Reasons for Sentence (2017-11-10)

In brief overview, Mr. Fox conducted a campaign to, as he put it, make Ms. Capuano's life as miserable as possible, hoping to drive her to suicide if that could be done within the confines of the law. It was a campaign conducted by means of hundreds – probably thousands – of emails he sent her, and sometimes to people she knew, as well as by means of a website he created in her name. These communications were designed to embarrass and humiliate Ms. Capuano by disseminating personal information about her, to undermine her relationships with her family members, friends, and employers and work colleagues, to ruin her financially by preventing her from keeping or gaining employment, and generally to intimidate her.

Before I describe the criminal harassment in greater detail, I will briefly outline the relationship between Mr. Fox and Ms. Capuano.

They first met in January 2000, in Arizona, where they both lived at the time. He was in his mid-twenties, and she was 19. They married in August of that year, and their son G. was born prematurely shortly afterwards.

The marriage broke down the following year, and a high-conflict custody dispute followed. At one point, a joint custody order provided for G. to spend some of his time with Mr. Fox, who lived in California at the time, and some of his time with Ms. Capuano, who lived in Florida. That arrangement continued for a while, but by late 2001 or early 2002, G. was with Mr. Fox entirely and had almost no contact at all with Ms. Capuano for approximately ten years. Mr. Fox and Ms. Capuano have different positions about the reason for the change from shared custody to the absence or exclusion of Ms. Capuano as a parent.

Contact between Ms. Capuano and G. resumed in mid- or late 2011, and so too did the custody dispute. Court proceedings in California eventually led to an order for joint custody under which G. would live mainly with Mr. Fox, and would visit Ms. Capuano on school breaks. That arrangement went relatively smoothly until, in late 2012, Mr. Fox advised Ms. Capuano that he was thinking of moving to Vancouver, BC, to take up a job offer, and he asked for Ms. Capuano's consent to take G. with him. Ms. Capuano did not agree, and Mr. Fox filed a motion with the California court seeking authority to take G. to Canada, and to have Ms. Capuano's access time with G. suspended.

Ms. Capuano understood that Mr. Fox had been living and working illegally in the USA. Fearing that he would succeed in taking G. to Canada, Ms. Capuano on two occasions, in late 2012 and early 2013, notified US immigration authorities of Mr. Fox's status in the USA, as she understood it, and his whereabouts. On both occasions Mr. Fox was removed from the USA without G.

Mr. Fox has lived in Canada since early 2013, after he was removed from the USA for the second time. In the fall of 2013, G. began to visit him during school breaks, and continued those visits for most of the time until early 2016, when Mr. Fox was detained in custody on these charges (on June 16, 2016) after having been detained by US authorities the month before.

Back in 2013, following his removal from the USA, Mr. Fox told Ms. Capuano that if she did not return G. to him, he would devote the rest of his life to destroying her, within the confines of the law. In or around early 2014, he created the website in Ms. Capuano's name containing a very large amount of private information about her and the people associated with her. The website includes a "welcome" message that includes the following:

The goal of this website is to increase awareness of Desiree Capuano, by informing the public of the atrocious, the despicable, and the downright evil things Desiree has done.

We hope that by publishing the truth, together with hard proof (e.g. police reports, court testimony, recordings) of the countless horrendous acts Desiree has been committing all her life, we may help others to avoid being manipulated, exploited and harmed by this seemingly charming and sweet sociopath.

The website includes personal details about Ms. Capuano, as well as purportedly biographical details and information about her character, preferences, and history. It includes dozens, probably hundreds, of photographs of Ms. Capuano in various aspects of her life, sometimes also showing her children (including her younger son in his underwear), her current partner and her previous partners, and the interior of her home. The website details the location of the home, with maps.

The website also details the history of the custody dispute, from Mr. Fox's perspective, and includes copies of the vast email correspondence between him and Ms. Capuano.

Another section of the website focuses, individual by individual, on the people associated with Ms. Capuano. These include her younger son (S.), her mother and her father, her current partner and his mother, and dozens of her friends and work associates. A photograph of each person is shown, together with contact information and a description in, it seems, as much detail as Mr. Fox was able to gather.

A further section purports to detail contact, by Ms. Capuano and people associated with her, with courts of different types of jurisdiction in the USA.

Finally, a series of dozens of blogs or posts, most of them purportedly written by Ms. Capuano, contains content designed to humiliate and degrade her. For example, one post has Ms. Capuano purportedly declaring, in some detail, raging hatred of people of non-white ethnic background. Another post, entitled, "An Open Letter to All Prospective Employers: Why You Should Hire Me", speaks sarcastically and in vulgar language (purportedly in Ms. Capuano's voice) about why she should be hired, the given "reasons" all weighing heavily against her (e.g. "I've never accepted responsibility for anything -- which is okay because so far there's always been someone else to blame it on").

In an email in March 2014, Mr. Fox told Ms. Capuano about the website. He told her that he had sent a link to the website to her colleagues at work, as, in fact, he had, and he taunted her that colleagues would read about what a fool and a poor parent she was, and would see her in her underwear. He sent generally similar emails and many others on countless other subjects over the course of the next several years. I will highlight a few examples.

For example, in December 2014, shortly before the period of the indictment, Mr. Fox outlined in clear terms (in an email, "The Ugly Proof") his objective and the approach he would be taking. He emphasized that his approach was a long-term one: "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". Mr. Fox also noted that he had a changed identity (as Patrick Fox) with a "squeaky clean background", that he travelled easily into the USA, and that he had handguns (although he noted, as he always did, that his statements and references to his firearms should not be taken as a threat). He claimed that for years he had been paying Ms. Capuano a salary through his company, and that he may choose to notify the IRS so that they could collect back taxes from her.

Over the period of the indictment (as well as before that period) Mr. Fox sent Ms. Capuano a vast number of emails in which he told her about the various steps he was taking to humiliate her, to damage her reputation, to undermine her relationships with her children, her spouse, her friends, and her employer, and, he stated he hoped, to make her unemployable and homeless.

He was always explicit about his intentions. In an email on July 23, 2014, before the period of the indictment, he said: "I will destroy you - slowly and incrementally ... [e]very moment of my life is focused on the single goal". He said similar things through the period of the indictment. In a blog post on May 23, 2016, near the end of the period of the indictment, he struck out at critics of his website, and gloated that their criticism had increased the website's public profile. He concluded that, "every day this website continues to make Desiree's life a little more dreary", and that, "[e]very day Desiree gets a few steps closer to that inevitable rock bottom". He made similar comments to the RCMP officer who interviewed him after his arrest.

Mr. Fox succeeded in many of his appalling objectives.

He placed untenable challenges on Ms. Capuano's relationship with G. His purpose in doing so he had outlined in an email in December 2014, shortly before the period of the indictment:

I know that the best way to hurt you, permanently, is emotionally, not through your reputation, finances, or career (remember I told you many months ago that that other stuff I was doing was just to distract you?). And what could be more effective than for your child to utterly despise you because of your own actions?

Mr. Fox gloated about his success in damaging Ms. Capuano's relationship with G. He told Ms. Capuano in numerous emails that she was a terrible parent, and taunted her by saying that G. viewed her and her other, younger son with hatred and disgust. In another email, he told her that he had discussed with G. his plan to ruin her life, using G. as a pawn to do so, and that G. was "okay" with that plan. In an email with the subject line "Your favourite child?", he said he had told G. that Ms. Capuano preferred S. In emails in June and July, 2015, he told her that he and G., who was then around 14 years old, had been "having fun" at her expense by identifying 51 specific defects (which he then listed) relating to her personal appearance, her style of dress, her character, her cooking, and her parenting. In another email, he predicted that G. would be withdrawn and sullen on returning to Ms. Capuano's home, and said that "the misery that will bring you and your home is far greater than a court order for you to return him". These are just some of many examples. Most – probably all – of them were copied to G.

Indeed, most of Mr. Fox's emails to Ms. Capuano, no matter the subject, were also sent to G. This compounded the humiliation Mr. Fox caused Ms. Capuano, and damaged her relationship with G. It no doubt also caused psychological harm to G. as well.

With a reorganization within her company employer, Ms. Capuano lost her job as a systems analyst shortly before or during the period of the indictment. There was no clear evidence that the harassment was the reason that she was selected to be laid off. However, one may reasonably infer that the harassment did not help Ms. Capuano's position because it intruded significantly into the workplace, placing an extra burden on the employer, and it was seen to put other employees at risk. Ms. Capuano certainly saw the situation that way.

Mr. Fox delighted in Ms. Capuano's loss of her employment. In an email in November 2015, he said: "You will soon be homeless; you have no money; nobody believes anything you say anymore; nobody is coming to your aid or defense; you will not be able to secure another job as long as that website exists – and it's not going anywhere as long as you're alive".

At another time, Mr. Fox made a thinly veiled threat to interfere with Ms. Capuano's partner's livelihood, by calling into question the partner's entitlement to the security clearance he required for his employment. Mr. Fox also posted personal information identifying the partner and the partner's mother, including the mother's place of work.

The harassment was particularly insidious because Mr. Fox kept Ms. Capuano in perpetual fear of new ways he would devise to torment her. Mr. Fox's professional expertise is in information technology, and he appeared to Ms. Capuano to have an alarming ability to gain access to confidential information about her and the people in her life. In an email in late January 2015, he threatened to infiltrate and expose her most personal life:

Desiree:

As a show of good faith, I'll fill you in on one of the plans that I'm working on for you. What I'd like, very much, is to be able to add some "intimate" pictures of you to your web site. To do that, of course, I'd have to hire someone to get close to you, pretend to be interested in you. Eventually, gain your trust, then eventually sleep with you. That should take...what? About 3, 4 days? Difficult to find people that unscrupulous. But for the right price there's always someone willing to do what you want. Hooray America! There's nothing criminally illegal about it. You may be able to pursue a claim in civil court, but I'm not going to worry about that.

Okay, good evening.

Patrick

In another email around that time, Mr. Fox casually told Ms. Capuano that he had acquired her medical records, "(unofficially of course)". Then, in an email in November 2015, he threatened future action of several types:

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. But before you reach that point it is imperative that you experience as much misery, disappointment, and suffering as possible first. At this point in your life you have very little to lose so there is not much incentive for me to actively publish your information. I shall wait, patiently, until you rise up a bit, THEN proceed with the billboard campaign around Phoenix; I'll wait until you actually have some financial significance, THEN publish your complete credit and financial history - including your social security number and birth certificate (not illegal as long as it's done outside the US).

As for the other emails to which I have referred in discussing other aspects of the offence, these emails are but a few examples of a vast number of similar communications.

In various of his emails, Mr. Fox reminded Ms. Capuano that he had firearms, and the ability to cross the border (into the USA) surreptitiously. In one email, he detailed the logistics of bringing his firearms into the USA and using them to kill Ms. Capuano, while also adding that he would never do so – despite his wish to – because to kill would be illegal and immoral. In an email in January 2015, he told Ms. Capuano that G. once asked him if he would shoot her, and he explained how he responded as follows:

He [G] 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. ... To be clear, I told Tuchfarber 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 defense or defense of another. Though that is nothing special toward you - I have that rule for *ALL* people. Also, I emphasize that G brought up the question and I only responded to it truthfully.

There can be no doubt that these communications were meant to intimidate Ms. Capuano, despite the caveat Mr. Fox always included about remaining within the confines of the law.

Ms. Capuano contacted various authorities in the USA and Canada at various times, but was unsuccessful in her efforts to have the website removed. Her employer, in the early days, tried to assist, but also did not succeed.

As to Mr. Fox's emails, both before the period of the indictment and during it, she took different approaches in trying to stop or reduce them. She tried ignoring the offensive messages, or responding aggressively with sarcasm or insults, but nothing succeeded. The barrage of emails continued, the abusive nature of the content unchanged.

Undoubtedly to thwart Ms. Capuano's efforts to have the website taken down, Mr. Fox moved it to a different server. Also, during the sentencing proceedings, when Crown counsel suggested that the Court impose a probation order with a condition requiring Mr. Fox to take down the website, Mr. Fox advised that he no longer owns or controls the website, having transferred ownership of it at around the start of the trial. I am told that the wbsite remains online and publicly accessible.

Mr. Fox submits that the jury's verdict may be taken as relating to the emails alone, and not the website, but I disagree. The existence of the website, with its harmful content, underlays much of the harm caused by Mr. Fox's emails. As I have noted, in some of his emails, he reminded Ms. Capuano of the website, or told her of new content recently or soon to be added. In one email, he asked her to let him know if anything on the website was inaccurate. In some emails, he told her about people whose attention he had drawn to the website. In some, he told her how many people had visited the website, and he sometimes included usage graphs. The harassment by way of the emails thus relied in large part on the existence and content of the website, even if Ms. Capuano did not personally read all of that content. She had a fair idea of what the website included, based in large part, though not entirely, on what Mr. Fox told her about it. His emails were part of the way in which Mr. Fox made sure that Ms. Capuano suffered the intended effects of the website.

Throughout, and during these proceedings, Mr. Fox has maintained that the website and his emails do not amount to harassment because what they say is true. His position that there was no harassment is obviously inconsistent with the jury's verdict, but I will also make some comments about it.

From the earliest stages, and continuing through these proceedings, Mr. Fox held firm to the view that all of his statements about Ms. Capuano were true and therefore incapable of amounting to criminal harassment.

Mr. Fox's concept of truth in this context is somewhat elastic and disingenuous. For example, cross-examination in the sentencing hearing revealed that Mr. Fox's sole basis for describing Ms. Capuano as a "white supremacist" numerous times on the website was that her former partner owned a dagger decorated with a swastika design. In another example, Mr. Fox's sole basis for describing Ms. Capuano's current partner as having had "a life of chronic drug abuse" was Mr. Fox's assumption (without actual knowledge) that the partner used caffeine, which Mr. Fox understood to be a drug.

But even if Mr. Fox was convinced that his statements were true, it is abundantly clear from the evidence in the trial, as well as the evidence and submissions in the sentencing hearing, that Mr. Fox's objective was to harm Ms. Capuano, not to provide information to the public. Purporting to provide information simply gave him a convenient vehicle for the harm he was intent on causing.

I turn now to the firearms offence.

Mr. Fox had a licence in Canada to acquire and possess firearms, including restricted firearms, as well as an authorization to transport his restricted firearms to certain places under certain conditions. He committed the offence when he was in possession of his firearms in violation of the conditions, which was while the firearms went from his home in Burnaby, BC to a shipping depot, also in Burnaby, and while they stayed there until UPS picked them up and transported them into the USA.

The firearms had left Mr. Fox's home packed inside the CT unit of a computer in one of numerous – likely between 15 and 25 – boxes of household items sent to the home in California of Mr. Fox's friend.

Four handguns were in the computer, and another firearm, a Mauser rifle, disassembled, was in another of the boxes. A total of seven pistol magazines, as well as ammunition, were also found.