuano & James Pendleton
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R. v. Patrick Fox - Trial Transcripts

Highlighting Legend
Perjurious testimony which defense counsel (Tony Lagemaat) and Crown Counsel (Mark Myhre) knew of
Critical statements - e.g. inciminating admissions
Statements of interest - e.g. testimony which Lagemaat should have known to pursue further or cross examine on, but didn't
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27178
Vancouver Registry
In the Supreme Court of British Columbia
(BEFORE THE HONOURABLE MADAM JUSTICE HOLMES AND JURY)
Vancouver, B.C.
June 27, 2017
REGINA

v.

PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
(Excerpt - From 10:31:57 A.M. to End of Day)
(Including Charge to the Jury)
COPY
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 27, 2017
REGINA

v.

PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
(Excerpt - From 10:31:57 A.M. to End of Day)
COPY
  • Crown Counsel:M. Myhre
  • Defence Counsel:A.J. Lagemaat
J.C. WordAssist Ltd. (Vancouver)
Suite 614 - 808 Nelson Street, Vancouver, B.C. V6Z 2H2
Phone 604-669-6550

INDEX

  • CHARGE TO THE JURY:1
  • CHARGE TO THE JURY, Continuing:37
  • CHARGE TO THE JURY, Continuing:43

EXHIBITS

  • EXHIBIT L FOR IDENTIFICATION: Document titled "Final Instructions to the Jury"34
  • EXHIBIT M FOR IDENTIFICATION: Verdict Sheet35
  • EXHIBIT N FOR IDENTIFICATION: Question from the jury number 136
  • EXHIBIT O FOR IDENTIFICATION: Question from the jury number 239

RULINGS

  • Nil
Proceedings

Vancouver, B.C.
June 27, 2017

(EXCERPT COMMENCES AT 10:31:57 A.M.)
(JURY IN)
THE SHERIFF: The jury, My Lady.
CHARGE TO THE JURY:
THE COURT: Good morning, members of the jury. To assist you in your deliberations, I have prepared a written copy of my instructions or charge and, Mr. Sheriff, if you could begin the process of handing that out, please.
I will be reading this to you so that you can follow along if you wish, it is up to you. But if you do follow along, I ask that you not read ahead.
As I am reading these instructions, I may discover some minor errors that I didn't catch earlier. The charge or the instructions that you must follow will be what I say to you in this courtroom and not what is written in the written version that you now have, if there are any differences between the two.
You will see at the front there is a table of contents. That is simply for your reference later if there is anything that you wish to go back to while you are in your deliberations.
So I will begin at what is page 3 in the written version.
You will soon be leaving this courtroom and you will start discussing the case in the jury room. It is time for me to tell you about the law you must follow in making your decision.
When we started this case, and at various times during the trial, I told you about several rules of law that apply in general, or to some of the evidence as it was received. Those instructions still apply.
I am now going to give you further instructions. These instructions will cover a number of topics. Consider them as a whole. Do not single out some as more important and pay less or no attention to others. I am giving you the instructions to help you make a decision, not to tell you what decision to make.
First, I will explain your duties as jurors, and tell you about the general principles and rules of law that apply in all jury cases.
Second, I will advise you of the specific rules of law that govern this case. I will explain how the rules apply to the evidence. Even if I do not refer to all of the evidence governed by a specific rule, you must apply each rule to all the evidence to which it relates.
Next, I will explain to you what the Crown must prove beyond a reasonable doubt in order to establish the guilt of Mr. Fox. As I do that, I will discuss with you the issues you need to decide, and I will review for you the evidence that relates to those issues. I will also tell you what verdicts you may return on each of the charges.
After that, I will summarize the positions that counsel have put forward in their closing addresses, and I should say Mr. Fox as well, and I will end by explaining how you should approach your discussion of the case in the jury room.
I expect that I will suggest a break probably not quite halfway through these instructions. It probably will fall a tiny bit later than our usual break because we had a later start.
In this trial, I am the judge of the law. You are the judges of the facts.
As judge of the law, it is my duty to preside over the trial. I am the sole judge of the law, and it is your duty to accept the law as I explain it to you. If I am wrong about the law, my error can be corrected by the Court of Appeal, because my instructions are recorded and they will be available if there is an appeal. However, your deliberations are secret. If you wrongly apply the law, there will be no record of your discussions for the Court of Appeal to review. It is therefore important that you accept the law from me without question; you must not use your own ideas about what the law is or should be.
It is your duty to decide whether the Crown has proven Mr. Fox's guilt beyond a reasonable doubt. It is not my role to express any view on the guilt or innocence of Mr. Fox. If I do so inadvertently, you must ignore that view.
You have now heard all the evidence that will be called in this case. There will be no more evidence. You must make your decision based on all the evidence presented to you in the courtroom and only on that evidence. I might comment or express an opinion about the evidence. If I do that, you do not have to agree with me.
You must consider the evidence, and make your decision without sympathy, prejudice, or fear. You must not be influenced by public opinion. Your duty as juror is to assess the evidence impartially.
The only information that you may consider is the evidence that has been put before you in the courtroom. You must disregard completely any information from any other source, whether radio, television, newspaper, internet, Twitter, Facebook, social media of any kind, that you may have heard or seen or read in relation to this case, or concerning any of the people or places involved or mentioned in the case. Any information about the case from outside the courtroom is not evidence.
Possible penalties for the offence have no place in your discussions or in your decision.
As you approach your task, it is your duty to consult with one another and try to reach a just verdict according to the law. Your foreperson will preside and assist you in the orderly discussion of the issues. You should each have the opportunity to express your own points of view without being unnecessarily repetitive. When you are discussing the issues, you should listen attentively to what your fellow jurors have to say. Approach your duties in a rational way and put your own points of view forward in a calm and reasonable manner. Avoid taking firm positions too early in your deliberations. Consider the views of your fellow jurors with an open mind before reaching your own decision.
Any verdict you reach must be unanimous. Unless you are unanimous in finding Mr. Fox not guilty, you cannot acquit him. Nor can you return a verdict of guilty unless you agree unanimously that he is guilty.
Each of you must make your own decision about whether Mr. Fox is guilty or not guilty. You should reach your decision only after consideration of the evidence with your fellow jurors. Your duty is to try to reach a unanimous verdict. However, you are entitled to disagree if you cannot reach a unanimous verdict after a sincere consideration of the facts and the law, and an honest discussion with your fellow jurors.
In my instructions to you, I will briefly review parts of the evidence and, in some areas, will relate them to the issues you have to decide. I might mention evidence you think is insignificant or overlook evidence you think is important. I might make a mistake about what a witness said. You should always remember that it is only your memory and understanding of the evidence that counts in this case, not mine, not that of counsel or Mr. Fox. I remind you that you must consider all of the evidence, not just the parts of it that I mention.
I may also comment on or express an opinion about issues of fact. If I do that, however, you do not have to reach the same conclusion. You, not I, decide what happened in this case.
I will turn now to the general principles of law that apply in all criminal jury cases, in all criminal cases.
The first and most important principle of law applicable to every criminal case is the presumption of innocence. Mr. Fox enters the proceedings presumed to be innocent, and the presumption of innocence remains throughout the case unless the Crown, on the evidence put before you, satisfies you beyond a reasonable doubt that he is guilty.
Two rules flow from the presumption of innocence. One is that the Crown bears the burden of proving guilt. The other is that guilt must be proven beyond a reasonable doubt. These rules are linked with the presumption of innocence to ensure that no innocent person is convicted.
The burden of proof rests with the Crown and never shifts. There is no burden on Mr. Fox to prove that he is innocent. He does not have to prove anything.
So what does the expression "beyond a reasonable doubt" mean? A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in the proceedings. Rather, it is based on reason and common sense. It is a doubt that arises logically from the evidence or from an absence of evidence.
It is virtually impossible to prove anything to an absolute certainty, and the Crown is not required to do so. Such a standard would be impossibly high. However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. You must not find Mr. Fox guilty unless you are sure he is guilty. Even if you believe that Mr. Fox is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to Mr. Fox and find him not guilty, because the Crown has failed to satisfy you of his guilt beyond a reasonable doubt.
Later, I will explain the essential elements of the offences that the Crown must prove beyond a reasonable doubt to establish Mr. Fox's guilt. There are five elements of the charge in Count 1, and four elements of the charge in Count 2. For the moment, the important point for you to understand is that the requirement of proof beyond a reasonable doubt applies to each of those essential elements. It does not apply to individual items of evidence.
In carrying out your task to decide whether the Crown has proven Mr. Fox's guilt beyond a reasonable doubt, you must look at the evidence as a whole.
If you have a reasonable doubt about Mr. Fox's guilt arising from the evidence, the absence of evidence, or the credibility or the reliability of one or more of the witnesses, then you must find him not guilty.
So in short, first, the presumption of innocence applies at the beginning and continues throughout the trial, unless you are satisfied, after considering the whole of the evidence, that the Crown has displaced the presumption of innocence by proof of guilt beyond a reasonable doubt.
Second, if, based upon the evidence, you are sure that Mr. Fox is guilty of the offence in issue, that demonstrates that you are satisfied of his guilt beyond reasonable doubt, and you must find him guilty of the offence.
Third, if you have a reasonable doubt about whether Mr. Fox is guilty of the offence, you must give him the benefit of that doubt and find him not guilty.
I will speak now about assessing the evidence.
To make your decision, you should consider carefully, and with an open mind, all the evidence presented during the trial. It will be up to you to decide how much or little of the testimony of any witness you will believe or rely on. You may believe some, none, or all of the evidence given by a witness.
When you go to the jury room to consider the case, use your collective common sense to decide whether the witnesses know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little to believe of a witness's testimony or how much to rely on it in deciding this case. But I will give you a few questions you might keep in mind during your discussions.
Did the witness seem honest? Is there any reason why the witness would not be telling the truth?
Does the witness have any reason to give evidence that is more favourable to one side than to the other?
Was the witness in a position to make accurate and complete observations about the event? Did he or she have a good opportunity to do so? What were the circumstances in which the observation was made? Was the event itself unusual or routine?
Did the witness seem to have a good memory? Does the witness have any reason to remember the things about which he or she testified? Did any inability or difficulty that the witness had in remembering the events seem genuine, or did it seem made up as an excuse to avoid answering questions?
Did the witness's testimony seem reasonable and consistent? Did the witness say or do something different on an earlier occasion?
Do any inconsistencies in the witness's evidence make the main points of the testimony more or less believable and reliable? Is the inconsistency about something important or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? Is the inconsistency because the witness said something different, or because he or she failed to mention something? Is there any explanation for it? Does the explanation make sense?
What was the witness's manner when he or she testified? Do not jump to conclusions, however, based entirely on how a witness has testified. Looks can be deceiving. Giving evidence in a trial is not a common experience for many witnesses. People react and appear differently. Witnesses come from different backgrounds. They have different abilities, values, life experiences. There are simply too many variables to make the manner in which a witness testifies the only or most important factor in your decision.
These are only some of the factors you might keep in mind when you go to your jury room to make the decision. These factors might help you decide how much or little of a witness's evidence you will believe or rely on. You may consider other factors as well.
In making your decision, do not consider only the testimony of the witnesses. Take into account, as well, the exhibits that have been filed, and decide how much or little you will rely on them to help you decide this case. Take into account also the admissions, which set out facts that you must take as proven, and I will remind you about the admissions a bit later.
I am going to speak to you for just a moment about reasonable doubt and credibility.
Reasonable doubt applies to the issue of credibility. On any given point, you may believe a witness, disbelieve a witness, or not be able to decide. You need not fully believe or disbelieve one witness or a group of witnesses. If you have a reasonable doubt about Mr. Fox's guilt arising from the credibility of the witnesses, then you must find him not guilty.
I will speak now about types of evidence.
You must consider only the evidence presented in the courtroom. Evidence is the testimony of witnesses and the things entered as exhibits and the admissions.
The evidence of witnesses includes what each witness said in response to questions asked. The questions are not evidence, unless the witness agreed that what was asked is correct.
The indictment that you heard read out when we started the case is not evidence. What the lawyers or Mr. Fox or I say when we speak to you during the trial is not evidence.
As I explained at the beginning of the trial, you may rely on direct evidence and on circumstantial evidence in reaching your verdict - - and I will remind you of what those terms mean.
Usually, witnesses testify about what they personally saw or heard. For example, a witness might say that he or she saw it raining outside. That is direct evidence.
Sometimes, however, witnesses say things from which you are asked to draw certain inferences -- and I will use the same example I used before. A witness might say that he or she had seen someone come into the courthouse lobby wearing a raincoat and carrying an umbrella, both of which were dripping wet. If you believed that witness, you might infer that it was raining outside, even though the evidence was indirect or circumstantial evidence.
Exhibits may provide direct or circumstantial evidence.
In reaching a verdict, you can take both kinds of evidence into account. Your job is to decide what conclusions you will reach, based upon the evidence as a whole, both direct and circumstantial.
However, you cannot reach a verdict of guilty based on circumstantial evidence alone, unless you are satisfied beyond a reasonable doubt that Mr. Fox's guilt is the only rational conclusion to be drawn from the whole of the evidence.
When you are considering circumstantial evidence, keep in mind that circumstantial evidence can lead you to the wrong conclusion. So in the umbrella example, suppose you also saw film crews just outside the courthouse. An equally reasonable inference in those circumstances might be that the person you saw with a wet umbrella and raincoat was an actor who had just been filmed in a movie shoot, where artificial means were used to make the weather seem rainy.
As I said, you may rely on circumstantial evidence, as well as direct evidence, but you must not base a verdict of guilt on circumstantial evidence alone, unless you are satisfied beyond a reasonable doubt that guilt is the only reasonable inference from the whole of the evidence.
Also, your verdict must be based on the evidence, whether direct, circumstantial, or both. It must not be based on speculation.
I will turn now to some of the more specific rules of evidence that apply in this case.
During the testimony of Constable Jason Potts, an audio recording was played of an interview he conducted with Mr. Fox on June 16, 2016. You were given a transcript of the recording.
As I said at the time, the transcript was just an aid to help you follow the recording as it was played. Although we have given the exhibit -- the transcript -- an exhibit number, and you will have the transcript with you in the jury room, the transcript is not evidence. Only the audio recording itself is evidence.
The audio recording will be available to you in the jury room, and you can listen to it if you need to. It is up to you to decide whether and how often you want to listen to it or to any part of it again. You may listen to it as many times as you wish to help you determine who is speaking and what he is saying.
You may take the transcript with you to the jury room to help you determine what is actually on the audio recording. But remember that if you find any differences between the audio recording and the transcript, you must rely on what you hear on the audio recording, rather than on what is in the transcript.
I will now explain what use you may make of remarks or statements made by Mr. Fox in the interview with Constable Fox -- with Constable Potts.
If you find that Mr. Fox made a particular remark or statement, you can use that statement as evidence. The hearsay rule that I told you about during the trial, and I will remind you about shortly, does not apply to out-of-court statements made by an accused person.
But unless you decide that Mr. Fox made a particular remark or statement and meant it in the way the Crown suggests, you must not use the remark or statement against Mr. Fox in deciding this case.
Some or all of the interview with Constable Potts may be evidence that helps Mr. Fox in his defence. You must consider those statements or remarks that may help Mr. Fox, along with all the other evidence. Take into account statements or remarks that might help Mr. Fox, even if you are not sure whether he said them.
In listening to the audio recording, be careful to distinguish between what Mr. Fox said and what Constable Potts said. What Constable Potts said may help you figure out what Mr. Fox said and what his words mean. In other words, what Constable Potts said may provide a context for understanding what Mr. Fox says. But only Mr. Fox's words, as understood in this context, are evidence of what Mr. Fox did or intended to do. Mr. Fox can be held responsible only for what he actually said, not for what Constable Potts said.
In deciding what Mr. Fox actually said, and what he meant when he said it, use your common sense. Take into account his condition and all the circumstances at the time.
I will talk now about hearsay statements ostensibly made by people who are not witnesses.
You will remember that during the trial I told you that certain evidence Ms. Capuano gave was hearsay evidence. It was evidence about a job offer from Pima Community College being withdrawn. I told you during the trial that Ms. Capuano's evidence about why the offer was withdrawn was hearsay evidence, because nobody from Pima was called to testify and be cross-examined about the reason.
As I told you during the trial, you must not use Ms. Capuano's hearsay evidence about why the offer was withdrawn as evidence of why, in fact, the offer she described was withdrawn. You can use her hearsay evidence only as evidence of what she believed the reason to be.
The same instruction applies to hearsay evidence Ms. Capuano gave about losing her job at Apollo. Ms. Capuano testified that it was because the website made her a security risk. However, that was hearsay evidence because nobody from Apollo testified in the trial to say that this was the reason. You can use Ms. Capuano's evidence on that point only as evidence of what she believed the reason to be, and not as evidence of what the actual reason was.
There was also hearsay evidence given by Constable Jean-Philippe Dupont, who testified that he monitored an interview between RCMP Constable Huggins and Mr. Fox on July 20, 2015. Constable Dupont testified that he heard Constable Huggins tell Mr. Fox certain things about how Ms. Capuano was feeling as a result of Mr. Fox's actions connected with his emails and the website. As I told you at the time, this evidence was tendered and you can use it only as evidence that Mr. Fox was told these things on July 20, 2015. You must not use Constable Dupont's evidence as evidence that Ms. Capuano actually felt the way Constable Huggins described.
I will speak now about previous inconsistent statements of a witness and how they relate to credibility.
If you find that a witness said one thing in the witness box and something different about the same subject on an earlier occasion, this may be a factor in assessing the witness's credibility.
For example, in her direct evidence, or evidence in chief, in the trial, Ms. Capuano testified that after the separation from Mr. Fox, who was then Mr. Riess, in 2001, custody hearings led to a joint custody order under which {G*****} spent alternating time with Ms. Capuano in Florida and Mr. Fox in California. She testified that after a while, she did not have the funds to fly {G*****} back and forth, and Mr. Fox ended up with custody by default. She testified that Mr. Fox stopped communicating with her, and she was unable to locate him and {G*****}, despite various efforts and contact with lawyers, police, missing persons authorities, and child protection services. She testified that she had no contact with {G*****} between 2001 and 2011, except that she spoke with him on the telephone twice, when Mr. Fox arranged that telephone contact through Ms. Capuano's mother.
In cross-examination, portions of a letter were read to Ms. Capuano that she agreed she wrote to Mr. Fox in 2011 after he wrote to re-initiate contact. It was suggested to her in cross- examination that the letter tells a different story about the 10-year separation. For example, in the letter Ms. Capuano said that it tore her apart to be away from {G*****}, and I am quoting, "so I let you have him." She also said, "I'm completely prepared for him to have a lot of questions and to not think the world of me," and, "he is completely justified in whatever feelings or opinions he has toward me." She said, "I could search him out, that is true," and, "I will hope for a phone call one day, but I'm not going to initiate it"
Asked about the apparent inconsistencies between the letter and her testimony, Ms. Capuano said that, in the letter, she was referring to a stage when there was a joint custody arrangement, and then to another stage, when she lacked the funds for flights for visits with {G*****}. She also testified that there is a difference between locating {G*****} and making contact with him, which requires more delicate handling.
In another example, in Ms. Capuano's examination in chief, she testified that the emails and the website affected her profoundly in various ways, and she cried at times as she gave her evidence. In cross-examination, she was asked about an interview with RCMP Corporal Wilcott, and she agreed that a number of times she laughed during that interview when she spoke about the emails, and that she described the emails as ridiculous. Ms. Capuano agreed that she also laughed in the interview when she spoke about the custody proceedings in court in which she was able to represent herself and win, and that she laughed when she spoke about her co-workers telling her that her LinkedIn profile said that she was a stripper.
You heard some short excerpts from the recording of the interview. You also heard Ms. Capuano's explanations in her cross-examination about why she laughed in the earlier interview.
It is for you to determine what effect any differences will have on your overall assessment of the witness's credibility. They may have a huge effect or no effect, or somewhere in between. Not every difference is important. Consider the extent and nature of any difference. Was it on a central point or something peripheral? Consider any explanation the witness gave. Was the explanation satisfactory?
Generally, the earlier statement may be used only in assessing the witness's credibility. However, there is an exception when the witness, while testifying at the trial, accepts all or part of the earlier statement as true. In that situation, the earlier statement may also be considered as evidence of what happened, but only to the extent the witness accepted the statement as true. It is for you to decide what weight, if any, to give to the part of the earlier statement that the witness accepts as true.
I will talk now about the admissions.
The Crown and the defence have agreed to certain admissions and they are these:
First, the -- that the material in Exhibit 1, which is the Crown book of materials, the blue book, is an accurate representation of some of the material found on the Desiree Capuano website as of May 26, 2016. You may remember that that admission was made on the first day of the trial. It was not reduced to writing and I am reminding you of it now.
Second, that from July 21, 2015, until October 27, 2015, Patrick Fox was bound by an undertaking forbidding him from having direct or indirect contact with Desiree Capuano, except for communications regarding travel plans for {G*****} Riess -- and that also was not reduced to writing.
And third -- and these admissions were reduced to writing, they are in Exhibit 12 -- and they are admissions concerning firearms in a document called "Admissions of Fact". And they say, essentially, and I am simply summarizing, that the four firearms relating to the charge in Count 2 are -- fall within the definition of "restricted firearms" in the Criminal Code.
You must accept all of those facts as proven.
I will say something now about the fact that Mr. Fox represented himself during large parts of the trial, conducting his own defence, except that Mr. Lagemaat conducted the defence cross- examination of Ms. Capuano and also made the defence closing submissions to you concerning Count 1.
Do not try to guess why Mr. Fox did not have a lawyer for the other portions of the trial.
The fact that Mr. Fox was not represented by a lawyer for those portions has nothing to do with your decision in this case. It is not evidence for you to consider in reaching your verdict. Take nothing from it, nothing at all, one way or another.
I will speak now about the fact that Ms. Capuano testified behind a screen and with a support person.
As I told you at the time, procedures of this type are used simply to help a witness give evidence by providing a comfortable situation for them in the courtroom.
The fact that we used the procedures has nothing to do with the guilt or innocence of Mr. Fox. The procedures are not evidence of anything. The fact that they were used must not affect your assessment of the evidence.
Now, next, I will be moving on to tell you about the offences that you are to consider, and the elements of those offences that the Crown must prove beyond a reasonable doubt.
This is a logical time to break to have the morning recess. If we find that the remainder of the instructions is more than you want to take in without a further break, we can consider having a short break a little later on. But I propose that we take the ordinary morning break now and then resume after the break.
I am going to ask you to leave the written copies of these instructions in the courtroom. Nobody will have access to them, and they will be there untouched, unviewed, when you come back after the break. Thank you for your attention thus far.
(JURY OUT)
THE COURT: Madam Registrar, could I see the original indictment, please? I want to make sure that both amendments were actually made on the original. Thank you. Yes, they have been made. I should initial that one.
Anything thus far, counsel? Mr. Fox?
We will take the morning break, thank you.
THE CLERK: Order in court. This court stands adjourned for the morning recess.
(PROCEEDINGS ADJOURNED FOR MORNING RECESS)
(PROCEEDINGS RECONVENED)
THE SHERIFF: The jury, My Lady.
(JURY IN)
CHARGE TO THE JURY, CONTINUING:
THE COURT: Members of the jury, continuing on, I am at page 18 now, and beginning to address Count 1.
In that count, Mr. Fox is charged with criminal harassment. The charge was amended in a minor way after you were excused, I believe it was last Monday, to delete a reference to Surrey, British Columbia, which was included in error. So the charge as amended reads as follows:
Patrick Henry FOX stands charged that . . . between January 11, 2015 and May 27, 2016, inclusive, at or near Burnaby, in the Province of British Columbia, did without lawful authority and knowing that another person was harassed or being reckless as to whether another person was harassed, engage in conduct that caused that other person, Desiree Capuano, to reasonably fear for her safety or the safety of anyone known to her . . .
You must find Mr. Fox guilty -- back up and I am going to correct that. You must not find Mr. Fox guilty of criminal harassment unless the Crown has proven beyond a reasonable doubt that Mr. Fox is the person who committed the offence during the time period and in the place described in the indictment. Specifically, the Crown must prove each of the following essential elements beyond a reasonable doubt:
First, that Mr. Fox (a) communicated repeatedly, whether directly or indirectly, with Ms. Capuano or anyone known to her, or (b) engaged in threatening conduct directed at her or her family.
Second, that one or both of those forms of conduct harassed Ms. Capuano.
Third, that Mr. Fox was aware that the conduct harassed Ms. Capuano.
Fourth, that the conduct caused Ms. Capuano to fear for her own safety or the safety of members of her family.
And fifth, that Ms. Capuano's fear was reasonable in the circumstances.
Unless you are satisfied beyond a reasonable doubt that the Crown has proven all these essential elements, you must find Mr. Fox not guilty of criminal harassment.
If you are satisfied beyond a reasonable doubt of all these essential elements, you must find Mr. Fox guilty of criminal harassment.
To determine whether the Crown has proven these essential elements, consider the following questions -- and there are going to be five of them corresponding with the five elements that I outlined.
First, did Mr. Fox (a) communicate repeatedly, whether directly or indirectly, with Ms. Capuano or anyone known to her, or (b) engage in threatening conduct directed at Ms. Capuano or her children?
This first question relates to two types of conduct, which I will discuss separately. The Crown must prove beyond a reasonable doubt one or both of these types of conduct, that is, (a) or (b).
So, I will first address (a). Did Mr. Fox communicate repeatedly, whether directly or indirectly, with Ms. Capuano or anyone known to her?
To communicate repeatedly with another person means to communicate with him or her more than once. It might be in the same words or by the same means each time, but it does not have to be.
The communication may be direct or it may be indirect. The communication may be with Ms. Capuano or with anyone she knows.
A direct communication with Ms. Capuano could include an email sent intentionally to her, if she received and read it.
An indirect communication with Ms. Capuano could include posting material on a website or sending an email to other people, so long as the person who posted the material or sent the email intended the person who read or received it to bring it to Ms. Capuano's attention, and they did.
Consider the evidence of emails. Consider also the evidence of material on the website, but keep in mind that that material is not direct or indirect communication by Mr. Fox with Ms. Capuano unless he intended the material to come to her attention and it did. Consider all of the evidence about communications from Mr. Fox to Ms. Capuano or anyone known to her that came to her attention.
The other form of conduct: (b) did Mr. Fox engage in threatening conduct directed at Ms. Capuano or her family?
Threatening conduct can include words as well as physical acts and non-verbal conduct. A single incident may constitute threatening conduct.
To be threatening conduct in this case, Mr. Fox's conduct must have been directed at Ms. Capuano or her family with an intention to intimidate her or to instil a sense of fear in her. The fear can relate to her own or her family's physical safety, or to her own or their psychological or emotional security or well-being.
Also, conduct is threatening only if a reasonable person, in the same circumstances as Ms. Capuano, would find it threatening.
Consider the relationship between Mr. Fox and Ms. Capuano, and the conduct -- the context in which the conduct occurred. Decide whether Mr. Fox intended the conduct to intimidate or instil a sense of fear in Ms. Capuano. If you find that he did, decide also whether the conduct would cause a reasonable person to be intimidated in Ms. Capuano's circumstances.
When you are deciding whether a reasonable person in the same circumstances would be intimidated, you must take into account only what Ms. Capuano knew. You must not take into account the evidence relating to the charge in Count 2, where the Crown alleges that Mr. Fox sent his firearms from Burnaby to a residence in California, because Ms. Capuano did not know about these events.
The conduct that the Crown says was threatening conduct directed at Ms. Capuano includes various statements in emails to Ms. Capuano telling her of a goal to make her life miserable, to ruin her reputation, and to bring about various other negative results, referring her to the website and to material on it, referring to hiring a person to develop a relationship with Ms. Capuano who would take intimate photographs of her to be added to the website, referring to a billboard campaign, and an email saying Mr. Fox had no qualms about shooting Ms. Capuano, except for the risk of being caught and for the fact that such an act would be illegal and immoral.
The Crown says that threatening conduct directed at Ms. Capuano's family includes an email about potentially taking steps to cause Mr. Pendleton's security clearance to be reviewed, and posting pictures of Ms. Capuano's son {SC*****}.
Consider all of the evidence and decide whether Mr. Fox engaged in threatening conduct that he directed at Ms. Capuano or her family that would cause a reasonable person to be intimidated.
Unless you are satisfied beyond a reasonable doubt that Mr. Fox 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, you must find Mr. Fox not guilty of criminal harassment. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that Mr. Fox 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, you go on to Question 2.
You do not have to all -- I am going to back up and correct that. You do not have to all agree on whether (a) Mr. Fox communicated repeatedly with Ms. Capuano or anyone known to her, or on whether (b) Mr. Fox engaged in threatening conduct directed at her or her family. It is sufficient if you all agree that the Crown has proven beyond a reasonable doubt that Mr. Fox engaged in at least one of these types of conduct, that is (a) or (b).
If you do, you go on to the next question.
And that is, second, did Mr. Fox's conduct harass Ms. Capuano?
And from now on, when I say, "Mr. Fox's conduct," I mean his repeated communication with Ms. Capuano or anyone known to her, or his threatening conduct directed at her or her family -- in other words, the conduct that I have just described in the first element of the offence. So now addressing the second element. Did Mr. Fox's conduct harass Ms. Capuano?
To prove that Mr. Fox's conduct harassed Ms. Capuano, the Crown must prove beyond a reasonable doubt that his conduct distressed, tormented, or troubled her. It is not enough if his conduct merely annoyed her, or if it made her angry without also making her distressed, tormented, or troubled.
Consider Ms. Capuano's evidence about how Mr. Fox's communications affected her and what she did to make them stop. Consider her cross-examination when she was asked about laughing a number of times when she reported the events during a police interview. Consider also the portions of the recording of that interview that were played back to her. Consider her explanations. Assess her evidence and all the other evidence in the way I described earlier.
Unless you are satisfied beyond a reasonable doubt that Mr. Fox's conduct harassed Ms. Capuano, you must find Mr. Fox not guilty of criminal harassment. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that Mr. Fox's conduct harassed Ms. Capuano, you must go on to the next question.
And that is the third question, corresponding to the third element: Was Mr. Fox aware that his conduct harassed Ms. Capuano?
The Crown must prove beyond a reasonable doubt that Mr. Fox was aware that his conduct harassed Ms. Capuano. Remember, I am still using "Mr. Fox's conduct" to mean the conduct involved in the first element of the offence. And I notice I have written "office" in my written notes, and obviously that should read "offence".
To prove these things, the Crown must prove one of the following:
First, that Mr. Fox actually knew that his conduct harassed her.
Second, that Mr. Fox knew there was a risk that his conduct harassed Ms. Capuano, and that Mr. Fox proceeded in the face of that risk.
Third, that Mr. Fox was aware of indications that his conduct harassed Ms. Capuano, but deliberately chose to ignore the indications, because he did not want to know the truth.
Any one of these is sufficient to establish that Mr. Fox was aware that his conduct harassed Ms. Capuano. You do not have to all agree on the same one. If each of you is satisfied about any one of them beyond a reasonable doubt, the Crown will have proven the element of awareness and you go on to the next question.
You may infer, as a matter of common sense, that a person usually knows the predictable consequences of his or her actions, and means to bring them about. However, you are not required to draw that inference about Mr. Fox. Indeed, you must not do so if, on the whole of the evidence, you have a reasonable doubt about whether Mr. Fox was aware that his conduct harassed Ms. Capuano. It is for you to decide.
Consider all the evidence, including the content of the emails themselves and the material on the website. In deciding this third question, you can consider material that Mr. Fox posted on the website, even if that material did not come to Ms. Capuano's attention. This third element of the offence focuses on Mr. Fox's state of mind, namely whether he was aware that Ms. Capuano was harassed, and not on Ms. Capuano's state of mind.
Consider also the evidence of Constable Jean- Philippe Dupont, who testified that in the interview of July 20, 2015, Constable Huggins told Mr. Fox that Ms. Capuano did not want any of the contact from the emails and the website, and that she was fearful of Mr. Fox crossing the border and shooting her. Consider Mr. Fox's statements, in the interview with Constable Potts on July 16, 2016, that Ms. Capuano cannot possibly have taken his email about having no qualms about shooting her as a real threat, because the email went on to say that he would never shoot her. Consider his statements in that interview that, in a radio interview, Ms. Capuano showed no fear at all in her voice and instead was laughing and joking. You may consider that evidence, if you accept it, as showing the state of Mr. Fox's awareness or lack of awareness at that time. Consider the evidence, elicited in cross-examination, that sometimes Ms. Capuano responded multiple times to Mr. Fox's emails, sometimes in what could be read as a light-hearted manner.
Unless you are satisfied beyond a reasonable doubt that Mr. Fox was aware that his conduct harassed Ms. Capuano, you must find Mr. Fox not guilty of criminal harassment. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that Mr. Fox was aware that his conduct harassed Ms. Capuano, you go on to the next question.
And this next fourth question relates to the fourth element of the offence, and it asks: did Mr. Fox's conduct cause Ms. Capuano to fear for her own or her family members' safety?
The Crown must prove beyond a reasonable doubt that Mr. Fox's conduct caused Ms. Capuano to fear for her own safety or the safety of members of her family. And when I say, "Mr. Fox's conduct", I am still referring to the conduct that is required for the first element of the offence.
Fear can reflect a state of uncertainty about what a person is capable of, or what his or her intentions may be, or what consequences may follow.
The fear can be for physical safety, or it can be for psychological or emotional security or well-being. The feared result cannot be a trivial one. However, it need not be as serious as ill health or a major life disruption.
The Crown says that Mr. Fox's conduct caused Ms. Capuano to fear for her physical safety and for her psychological or emotional safety, as well as for the psychological or emotional safety of Mr. Pendleton and her son {SC*****}. In addition to the email about having no qualms about shooting Ms. Capuano, if the risk was removed and to do so were not illegal and immoral, the Crown refers to Mr. Fox's stated goal of ruining Ms. Capuano's life by making her unemployable and penniless, turning {G*****} against her, and isolating her from friends or co-workers. As to Mr. Pendleton's psychological security, the Crown refers to the email about his security clearance and steps Mr. Fox might take to cause it to be reviewed. As to {SC*****}, the Crown relies mainly on the pictures posted on the website, where the home address was also given, and Ms. Capuano's evidence that she was afraid for {SC*****} as a result.
Mr. Fox relies on the evidence I have already mentioned, that although Ms. Capuano cried when she gave her evidence in this trial about the effects of the emails and the website, she laughed a number of times when she spoke about them in a media interview and in the interview with Constable Wilcott. Mr. Fox relies also on the evidence, elicited in cross-examination of Ms. Capuano, that in some emails she insulted Mr. Fox in various ways, and often continued an email conversation that she could easily have ignored. He relies on statements Ms. Capuano made in some of those and other emails that showed no fear at all, such as, "I enjoy our banter as much as the next person" or "this has been fun really".
In deciding whether this essential element has been proven, consider all of the evidence, including the emails and any website material that you find came to Ms. Capuano's attention. Consider her evidence about the effects on her and decide how much or little of it you accept.
Unless you are satisfied beyond a reasonable doubt that Mr. Fox's conduct caused Ms. Capuano to fear for her own safety or the safety of her family, you must find Mr. Fox not guilty of criminal harassment. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that Mr. Fox's conduct caused Ms. Capuano to fear for her own safety or the safety of her family, you must go on to the next question.
That is the fifth question, corresponding with the fifth element: was Ms. Capuano's fear reasonable in all the circumstances?
You must consider whether Ms. Capuano's fear for her own safety or the safety of her children because of Mr. -- I should say the safety of her family members -- because of Mr. Fox's conduct was reasonable in all the circumstances. Ask yourselves whether a reasonable person in the same circumstances as Ms. Capuano would fear for her own or her family members' safety as a result of what Mr. Fox did.
When you are deciding whether a reasonable person in Ms. Capuano's circumstances would fear for her own or her family's safety, as a result of what Mr. Fox did, you must take into account only what Ms. Capuano knew. You must not take into account the evidence relating to Count 2 about Mr. Fox sending boxes by way of The Packaging Depot, and about his firearms being found in a box in a residence in Carson, California, because Ms. Capuano did not know about those events. Nor would a reasonable person in Ms. Capuano's position know about those events.
Unless you are satisfied beyond a reasonable doubt that Ms. Capuano's fear for her own safety of the safety of members of her family was reasonable in all the circumstances, you must find Mr. Fox not guilty of criminal harassment.
If you are satisfied beyond a reasonable doubt that Ms. Capuano's fear for her own safety or the safety of members of her family was reasonable in all the circumstances, you must find Mr. Fox guilty of criminal harassment.
I will now go on to discuss the elements of the offence charged in Count 2.
In that count, Mr. Fox is charged with the offence of possessing a firearm in a place other than where he was authorized to possess.
You will remember that a small change was made to one of the dates specified in the charge. The charge as amended reads as follows:
Mr. Fox stands charged that between May 17, 2016 and June 3, 2016, inclusive, at or near Burnaby, in the Province of British Columbia, being the holder of an authorization or a licence under which he may possess a prohibited firearm, restricted firearm or non-restricted firearm, prohibited weapon, prohibited device, or prohibited ammunition, did possess firearms, at a place indicated on the authorization or licence as being a place where he may not possess it, or at a place other than that indicated on the authorization or licence as being a place where he may possess it, or at a place other than that where it may be possessed under the Firearms Act . . .
The allegation in this charge is that four firearms which Mr. Fox was licensed to own were packed inside a computer in one of the boxes that went to Ms. {M*****}'s residence in Carson, California, and that Mr. Fox was in possession of those firearms, contrary to his licence or authorization, while the box containing the firearms went from his residence to The Packaging Depot in Burnaby, B.C., and while the box waited there at The Packaging Depot to be picked up by UPS.
I tell you that, as a matter of law, Mr. Fox was not authorized to be in possession of his firearms between his residence and The Packaging Depot, or at the Packaging Depot before pick-up by UPS.
You must find Mr. Fox not guilty of possessing a firearm other than where authorized to do so, unless the Crown has proven beyond a reasonable doubt that Mr. Fox committed the offence on the dates or during the time period, and in the place described in the indictment. Specifically, the Crown must prove each of the following essential elements of the offence beyond a reasonable doubt.
First, that Mr. Fox was the holder of an authorization or licence allowing him to possess firearms at a place indicated on the authorization or licence.
Second, that the items that ATS Agent Frank Spizuoco -- I am going to say, have I got that correctly, Mr. Myhre?
MR. MYHRE: I believe so, My Lady.
THE COURT: -- found in one of the boxes at the residence of Liz in Carson, California, were firearms within the meaning of the Criminal Code.
Third, that the firearms had previously gone from Mr. Fox's residence to The Packaging Depot in Burnaby, and then to UPS for delivery to Carson, California.
And fourth, that Mr. Fox was in possession of those firearms while they went from his residence to The Packaging Depot and until they were released to UPS.
Unless you are satisfied beyond a reasonable doubt that the Crown has proven all of these essential elements, you must find Mr. Fox not guilty of possessing a firearm other than where authorized to do so.
If you are satisfied beyond a reasonable doubt of all these essential elements, you must find Mr. Fox guilty of possessing a firearm at a place other than where authorized to do so.
To determine whether the Crown has proven these essential elements, I will take you through four questions corresponding with the four elements that, again, I would ask that you address in the order in which I am going to take you through them.
First, did Mr. Fox hold an authorization or licence allowing him to possess firearms at a place indicated on the authorization or the licence?
On this question, you have the affidavit of a firearms officer, which is Exhibit 10, which explains in paragraph 5 that Mr. Fox holds a valid PAL, or Possession and Acquisition Licence, that allows him to possess and acquire restricted, as well as non-restricted, firearms, and that he also holds a valid ATT, Authorization to Transport, that allows him to transport his restricted firearms to certain places under certain conditions. You also have Ms. Capuano's evidence that Mr. Fox attached a copy of a PAL, and that is Exhibit 2, to an email that he sent her -- and if you look at that, you will see that the copy shows the same PAL number and other details as are indicated in the affidavit of a firearms officer that is Exhibit 10.
You will probably be satisfied beyond a reasonable doubt that Mr. Fox held an authorization or licence allowing him to possess firearms at a place indicated on the authorization or licence.
If you are, you then go on to the next question.
Second, were the items that Agent Spizuoco found firearms?
Under the Criminal Code, a firearm is a gun, a weapon with a barrel that can fire a shot, a bullet, or other projectile, and can cause death or serious bodily injury to another person.
You have the affidavit of Neena Sharan, that is Exhibit 11, saying that Mr. Fox had four valid firearms registration certificates for four firearms listed and described in Exhibit A to that affidavit. You also have the photographs of the items Agent Spizuoco found showing serial numbers that, if you look at them, you will see are the same as the serial numbers of the firearms in Mr. Fox's registration certificates.
You will probably be satisfied beyond a reasonable doubt that the items Agent Spizuoco found in one of the boxes at the residence of Ms. {M*****} in Carson, California, were firearms within the Criminal Code definition.
If you are, you then go on to the next question.
Third, did the firearms go from Mr. Fox's residence to The Packaging Depot, in Burnaby, and then to UPS for delivery to Carson, California?
As I said earlier, the charge in Count 2 alleges that Mr. Fox was in possession of the firearms during the time that they were between his residence and The Packaging Depot, and while the box they were in was waiting to be picked up by UPS. The Crown must therefore prove beyond a reasonable doubt that the firearms Agent Spizuoco found in Carson, California, began their travels to Carson, California, by going from Mr. Fox's residence to The Packaging Depot, and then continuing on with UPS, and that they did not get to Carson, California, by some other route.
No witness gave direct evidence of seeing the firearms outside Mr. Fox's residence or on the way to or at the Packaging Depot, whether inside the boxes or not.
The Crown relies instead on circumstantial evidence, and asks you to infer that the firearms were in one of the boxes Mr. Fox sent through the Packaging Depot.
Consider the evidence of Manvir Mangat, owner of The Packaging Depot, about boxes Mr. Fox shipped on several occasions. Consider Mr. Mangat's evidence about how the boxes were packaged and labelled and shipped. Consider also Agent Spizuoco's evidence about how he found the firearms, packed inside a computer, in one of about 25 boxes at the Carson, California, residence. Consider Agent Spizuoco's evidence, elicited on cross-examination, that he had no knowledge about how many people or who may have come into contact with that box before he opened it, or about whether the box had been opened before, and that he could not comment on whether or not Mr. Fox was or had been present in California at or around the time when the firearms were found. Consider what Mr. Fox said, in his interview with Constable Potts, about shipping his goods.
Unless you are satisfied beyond a reasonable doubt that the firearms went from Mr. Fox's residence to The Packaging Depot, and were then released to UPS for delivery to Carson, California, you must find Mr. Fox not guilty of this offence.
If you are satisfied beyond a reasonable doubt that the firearms went from Mr. Fox's residence to The Packaging Depot, and were then released to UPS for delivery to Carson, California, you must go on to the next question.
Fourth question, was Mr. Fox in possession of the firearms en route to The Packaging Depot, and at The Packaging Depot until UPS took them?
A person may have possession of an item by being in actual physical control of it, for example, holding it in his or her hand or keeping it in his or her pocket.
Also, a person may have possession of an item that is elsewhere or is in the actual possession or custody of somebody else, provided that the person knows the item is in that other location and has some element of control over it. The person will not be in possession of an item in another place if the item is there through mistake or accident.
To decide if Mr. Fox was in possession of firearms while they went from his residence to The Packaging Depot and while they awaited pickup there by UPS, consider all of the evidence about the firearms. Consider the evidence I mentioned when discussing the third element.
Unless you are satisfied beyond a reasonable doubt that Mr. Fox was in possession of firearms while they went from his residence to The Packaging Depot and while they awaited pickup there by UPS, you must find him not guilty of this offence.
If you are satisfied beyond a reasonable doubt that Mr. Fox was in possession of firearms while they went from his residence to The Packaging Depot and while they awaited pickup there by UPS, you must find Mr. Fox guilty of possessing a firearm other than where authorized to do so.
Available verdicts. For each of Counts 1 and 2, your verdict will be either guilty or not guilty.
Your verdict for a charge will be guilty if the Crown has proven, beyond a reasonable doubt, each of the elements of the offence charged, as I have outlined them earlier.
Your verdict will be not guilty if the Crown has failed to prove beyond a reasonable doubt one or more of the elements of the offence charged, as I outlined those elements earlier.
There are two remaining sections of my instructions. They will not be lengthy, but I suggest that we take a five-minute break, just to stretch legs, take some deep breaths, and then finish up. I think we -- if we do that, we should be complete by 20 or quarter to one, and if you can wait that long for lunch, then I suggest that is the better way to go. So we will just take five minutes.
(JURY OUT)
THE COURT: Anything thus far?
MR. MYHRE: No, My Lady.
THE COURT: Thank you. Just five minutes, so please don't go too far.
THE CLERK: Order in court. This court stands down.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
THE SHERIFF: The jury, My Lady.
(JURY IN)
CHARGE TO THE JURY, CONTINUING:
THE COURT: I am at page 32.
Earlier in these instructions, I have outlined the Crown's position and the defence position as they relate to some of the issues that you will be deciding, but I will now give you a more general overview of each party's position.
The Crown's position.
The Crown's position is that the evidence establishes beyond a reasonable doubt that Mr. Fox committed both of the offences charged.
For Count 1, the Crown says that the evidence clearly establishes beyond a reasonable doubt each of the elements of criminal harassment for the period of the charge, January 11, 2015, to May 27, 2016.
The Crown says that Mr. Fox deliberately engaged in threatening conduct of various kinds that intimidated Ms. Capuano in various ways, as well as repeated communication, mainly by email but often expressly referring in emails to the website, that taunted and denigrated Ms. Capuano. The Crown says that Mr. Fox engaged in these forms of conduct deliberately, meaning to cause Ms. Capuano as much misery as possible, and knowing that his conduct was having a harassing effect on her. The Crown relies on Mr. Fox's own emails and blogs to show this goal, and to show that he knew he was succeeding in reaching it, as well as on -- and the Crown relies also on some of the things Mr. Fox said to Constable Potts in the audio-recorded interview.
The Crown submits that, unsurprisingly, Mr. Fox's repeated communication and his threatening conduct caused Ms. Capuano to be harassed or tormented, and to fear for her own safety, both physical and psychological or emotional, and for the safety of her son {SC*****} and her partner, Mr. Pendleton. The Crown relies on Ms. Capuano's own evidence that she was fearful of various things, and also asks you to infer this from the evidence that she took a number of steps to try to stop Mr. Fox's campaign of harassment.
The Crown says Ms. Capuano's fear for her own safety, whether physical or psychological or emotional, and for the safety of members of her family, was a fear that a reasonable person would also have had in her circumstances. The Crown reminded you that the circumstances you can consider, for the purpose of determining whether her fear was a reasonable one, include the communications and events that predated the period of the charge, but they do not include the events relating to the firearms charge, Count 2, because Ms. Capuano did not know about those events relating to Count 2.
For Count 2, the Crown says that the only reasonable inference from the evidence as a whole is that Mr. Fox's firearms were in one of the boxes that went from his residence to The Packaging Depot, and then on to Ms. {M*****}'s residence in California. The Crown says that any suggestion that the firearms could have reached Ms. {M*****}'s residence in some other way is speculation, with no evidence to support it.
The Crown relies also on statements Mr. Fox made to Constable Potts when, and this is in the portion of the interview that corresponds in the transcript to paragraph 1836, statements about shipping or transporting his things to Los Angeles. The Crown submits that although Mr. Fox did not expressly mention firearms in that statement, the full context of the statement indicates that it was his firearms he was speaking about.
The Crown asks you to find Mr. Fox guilty of both charges.
The defence position.
The defence position is that the evidence does not establish either of the charges beyond a reasonable doubt.
For Count 1, the defence says that what the Crown says are threats to do such things as to make Ms. Capuano lose her job and be unable to find another, or to turn {G*****} and her friends against her, may all be conduct that would cause Ms. Capuano inconvenience and annoyance, but they were not threats designed to intimidate or -- designed to intimidate her or instill a sense of fear. The defence submits that Ms. Capuano's response, by fighting back with insults and taunts, and by failing at that time to contact the police, show that she was not, in fact, harassed or put in fear for her safety.
As to Ms. Capuano's evidence that she was afraid that Mr. Fox would shoot her, the defence notes that the email that she said led to this fear took care to make absolutely clear -- and, ah, those are words in the email -- that Mr. Fox would never deliberately cause her physical harm. The defence submits that in this email, Mr. Fox was not threatening Ms. Capuano, he was explaining to her his rules of life, one of them being not to harm other people. The defence submits that this email was not a threat, and Ms. Capuano cannot actually or reasonably have taken it as such.
The defence submits that Mr. Fox repeated these life principles in the interview with Constable Potts: both his religion and the law would prevent him from physically harming Ms. Capuano. The interview was after the time period of the charge, but you can consider it in deciding what Mr. Fox meant or intended when he sent the much earlier email.
As to the other type of conduct alleged to support Count 1, the defence agrees that Mr. Fox communicated repeatedly with Ms. Capuano. However, the defence says that the communication was necessary and was not unwanted, partly because the two were co-parenting and they needed to communicate frequently for that purpose.
The defence says that none of the other elements of the offence, this is Count 1, are proven beyond a reasonable doubt.
Mr. Fox's conduct did not harass Ms. Capuano or cause her to be fearful for her own or her family members' safety. Rather, Ms. Capuano took some pleasure in the communications, and sometimes enjoyed the exchange of wit with Mr. Fox. Ms. Capuano sometimes replied within minutes, sometimes sending multiple responses. She responded at almost all times of the day and night, and she initiated some of the email chains. The back and forth communication was nasty at times, but the insults and denigrating remarks went in both directions, with each side wanting to have the last word.
For these reasons, the defence submits that Mr. Fox's conduct did not cause Ms. Capuano to actually fear for her safety or the safety of her family, and that a reasonable person, in her circumstances, would not have been in fear.
For Count 2, the defence says that there is no direct evidence at all that Mr. Fox's firearms went from his residence to The Packaging Depot, and then on to Carson, California from there. The defence says that Mr. Fox's statements to Constable Potts refer generally to shipping or sending his belongings to his friend's residence, and not specifically to sending his firearms.
The defence submits that on the whole of the evidence concerning Count 2, the inference that the Crown wishes you to draw from the circumstantial evidence is a reasonable inference, but it is not the only reasonable inference. Another reasonable inference is, for example, that Mr. Fox himself took the firearms, in his computer, to Ms. {M*****}'s home in Carson, California, and used one of the boxes to store them in to keep them out of sight and out of Ms. {M*****}'s way. The defence notes also that Mr. Mangat gave a very different number of boxes that went through The Packaging Depot than the approximately 25 boxes Agent Spizuoco testified he found in Ms. {M*****}'s home. The defence submits that you cannot be sure that the firearms went with other goods or personal effects from Mr. Fox's home through The Packaging Depot.
The defence says that because the evidence supports other reasonable inferences, the Crown has not proven Count 2 beyond a reasonable doubt.
The defence asks you to find Mr. Fox not guilty of both charges.
I will say a few things about your deliberations.
Although the testimony of every witness has been audio recorded, we will not have a written transcript of the evidence available for you to review when you go to the jury room to discuss your decision in this case. I think you will find that your collective memory of the evidence is good. However, if there is something that you cannot recall or your recollections differ, counsel and Mr. Fox and I will try to assist you by reviewing our notes, or I may direct that the evidence be played back from the recorder. Normally, we would play back both the direct evidence and the cross-examination on any point.
If, during your discussions, you have any questions, please put them in writing and give them to Mr. Sheriff, who will be outside the door of the jury room. Mr. Sheriff will bring the questions to me, I will discuss them with the lawyers and Mr. Fox. You will be brought back into the courtroom and I will reply to your questions.
I ask that you put the questions in writing so that I understand exactly what it is that you want done or answered. Please be as clear and specific as possible, and then I can be more accurate and helpful in my reply.
In any note that you may send me, please avoid saying anything that discloses any result or decision reached in your deliberations, or what members of the jury are thinking or saying. For example, if you have voted on the point that you are asking about, do not tell me the result of the vote.
A verdict, whether of guilty or not guilty, is the unanimous decision of the jury. To return a verdict in relation to an offence requires that all of you agree on your verdict. While your verdict in relation to an offence must be unanimous, your route to the verdict need not be. You could all be satisfied of Mr. Fox's guilt beyond a reasonable doubt, even though individually you have different views of the evidence. Similarly, you could all have a reasonable doubt about Mr. Fox's guilt but not agree about why. It matters not, provided that your verdict in relation to the offence is unanimous.
You should make every reasonable effort to reach a verdict. Consult with one another. Express your own views. Listen to the views of others. Discuss your differences with an open mind. Try your best to decide this case.
If you cannot reach a unanimous verdict, you should notify Mr. Sheriff in writing. He will bring me your message.
I told you earlier about the verdicts that are open to you. There is a verdict sheet which I would ask that you each be given now.
If you reach a unanimous verdict, your foreperson should record it on your verdict sheet and notify Mr. Sheriff. We will come back into court to receive your verdict. Madam Registrar will at that point ask Mr. Foreperson if you have reached a verdict, and Mr. Foreperson will stand and reply in the affirmative. Mr. Foreperson will then be asked the following question for each of Counts 1 and 2, in turn: "Do you find Patrick Henry Fox guilty or not guilty?" And your answer will be either "guilty" or "not guilty".
Now, in just a moment, I am going to ask you to retire to the jury room. Please do not begin deliberating until Mr. Sheriff advises you that you may do so. I need to consult the lawyers and Mr. Fox to see if I have overlooked anything. If I have, I will call you back in for further instructions.
If there are no further instructions, I will send a message to Mr. Sheriff, who will advise you that you can begin your deliberations, although I rather suspect you are going to be beginning with lunch before.
Thank you very much for your attention all through this morning. I invite you now to retire to the jury room.
(JURY OUT AT 12:46:50 P.M.)
THE COURT: Before I forget, a copy of those final instructions should be marked as the next lettered exhibit, please.
THE CLERK: That will be Exhibit L, My Lady.
EXHIBIT L FOR IDENTIFICATION: Document
titled "Final Instructions to the Jury"
THE COURT: All right. And a copy of the verdict sheet also.
THE CLERK: Exhibit M, My Lady.
THE COURT: Thank you.
EXHIBIT M FOR IDENTIFICATION: Verdict Sheet
THE COURT: Any comments, concerns?
MR. MYHRE: No.
MR. LAGEMAAT: No, My Lady.
THE ACCUSED: No, My Lady.
THE COURT: All right. The jury can be advised that they can begin their deliberations or go to lunch, whichever --
THE SHERIFF: Yes, My Lady.
THE COURT: Thank you. I would ask that counsel other than during mealtimes when the jury is away and not deliberating, I would ask that counsel remain within 10 minutes, at most, of the courtroom in case there are questions. If there are questions I will make copies of the questions, have them for you and consult before giving a response.
Anything else before we stand down?
MR. MYHRE: So do we know the mealtimes?
THE COURT: It's right now.
MR. MYHRE: Until?
THE CLERK: I will usually, if you give me your phone numbers or email address, I usually will email jury is leaving for lunch and then I'll email jury returns from lunch or dinner, is what I usually do.
THE COURT: Experience tells that meals generally take an hour and a half. It's hard to get 12 people in, fed, and out of a restaurant in less than that, so it's usually minimum of an hour and a half.
Any other questions, concerns? All right, thank you. Stand down.
THE CLERK: Just give me one second, I have to do this thing that I've only done once before. Just one second.
(PROCEEDINGS ADJOURNED AT 12:49:42 P.M. TO AWAIT RETURN OF THE JURY)
(PROCEEDINGS RECONVENED AT 4:46:38 P.M.)
(JURY OUT)
THE COURT: Are we recording?
THE CLERK: We are on the record, My Lady.
THE COURT: There is a question from the jury. The original can be marked as an exhibit for identification and there are copies here for counsel and Mr. Fox. So where are we on the letters?
THE CLERK: It will be Exhibit N, My Lady.
THE COURT: Thank you.
EXHIBIT N FOR IDENTIFICATION: Question from the jury number 1
THE COURT: Can these go to counsel and Mr. Fox?
THE CLERK: I have, sorry, one extra.
THE COURT: It's not entirely clear to me what the jury is struggling with. I assume that when they say line 101 they mean paragraph 101 in the written version of the charge. I assume that it's not the structure of the sentence that's troubling them because that same structure is used in relation to the first issue and this is the second issue or the second element that's under discussion. I can only assume, unless any of you have a different idea, that they want more detail about what is meant by harassment in this element but I am not confident that that is their concern.
MR. LAGEMAAT: I would think, My Lady, if that was the question it would have gone earlier on in a paragraph where in the first step was it harassment, back -- back in paragraph 80 where it starts the --
THE ACCUSED: Might I suggest maybe they're uncertain about whether we're speaking of the earlier conduct that was found from the first section or if they're not -- they're not sure about referring to that conduct or just conduct overall.
THE COURT: That's a good point. Thank you, Mr. Fox.
THE ACCUSED: Even though that is, of course, covered in paragraph 98.
THE COURT: Mr. Myhre?
MR. MYHRE: The thought that occurs to me is maybe they're confused about the difference between a finding that she was harassed and a finding of guilt on criminal harassment. It seems quite clear to me from the way this is laid out but maybe if they have a question about what, you know, whether she was harassed and what that means. It was set out pretty clearly in paragraph 99.
So my suggestion would be that we could try to clarify line 101 by saying unless you are satisfied beyond a reasonable doubt that Mr. Fox's conduct, and then maybe we could say as set out in paragraph 98, harassed Ms. Capuano, using the definition of harassment in paragraph 99, you must find, etc.
THE COURT: There's a danger to giving an answer to a jury when we are not entirely sure what question they are asking and the danger is that if we try to cover all the bases and answer all the questions we believe they may be asking, there may be another one that they were actually asking that hasn't been answered but they don't want to push it by coming back with a further question.
I think I need to ask them to be more specific in their question. Perhaps what I should do is say to them that it appears that they may be asking about several different things when -- no, that we were unsure exactly what it is they are asking about. It may be that they are asking in paragraph 101 what is meant by Mr. Fox's conduct or it may be that they are asking what is meant by harassed Ms. Capuano, or it may be that they are asking whether there's a difference between the mention of harassed and the mention of criminal harassment.
Or it may be that their question is something else entirely and so it would be helpful if they could make that question more specific, something along those lines. That's agreed?
THE ACCUSED: I would agree.
MR. MYHRE: I agree.
MR. LAGEMAAT: Yes, My Lady.
THE COURT: Please.
THE SHERIFF: The jury, My Lady.
(JURY IN AT 4:56:29 P.M.)
CHARGE TO THE JURY, CONTINUING:
THE COURT: Members of the jury, I have a question from you and I will read it -- I will read it aloud, so that everyone is aware exactly what -- how it reads: "Could you please clarify line 101 of your summation to us?".
I have discussed this with counsel and Mr. Fox, and I am afraid we need to ask you a question in response. And that is to be a bit more specific in your question -- and I will explain to you why.
We are concerned to answer your -- the question you have in mind, and not some other question, and it appears there are several possibilities of what you may be asking about when you ask for clarification.
One possibility is that you are asking -- and I actually probably should first just read aloud paragraph 101, which is what I understand you to be asking about. And it reads: "Unless you are satisfied beyond a reasonable doubt that Mr. Fox's conduct harassed Ms. Capuano, you must find Mr. Fox not guilty of criminal harassment. Your deliberations would be over".
Just to put that in context, it is dealing with the second element, the second question dealing with Count 1, the charge of criminal harassment.
So one possibility is that you are asking what is meant in that paragraph by "Mr. Fox's conduct". And another possibility is that you are asking for more detail about what is meant by "harassed" -- "harassed Ms. Capuano". And a third possibility is that you are asking whether there is a difference between "harassed Ms. Capuano", in the first part of that sentence, and "criminal harassment" used in the second part when the sentence goes on to say "you must find Mr. Fox not guilty of criminal harassment". Or it may be that your question relates to none of those possibilities.
So I am going to ask you to go back to the jury room and please put your question a bit more specifically, so that I can then answer it for you. And I am sorry to make you engage in this to and fro, but I think that is the better course, please.
(JURY OUT AT 5:00:10 P.M.)
THE COURT: I suspect this won't take long, and so please remain around and when something comes back we will make copies, bring it back into court. Thank you. Stand down.
THE CLERK: Order in court. This court stands down.
(PROCEEDINGS ADJOURNED AT 5:00:49 P.M.)
(PROCEEDINGS RECONVENED AT 5:13:48)
(JURY OUT)
THE COURT: Madam Registrar, we will mark this as Exhibit O, and could I have a copy, please, and give one to counsel, and Mr. Fox. Thank you.
EXHIBIT O FOR IDENTIFICATION: Question from
the jury number 2
THE COURT: Suggestions? Mr. Lagemaat?
MR. LAGEMAAT: I want to say yes, My Lady, because really if they are not, what is the point of considering the next elements?
THE COURT: It ties in with the instruction at paragraph 179. The instruction at paragraph 179 expresses the result which is, I think, where you are coming from, Mr. Lagemaat. The jury's question seems to focus a bit more on process. But the result is certainly as you say. Mr. Myhre?
MR. MYHRE: It does seem to me that it would be permissible for the jury -- I mean this outlines a structured process that they can follow, it makes a lot of sense. But if they were hung up on it, if they wanted to they could go on to consider the other elements. I mean the requirement -- requirement is set out pretty well in paragraph 179. Ultimately they would all have to be unanimous. If they were going to convict Mr. Fox they would have to be unanimous on this element. If they were going to acquit Mr. Fox they could -- their doubts could arise at different places, I suppose.
THE COURT: All right. Mr. Fox, do you have a submission?
THE ACCUSED: I think all I can say on that is that it would seem to me that, for example, element -- the third element necessarily depends upon the finding of the second element and so the jurors who might not find that Ms. Capuano was harassed would necessarily have to conclude the same on the third element. I think -- I think that's going to lead to some complications. Beyond that, though, I would certainly defer to Mr. Lagemaat.
THE COURT: Yes.
MR. LAGEMAAT: I think, upon consider my friend's comment, I would agree that findings of an acquittal might arise at different stages of the analysis on the -- on the different elements and it would be appropriate to consider those elements to see what the other jurors have to say about the other elements, because we can't expect -- if it's going to be an acquittal, for example, we can't expect it all to be on the same element. It could be but it doesn't necessarily have to be.
THE COURT: So how do I instruct the jury on this point? I think I have to distinguish between what is required in order to have a verdict and what is required in the process of the analysis, the staged analysis. I'm not quite sure how to do that in clear, concise terms.
MR. LAGEMAAT: I think what might have been confusing, and this might be a solution, 101 could say unless you are all satisfied.
Could I take a shot at some wording, My Lady?
THE COURT: Yes.
MR. LAGEMAAT: The requirement for unanimous verdict is set out in paragraph 179. The charge sets out a suggested process for you to follow in reading your verdict. Ultimately in order to convict Mr. Fox you would all have to be satisfied beyond a reasonable doubt of all elements of the offence. However, if you all individually have doubts about different elements of the offence you would have to acquit Mr. Fox. Requirement is that you be unanimous in your verdict.
THE COURT: That is repeating the -- that last part is repeating the substance of 179.
MR. LAGEMAAT: Yes, the second to last sentence, similarly you could all have a reasonable doubt about Mr. Fox's guilt but not agree about why, means they could come to a conclusion on different elements.
THE COURT: I think, Mr. Myhre, that is a useful starting point and Mr. Lagemaat, useful additions. I'd like to map it out just a little bit more before delivering it and so we will stand down very briefly.
THE CLERK: Order in court. This court stands down.
(PROCEEDINGS ADJOURNED AT 5:26:06 P.M.)
(PROCEEDINGS RECONVENED AT 5:35:19 P.M.)
(JURY OUT)
THE COURT: This is what I'm proposing. I ask you all to listen carefully and make any suggestions. And I have decided not to refer to paragraph 179 because although it covers the ground, some of the same ground, it also has a focus on evidence, taking different views of the evidence, and we are talking here about in response to a question about elements of the offence. I think better to keep it focused on that.
So here is what I propose. Your verdict, whether of guilty or not guilty, must be unanimous. To convict Mr. Fox of an offence you must all be satisfied beyond a reasonable doubt of all the elements of the offence.
To acquit Mr. Fox of an offence you must all have a reasonable doubt about one or more of the elements of the offence. You do not have to agree about which element or elements the Crown has not proven beyond a reasonable doubt.
The series of questions I gave you, each mirroring an element of the offence, set out a process -- sets out a process for you to follow in your deliberations but at any stage in that process you cannot reach a verdict unless your verdict is unanimous.
I am concerned, Mr. Lagemaat, that your answer to the question - which I've lost - could lead to a hung jury very easily without --
MR. LAGEMAAT: I -- I agree.
THE COURT: All right.
MR. LAGEMAAT: That's why upon further thought I ...
THE COURT: So do you wish me to read again what I said? And if that's the case, I wonder whether I should give it to the jury in writing, or I could read it twice to them.
All right. Your verdict, whether of guilty or not guilty, must be unanimous. To convict Mr. Fox of an offence you must all be satisfied beyond a reasonable doubt of all the elements of the offence. To acquit Mr. Fox of an offence you must all have a reasonable doubt about one or more of the elements of the offence. You do not have to agree about which element or elements the Crown has not proven beyond a reasonable doubt.
The series of questions I gave you, each mirroring an element of the offence, sets out a process for you to follow in your deliberations. At any stage in that process you cannot reach a verdict unless your verdict is unanimous. Or you can only reach a verdict if your verdict is unanimous.
MR. MYHRE: My Lady, my submission is that the first paragraph suffices and the second paragraph maybe reintroduces some of the same confusion I think they might have had about whether we have to rigidly stick to this process or whether it would be useful for us to continue on.
THE COURT: The series of question -- what do you mean by the second paragraph?
MR. MYHRE: Or maybe the last sentence.
THE COURT: At any stage in the process you can only reach a verdict if it's unanimous?
MR. MYHRE: Yes, because that would then seem to imply you have to stick to the process I have set out.
THE COURT: All right, so you suggest deleting that last part.
MR. MYHRE: And I think the sentence before that too.
THE COURT: The series of questions I gave you --
MR. MYHRE: Yes.
THE COURT: -- each mirroring, you think?
MR. MYHRE: I think the first, what comes before that suffices or should suffice.
THE COURT: Mr. Lagemaat?
MR. LAGEMAAT: I would agree.
THE COURT: Mr. Fox?
THE ACCUSED: I defer to Mr. Lagemaat.
THE COURT: All right. So the response would be quite short. All right, and it would essentially say the verdict has to be unanimous, convict, must all be satisfied, all the elements; acquit, all have a reasonable doubt, doesn't matter if it's all about the same, if everyone has a doubt about the same element. All right. Thank you.
Could we have the jury, please?
THE SHERIFF: Yes, My Lady. The jury, My Lady.
(JURY IN AT 5:42:12 P.M.)
CHARGE TO THE JURY, CONTINUING:
THE COURT: Thank you, members of the jury, thank you for the follow-up question, which does make much more clear what you were asking. And your question, I will read it aloud: "In paragraph 101, does the jury have to be unanimous in order to proceed?"
And just to put that in context, paragraph 1 is dealing with the second element of the offence in Count 1, the criminal harassment, the question asked is did Mr. Fox's conduct harass Ms. Capuano, and paragraph 1 says, "Unless you are satisfied beyond a reasonable doubt that Mr. Fox's conduct harassed Ms. Capuano, you must find Mr. Fox not guilty of criminal harassment. Your deliberations would be over."
Your question, to repeat, is, does the jury have to be unanimous at that point in paragraph 1 -- 101, in order to proceed.
My answer is this. Your verdict, whether of guilty or not guilty, must be unanimous. To convict Mr. Fox of an offence, you must all be satisfied beyond a reasonable doubt of all the elements of the offence.
To acquit Mr. Fox of an offence, you must all have a reasonable doubt about one or more of the elements of the offence. You do not have to agree about which element or elements the Crown has not proven beyond a reasonable doubt.
I am going to say that again, because you do not have anything to follow along with, and it is often hard to take things in.
My answer is this. Your verdict, and I am emphasizing the word "verdict", whether of guilty or not guilty, must be unanimous. To convict Mr. Fox of an offence, in other words to find him guilty, you must all be satisfied beyond a reasonable doubt of all the elements of the offence. To acquit Mr. Fox of an offence, in other words to find him not guilty, you must all have a reasonable doubt about one or more of the elements of the offence. You do not have to agree about which element or elements the Crown has not proven beyond a reasonable doubt.
So I am going to ask you to retire to the jury room, continue your deliberations. If the response I have just given you does not answer your question sufficiently, please give me a further follow-up question and I will try to be more specific and more helpful.
Thank you.
(JURY OUT AT 5:46:36 P.M.)
THE COURT: Any concerns, anything arising from that?
MR. MYHRE: No, My Lady.
MR. LAGEMAAT: My Lady, should we wait a few minutes to see if there's an immediate question back or --
THE COURT: Might be a good idea. I think perhaps if you wouldn't mind waiting five minutes and we'll see and then at some point, probably 45 minutes from now, they will going for dinner, but you will be notified when that happens. Thank you.
THE CLERK: Order in court.
(PROCEEDINGS ADJOURNED AT 5:47:41 P.M. TO AWAIT RETURN OF THE JURY)
Transcriber: G. Agema