Transcript of Bail Hearing (2019-04-10)

Tomasson:

Just waiting for Mr. Fox, Your Honour.

Judge:

Sir, you're Mr. Fox?

Fox:

Yes, I am.

Judge:

Thank you.

Tomasson:

Yes, Your Honour, for the record, Patti Tomasson appearing for the Crown. Calling the matter of Patrick Fox. This matter is for bail hearing today, Your Honour.

And just to provide you with a bit of background, because Mr. Fox first appeared -- Mr. Fox, I believe you can sit down --

Fox:

Actually, before we begin, may I borrow a pen from someone.

Tomasson:

I have brought --

Fox:

I'm not allowed to bring --

Tomasson:

-- a pen and paper for Mr. Fox.

Fox:

Great, thank you. And I would like to again, before we begin, I'd like to express my strong opposition to the publication ban that was ordered last week. I oppose any publication bans whatsoever, and the Crown had requested it, supposedly on my behalf, but I certainly would not want any publication bans in place. Can we -- is it possible to have that vacated?

Judge:

Well, I'll tell you what, we'll -- we'll get to that in a moment.

Fox:

Sure.

Judge:

I'll just let Ms. Tomasson finish introducing herself --

Fox:

Thank you.

Judge:

-- and giving me just a little bit of a lay of the land where things start.

Tomasson:

Yes, Your Honour. Mr. Fox first appeared in custody on -- last Friday, and at that time he appeared initially in courtroom 101 where he expressed his desire to represent himself - duty counsel did speak with him - and then we went up to a court for a bail hearing and another judge went through with him in detail what was going to happen, the Crown was seeking his detention and that -- strongly advised him to seek representation.

He spoke with duty counsel again and chose not to represent himself. That took some time. And then, we were in front of a third judge who again strongly advised him to seek some representation, and in fact, duty counsel was there that afternoon.

Mr. Fox chose on all occasions not to represent himself. He appeared in courtroom 101 this morning and expressed to the judge there that he wanted to represent himself. That is why he is here representing himself, Your Honour.

At the last hearing on Friday there was -- I made an application on his behalf, that is correct, under Section 517 for a publication ban. In the Crown's submission, that is appropriate in these circumstances where there will be a bail hearing.

The allegations are breaches of probation, but we will be discussing the underlying circumstances of the last conviction that are quite serious, and in relation to these proceedings, the Crown is of the opinion that it is in his best interest.

Mr. Fox, from time-to-time, has stated things that are not in his best interest and for those to be published in the media, in the Crown's submission, would be detrimental to him.

There is also an outstanding investigation that I will be speaking of, and I would not want that to prejudice what might be further charges against Mr. Fox, which may not be in front of a provincial court judge, but may be.

Last time he was in court, Your Honour, on the criminal harassment and firearms charges, he chose to represent himself in a jury trial, and so I would not want, if there are further charges coming out, that any of these proceedings be in the media prior to conviction.

Judge:

Okay. Mr. Fox, I'm going to address two things with you. Firstly - so just stand up - I understand that you were in court, from what Ms. Tomasson said, on Friday, April 5th, and you wanted counsel to assist you.

You're here today saying that you're prepared to represent yourself. Did you want counsel to assist you today?

Fox:

No, no, I did not. I also did not Friday of last week. I spoke briefly with the duty -- duty counsel, and I think that that was sufficient for me to decide that I definitely did not want duty counsel representing me.

Judge:

Did you want to -- okay, but maybe not duty counsel, but did you want some time to see if you could procure other counsel?

Fox:

I am 100 percent confident that any lawyer that would represent me that would be paid by LSS, would absolutely not operate in my interests, based on my experience with the three lawyers that I've dealt with previously in this matter.

Judge:

All right. What about -- and I don't want to get into this too much --

Fox:

Mm-hmm.

Judge:

-- but you've mentioned lawyers provided to you through LSS, Legal Services Society. What about privately retaining counsel, is that something you're interested in, or -- or specifying with Legal Services Society, which lawyer you would like and speaking to that lawyer to see if they would take it on a Legal Services Society retainer?

Fox:

I would be open to that, and again, my experience has been that it seems that lawyers from outside of the Vancouver area, I would have much more confidence in.

Judge:

Lawyers from --

Fox:

Not --

Judge:

-- outside Vancouver?

Fox:

Right, right, because from -- from what I've seen, discussing the matter with other people who have had similar experiences to what I have had, it seems that lawyers from outside of the Vancouver area are much more likely to raise the issues that have been going on in my case -- well, that I say have been going on in my case. The ineffective assistance, etc., the collusion between the Crown Counsel and the defence attorney, etc.

Judge:

Okay. Well, given -- let's -- let's talk about this a little bit more. Given the stakes, and the stakes are high, obviously, your liberty is -- is at interest in this bail hearing. Just hear me out for a second.

Fox:

Yeah, yeah.

Judge:

I don't want to push on unless you are 100 percent comfortable and confident that you, through counsel, if that's how you'd like to do it, are able to put your best foot forward, because as has probably been explained to you, you don't -- you don't have opportunities for bail as of right, once you are detained.

So, for example, if you run a bail hearing and the court detains you, then you have limited options to get back in front of the court to reapply for bail, because the review would need to take place up at Supreme Court, transcripts need to be ordered, that takes time for scheduling. Or in the alternative, Crown counsel would have to agree and that's something within their discretion that you may not have any control over. Or, you would have to at least wait 90 days before you could possibly get back before.

So the stakes are high, and I don't -- I'm reluctant to have you forge ahead unless you think that the best possible case can be put forward for your release.

So prefacing my next question with those comments, do you want a little bit of time to see, to speak to lawyers privately, or to see if (a) you can afford one; or (b) if they were taken on a Legal Services retainer? It could be counsel from outside of the Lower Mainland, if that's where your confidence lies.

Fox:

Allow me to say, before I answer that directly, since I have no status in Canada, I would think that I would inherently be a flight risk. I am not a Canadian citizen. My presence in Canada is illegal. So given that, I find it highly unlikely I'm going to be granted bail anyway.

And even if I was released on bail, I'm not authorized to work in Canada, I have no place to go, so I'm not even sure that I would -- I don't want to say I don't want to be released. It's just that if I am released, I'm in a much worse situation than I am staying in jail. And even if there were no proba -- or bail conditions, there's still the probation conditions which prohibit me from leaving a country that I have no status in, that I'm not allowed to work in.

I mean, the whole thing seems to me to be an incredible farce, just keep me in jail, what's the point?

Judge:

Well, ultimately that's another option, you can consent to remain in jail.

Fox:

Well, I certainly don't want to consent, and then later people are going to say, oh, well, you consented to it, you know. So I have to fight it as much as I can, just so I can say --

Judge:

Okay.

Fox:

-- I did everything I could.

Judge:

I -- I understand. Do you want to have counsel assist you in that process, or do you feel that you want to go ahead on your own today?

Fox:

I honestly don't think it's going to make any difference either way. So I might as well just do it on my own. And I say all this with the utmost respect for the court.

Judge:

No, and I --

Fox:

I'm not trying --

Judge:

You know --

Fox:

-- to be disrespectful.

Judge:

And, Mr. Fox, nothing you've said is disrespectful to the court, so --

Fox:

Okay.

Judge:

-- so I appreciate that. I don't take any -- any offence to anything you said.

Well, I'm -- I can't give you legal advice --

Fox:

Mm-hmm.

Judge:

-- obviously, so I -- I'm going to stop my inquiries there. I think I've expressed my concerns to you, which probably echo the same concerns that other judges said, which is the stakes are high at a bail hearing. Your liberty is at stake. It's important to put your best foot forward. I can't tell you -- I can't give you legal advice. If you're saying, look at, I just want to go ahead, and this is how you've rationalized going ahead, this is how you've explained to me, I can't deny you the right to have a bail hearing. And so if that's what you prefer to do, then we'll have your bail hearing.

Fox:

Okay.

Judge:

Okay, you're comfortable with that?

Fox:

Yes, I am. Thank you.

Judge:

Okay.

Fox:

Um --

Judge:

Thanks. Now we'll move on to the publication ban, but just have a seat --

Fox:

Sure.

Judge:

-- for one second. I just want to read the -- I just want to read 517 one more time. I'm just going to read the section, Mr. Fox, again, with respect to the publication ban.

Ms. Tomasson --

Tomasson:

Yes, Your Honour?

Judge:

-- you've expressed the reason why the Crown applied for a publication ban, which was essentially bending over to assist Mr. Fox --

Tomasson:

Yes, Your --

Judge:

-- today and going forward?

Tomasson:

Yes.

Judge:

Actually, sorry, have a seat. I'll hear from Mr. Fox --

Tomasson:

Certainly, but --

Judge:

-- again for a second --

Tomasson:

-- in terms of --

Judge:

-- unless there's something you want to add.

Tomasson:

Certainly. But in terms of the section, since it directs a court to -- that they shall, that's why the Crown made the application on behalf of the accused, but we are making the application on behalf of the Crown and it's a discretionary order.

Judge:

Yes.

Tomasson:

And so, we are asking for it.

Judge:

Okay.

Tomasson:

Thank you.

Judge:

I'm glad you clarified that because that's -- that was on my mind --

Tomasson:

Thank you.

Judge:

-- as I just read the section.

Mr. Fox, you heard the Crown's justification for seeking a publication ban. It's a concern for your status today and going forward with respect to details that were -- that are about to be discussed at this bail hearing being published in the media, and potential problems that may exist for you as a result. Have you changed your view having heard that?

Fox:

I have not, and I'm quite certain that any -- any information or evidence that might come up at this bail hearing, most likely is already publicly assessible on the website anyway. I mean, aside from any false allegations --

Judge:

Okay.

Fox:

-- or completely unfounded allegations that the Crown might make. Those obviously would not be.

Judge:

Tell me this, out of curiosity --

Fox:

Certainly.

Judge:

-- because most people err on the side of caution, they don't want that information out there.

Fox:

Mm-hmm.

Judge:

They don't want that information out there because once it's out there, they've lost all control. Why do you -- why are you saying no publication ban?

Fox:

I want everything in this matter, just like with the trial before it, to be completely public because I don't believe that I committed any crime, I don't believe I committed criminal -- criminal harassment.

The only way the Crown was able to get the conviction was by having the defence attorney, Tony Lagemaat, that was forced on me against my objections, to do the cross-examination, to collude with Mr. Myhre to suppress a huge amount of evidence at the trial, and the proof in the evidence of that also has already been published on the website, so that's all publicly assessible at this point.

Judge:

Well, I gather there's also an outstanding investigation that's going to be referred to that's not out there, and --

Fox:

I --

Judge:

-- maybe nothing comes of it --

Fox:

Mm-hmm.

Judge:

-- and yet it could all be published and it could stain you with information published online on -- potentially on the internet --

Fox:

Mm-hmm.

Judge:

-- that never amounts to anything but the stain remains. And that's something that I'm sure you don't want to --

Fox:

Um --

Judge:

-- risk.

Fox:

I understand that, and with respect to that supposed investigation, I would insist, or even demand, that the Crown charge me with criminal harassment again for putting that website back up, and I would insist that they charge me with violating probation for putting that website back up, because if I did put that website up, it would violate the probation order.

I would very much look forward to having another trial for criminal harassment based on that website.

Sutherland points out that if there's an ongoing investigation which gets discussed during the bail hearing, and there's no publication ban, then the news media would be able to report about that and, even if nothing comes of that investigation, the potentially negative effects of that news coverage would remain.

I tell Sutherland I'm fine with that. I tell him I insist on being prosecuted again for criminal harassment and for breaching the probation order by putting the website online. The reason is because a new trial would mean Capuano would have to testify again and I would be able to confront her with all the proof of all the perjury she committed at that first trial; and I would be able to present to the jury all the evidence of the corruption and collusion that the prosecutor engaged in.

Also, since Capuano had filed a civil defamation suit against me (which ultimately went nowhere), that proves that she is not opposed to being cross-examined by me personally so there would not be another section 486.3 appoointment like there was at the first criminal harassment trial.

And --

Judge:

Okay.

Fox:

-- I know that the news media is only going to write one side of this. They're only going to write the stuff that makes me look very bad. That's historically what they've done so far in this matter.

But I still have the freedom and the opportunity to publish the rest of the story that the news media doesn't write, which, again, is on the website. I --

Judge:

All right. Well -- well perhaps what I'll do --

Fox:

Sure.

Judge:

-- in re -- if you asked for the publication ban, it would be mandatory that I would have to impose it. Crown counsel asks for the publication ban, it's discretionary, so it's -- I don't have to impose it.

Quite frankly, I'm in a total vacuum. I don't know the circumstances at all. I'm going to hear them real soon, so I don't really know what's at play.

Fox:

Mm-hmm.

Judge:

Why don't I hold off -- Ms. Tomasson, what's the downside to me deferring my decision on the publication ban?

Tomasson:

Well, there is currently --

Judge:

What am I --

Tomasson:

There is currently --

Judge:

What am I --

Tomasson:

-- a publication ban in place.

Judge:

Yeah. Yeah.

Tomasson:

What I think --

Judge:

I think it's --

Tomasson:

-- Mr. Fox is asking --

Judge:

-- removing --

Tomasson:

-- is removing that.

Judge:

Yeah.

Tomasson:

And so at this point, there is no downside because it will remain in effect unless you change it.

Judge:

Yeah.

Tomasson:

And so, any submissions I make, or any submissions Mr. Fox makes at this time is still covered by the ban.

Judge:

No, I appreciate that, but --

Tomasson:

So I don't --

Judge:

-- what's the down --

Tomasson:

I don't think there's any downside to deferring your decision until you know more about it.

Judge:

That's what I'm going to do.

Tomasson:

Yes.

Judge:

You know what, Mr. Fox, I think what I'm going to do is because I'm in a vacuum, and I do have a responsibility to ensure, obviously, fairness for you and fairness to the Crown, and fairness to the public. These courts belong to the public. They're -- they're not my courts, or your courts.

And I'm in a bit of a vacuum. I -- quite frankly, I know the outstanding charges against you, because I've been handed them up, but I know nothing about your case.

So what I'm going to do is I'm going to leave it status quo and I'll defer my decision until I hear a little bit more, okay?

Fox:

Certainly.

Judge:

All right, you're comfortable with that, good. Okay.

Tomasson:

Yes, Your Honour, and there's one more preliminary matter. At the last date, as well, Mr. Fox requested that the Crown obtain some documents that had been -- he had provided to the Crown at a bail variation to -- rather a probation variation hearing that was set in March in Supreme Court, and so those documents I have obtained for Mr. Fox. That was one of the main reasons why we adjourned the bail hearing from last date, and I've got copies for him and I just wanted to put -- give those to him on the record --

Judge:

Yeah.

Tomasson:

-- so that it's --

Judge:

Yeah.

Tomasson:

And what I've done is I've provided -- I've got copies that he can provide the court with should he want to use this material --

Judge:

Okay.

Tomasson:

-- during this hearing.

Fox:

Thank you.

Tomasson:

And I just would like Mr. Fox to go through that and confirm that those are the documents that he was requesting.

Fox:

Yes. Yes, they are. This one won't be necessary for this though. I'm -- I'm just letting you know, I'm -- you have --

Judge:

You -- you --

Tomasson:

But is --

Judge:

-- you can hang --

Fox:

I'll just put that --

Judge:

-- onto it if you want, or you --

Fox:

-- aside, yeah.

Judge:

-- could give it back to Ms. Tomasson.

Fox:

Right.

Tomasson:

If -- if you don't require that, I'll take that back.

Fox:

Well, I will require that later at the probation -- or at the hearing in the violation matter.

Judge:

All right. Ms. Tomasson, are you ready to proceed?

Tomasson:

Yes, I am, Your Honour.

Judge:

You've got a pen. You've got a pad there.

Fox:

I do, thank you.

Judge:

You're ready to make notes.

Tomasson:

Yes, Your Honour. Mr. Fox is in custody on three counts of breach of probation, and in the Crown's submission, Mr. Fox should be detained on the primary, secondary and tertiary grounds.

At first blush, Your Honour may be wondering why it is that the Crown is seeking his detention on what are usually not charges in which we seek detention. But these charges arise out of a Supreme Court order, which I will hand up to Your Honour at this time, and I will provide copies to Mr. Fox.

The first document --

Judge:

Thank you.

Tomasson:

-- is the conviction list, and I'd ask that be marked as the first exhibit on the bail hearing. That is the -- Mr. Fox's Canadian criminal record. As you'll see, he was convicted on November 10th, 2017 of criminal harassment and possession of firearms, and he was sentenced to three years and 10 months.

Tomasson:

This next document is the probation order that arose from the sentencing hearing. I'd ask that be marked as Exhibit 2 in these proceedings.

Tomasson:

And the conditions that we are dealing with are Condition 5, in which he was to report every four days to his probation officer; Condition 9, in which he was prohibited from leaving the Province of British Columbia, and Condition 10 that he was not to be within 100 metres of the United States border.

Judge:

So, Mr. Fox, these documents have been -- Crown counsel's asking that they be marked as exhibits. That just means that they form part of the evidence that ultimately I'll base my decision on. I take it you have no problem with me looking at these documents and --

Fox:

That's correct. I --

Judge:

-- considering them?

Fox:

-- have no opposition.

Judge:

All right, thank you. Are the copies that I have, are they for me, or --

Tomasson:

Yes, they are.

Judge:

Okay, so I can mark them up?

Tomasson:

Yes, Your Honour.

Judge:

Okay, thank you.

Tomasson:

Now, in order to understand the seriousness of the breaches, Your Honour, I will be going through the circumstances of the underlying convictions, and in that regard I'll hand up a copy of the sentencing decision, and again, there's a copy for an exhibit, a copy for Your Honour, and, of course, I'll provide Mr. Fox with his own copy.

Fox:

Thank you.

Tomasson:

I'd ask that be marked as the next exhibit.

Judge:

Mr. Fox, you have no problem with me looking at the decision? It's public, in any event.

Fox:

No, I don't.

Judge:

Thank you.

Fox:

Thank you.

Tomasson:

Now, this --

Judge:

All right. So the decision will be Exhibit 3.

Tomasson:

Thank you, Your Honour.

Tomasson:

Now, these breach charges arise out of this Supreme Court order which was imposed on Mr. Fox after he was convicted of criminal harassment of his ex-wife and firearms offences.

Now, at paragraph 5 of that decision at page 3 in the sentencing decision, in relation to the criminal harassment, the court provides a brief overview [as read in]:

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.

And, I'm quoting from paragraph 5, Your Honour.

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.

Now, Ms. Capuano and the accused had been in a relationship. They were married. They had one child together. And after they separated, there was a custody battle over the child, and as a result of that, Mr. Fox, who at that time he was -- although Mr. Fox has said that he's a U.S. citizen, he is not in the Crown's submission. He's a Canadian citizen, born in Sudbury, Ontario.

The name in which he was born under was Richard Reis, R-e-i-s, and Mr. Fox, when he returned to Canada, changed his name to the name upon which he's convicted under, Patrick Fox, and has continued to maintain that he is, in fact, a United States citizen for an -- very number of years.

The last exhibit I will be handing up is a decision from his conviction in the United States, and I'll just be referring to the first page under "Background" on the right-hand side of the page [as read in]:

On November 5, 2008, following a jury trial, the jury returned verdicts of -- on both counts alleged against --

As he -- he was then named, Mr. Reis, and he was convicted of perjury and a false claim of citizenship.

And what had occurred is that during a court proceeding before an Immigration judge in October of 2007, he took an oath to testify truthfully and at that hearing he was found to have said that he -- he alleged he was a United States citizen. That was found to be false.

He was sentenced to 24 months in prison and three years of supervised release.

Now, after returning to Canada he setup over the course of a number of years a website, and this is detailed at paragraph 13, page 4 of the decision.

Judge:

Sorry, of which decision?

Tomasson:

Of the Fox, the sentencing decision on criminal harassment. The sentencing decision of Judge Holmes at paragraph 13, page 4 [as read in]:

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.

And I'll pause here that his background is in IT, so he is very familiar with computers and how to gain information.

Continuing on at paragraph 16 [as read in]:

A further section purports to detail contact, by Ms. Capuano and people associated with her, with courts of different types of jurisdictions 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 her voice) about why she should be hired, the given "reasons" about all weighing heavily against her (i.e. "I've never accepted responsibility for everything -- which is okay because so far there's always been someone else to blame it on").

Now, this went on for some time with Ms. Capuano trying to get the authorities to do something which ultimately resulted in the laying of the Indictment which had about a year-and-a- half of the conduct, but there was conduct prior to that.

But at paragraph 21 the court details an email that he sent in July of 2014 concerning his intent in relation to the website, and I quote [as read in]:

I will destroy you - slowly and incrementally ... [e]very moment of my life is focused on the single goal.

At paragraph 23, detailing another email he sent to her in December of 2014 :

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 going to do was just to distract you?). And what could be more effective than for your child to utterly despise you because of your own actions?

And then, at paragraph 25 [as read in]:

Indeed, most of Mr. Fox's emails to Ms. Capuano, no matter the subject, was also sent to G.

Which is the child; their child by that marriage.

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.

Ms. Capuano did end up losing her employment, and at paragraph 27 [as read in]:

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 paragraph 29 the court commented:

The harassment --

Judge:

Hang on one sec, Ms. Tomasson.

Tomasson:

Certainly.

Judge:

Mr. Fox, do -- I should have explained to you at the outset how the proceedings work --

Fox:

Well, I --

Judge:

-- and you may be -- you may have some familiarity with it already, but Crown counsel is seeking your detention so they need to establish --

Fox:

Right.

Judge:

-- that you ought to be detained. They are pointing to three different grounds. They are saying one, that you will likely leave the jurisdiction of the courts if you were to be released; two, if you were to be released from custody, there is a substantial likelihood that you will commit an offence, and that that offence would be one that would harm the administration of justice or endanger the public in some way; and three, which is a broader ground, essentially, that it would be contrary to the administration of justice for you to be released as the public would lose confidence in the administration of justice if you were to be released.

And I'll go through these a little bit more right before your -- you get your opportunity, but -- so Crown counsel right now is laying the foundation for their position, and you will have an opportunity when Crown counsel is finished to address those areas that I've just mentioned, and I'll repeat them to you and ensure that you understand them. But you will have an opportunity for sure.

Fox:

I -- I understand this. It's just -- I don't think there's any dispute that I'm a jerk, or a mean person, or I was very mean to Ms. Capuano, so is this really necessary to have to go through all this horrible stuff that I supposedly did to her? I mean, nobody's disputing this.

Judge:

Yeah. I appreciate that it's not in dispute --

Fox:

Okay.

Judge:

-- but ultimately I need to make the decision and I don't know any of this stuff.

Fox:

All right.

Judge:

So it --

Fox:

My apologies.

Judge:

Yeah -- no, that's okay. So it will assist me hearing these details.

Go ahead, Ms. Tomasson.

Tomasson:

Thank you, Your Honour.

Paragraph 29 [as read in]:

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 January of 2017 [sic], he threatened to in filtrate and expose her most personal life:

And then, further down, at the second quoted part in an email [as read in]:

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...

At paragraph 31 [as read in]:

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 ...

And at the end of that paragraph [as read in]:

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.

So he would make these threats, Your Honour, but then say he wasn't serious about actually causing her physical harm.

Judge:

Was Ms. Capuano in the U.S.?

Tomasson:

Yes. She is a -- she is an American citizen and lives in the U.S.

At paragraph 41 the court goes into what happen in relation to the firearms offences [as read in]:

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 with UPS picked them up and transported them into the USA.

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

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

So those -- that briefly outlines the circumstances, Your Honour, of the criminal harassment and the firearms offences.

Mr. Fox, as I've said already, was sentenced to three years and 10 months with time for -- he was detained in custody on those charges, and so at the time of sentencing, the total sentence was 20-and-a-half months remaining.

He was released from custody from that sentence on December 30th of 2018, so approximately three months ago.

He -- on January 4th of 2019, he filed an application in Supreme Court to vary the terms of his probation order, in particular, the term not to leave British Columbia.

On February 6th, that application was first heard and then adjourned over to March 14th of 2019. During the February 6th application he was permitted - and you'll see it on the probation order in front of you - a variation in relation to access to the internet in relation to an ongoing appeal he has in our Court of Appeal for his conviction. He's launched a conviction appeal.

On March 14th of 2019 the application continued in relation to the terms of not leaving British Columbia, and that application was denied by Judge Holmes.

At that time, as I understand it, Mr. Fox made similar representations to the court that he was not a Canadian citizen, and that he had no status in Canada.

Judge Holmes found that, in fact, he -- the records before her, that he is a Canadian citizen, he has a Canadian passport, and that those terms remained in place for the security of the complainant who lives in the United States.

Now, Mr. Fox also has a term of his probation in relation to the website that he set up, that he was not to disseminate any further information on that website, and in fact, he was supposed to take that website down.

That website, and another website -- I'll start with the -- the first website. That website was inactive during the time he was in custody, and has become active again since Mr. Fox has been released from custody, as well as it seems that there is another website using a shortened version of Ms. Capuano's first name that has also been launched since his release.

Judge:

So both of these websites relate to Ms. Capuano?

Tomasson:

Yes.

What is troubling as well is that it appears that Mr. Fox has also published on those websites disclosure material that would have been provided to him by the Crown for his original trial. He was under a court order from this court that when he was provided with the disclosure that he not, obviously, publish it or disseminate it as he was representing himself and the court felt that was necessary because of the undertakings that lawyers usually take -- give in relation to disclosure. As well as it appears that there are audio clips of DARS recordings from those hearings.

Judge:

So let me --

Tomasson:

That is -- --

Judge:

-- let me repeat --

Tomasson:

-- that is the active --

Judge:

-- this back to you --

Tomasson:

Certainly.

Judge:

-- just so I understand. So there was the current website, what I'll call the current website, the --

Tomasson:

Yes.

Judge:

-- existing website that is referred to in the decision of --

Tomasson:

Yes.

Judge:

-- of Fox. That was inactive while Mr. Fox was in custody, but since he's been released on December 30th, so about three months ago, that is now active again?

Tomasson:

Yes.

Judge:

And a second website has been set up since he's been out --

Tomasson:

Yes.

Judge:

-- that also addresses Mr. Capuano?

Tomasson:

Yes.

Judge:

On one of these two there's disclosure that was received by the Crown, disclosure of the fruits of the investigation, that despite a court order in place that he not publish anything, it has been published.

Tomasson:

Yes.

Judge:

And secondly, audio clips of court proceedings have also made it onto one of these two websites?

Tomasson:

That's correct.

Judge:

Okay.

Tomasson:

And that's --

Judge:

All right.

Tomasson:

That's an ongoing -- that's the ongoing investigation, and as Your Honour can appreciate, that investigation involves searching out those websites, determining things, such as the IP address, where the website has been accessed from. When Mr. Fox was most recently arrested, and I'm coming up to those -- these charges before the court, he did have a tablet in his possession, as well as a cellphone, and those materials there -- the police are getting a warrant for and will be looking into those to potentially link them to these websites. So that's the ongoing investigation.

But why that is important as well is that through the series of coming up to leaving Canada, so his application was denied on March 14th to amend that -- to permit him to leave British Columbia. So that's denied on the 14th.

On the 15th he made his required appointment with his probation officer, so the day after his application was denied, and the police had already contacted the probation officer about the website, because there is a term in the probation order that he's supposed to take that website down.

So the probation officer had some discussions about the website and that term, and what Mr. Fox said at that time was that he couldn't do anything about it. It was run by a third party and he had no control over it.

However, the material on it, Your Honour, would suggest that either he put that material on the website, or provided it to someone, but he was aware that the police were doing this investigation as the probation officer discussed it with him.

And in the Crown's submission, that also goes to the fact of why it was that he chose that day to leave Canada.

In terms of the compliance with this probation order, the only term he has been complying with, in the Crown's submission, is his reporting, and providing his residential address to his probation officer.

He was sent for a forensic assessment, and he refused to participate unless he could record the matters that they were discussing with him. That is similar to what happened when he was also sent for a psychiatric assessment during his sentencing, and he made the same demand, which, of course, was not permitted.

Judge:

You may be getting to this, but in terms of any additional information -- or firstly, has there been additional information put on these two websites, other than what you've already described?

Tomasson:

Yes, there has been.

Judge:

And is it harassing, and -- could someone characterize it as harassing?

Tomasson:

Someone could characterize it as harassing, yes, in the Crown's submission. But those -- like I said, very preliminary investigations.

Judge:

Yeah. Okay, thank you.

Tomasson:

So what happens on the 15th, after Mr. Fox leaves his probation office, is he took a bus to the U.S. border, he walked across the border, he was detained by the U.S. authorities, and he, at that point, sought asylum in the United States and claimed under oath again to being a U.S. citizen.

Because of his claim of asylum, Mr. Fox was detained by the U.S. authorities on March 15th as that can be a very lengthy process to try to determine what it going on, and so he was not returned to Canada until last Thursday when the U.S. authorities made their final determinations and -- and sent him back to Canada.

Once in -- and so he was returned to Canada and turned directly over to the RCMP who had those -- the breach of probation, because he was to report March 19th, and obviously by that time he was in -- had left the -- for the States, as well as leaving British Columbia and being with 100 metres of the U.S. border.

He was interviewed on Thursday evening of last week by the police, and he could not deny what I've set out to the court in terms of leaving his probation officer's office, taking a bus and crossing the border.

In relation to -- he was asked during that interview when he decided to go to the United States, and his response was, "The moment I was sentenced." So that would have been November 10th of 2017.

He was asked about the website and made comments to the effect of, "If I don't publish it, I'm not in breach of my order. Someone else may have taken the information and published it." And he also stated that once the probation order expires, he intends on continuing with the website.

In the Crown's submission, Mr. Fox should be detained on these charges. It is apparent he has no intention on complying with the terms of probation. The website upon which these charges arose, and on which he can stop using and take down, and is one of his terms or probation to do so, appears to be active. The -- he has no intention of staying in British Columbia. He is intent on continuing to declare that he is a citizen of the United States.

In the documents that he may be referring to, that he asked the Crown to provide to him today, he's made an application to -- for social assistance. In that document he's claimed he's a U.S. citizen, and therefore social assistance was denied.

So Mr. Fox, in the Crown's submission, he's a man who currently has no work, is living in a shelter, or was before he was -- he left the province, and even upon seeking social assistance which would assist him in getting at least different accommodation and an ability to start in a rehabilitative process towards doing something other than this vendetta that he's got against his ex-wife, he made an application, which was ultimately denied because he claimed to be a U.S. citizen and they denied his application because he provided documentation that he was a U.S. citizen, rather than providing his passport, which is that he's a Canadian citizen and he would have been entitled to these benefits. So in the Crown's submission, he does not act in his own best interest.

The -- obviously since he's already left British Columbia, the Crown is concerned that he may try to leave the country through not -- not going through a border, because he is so intent, and has been, since the decision before your court -- the Riess decision of making these claims since 2007.

Obviously, the Crown's concerned on the secondary ground. He currently has breached three terms of his probation, and there is a serious outstanding investigation in relation to the ongoing use of the website.

And finally, in terms of the public confidence, I'm going to hand up to Your Honour a recent decision from our Court of Appeal.

Judge:

Thanks.

Tomasson:

This decision is just from last month, Your Honour, and it's dealing with bail pending appeal, and so not exactly the same situation as initial bail. But the decision that they're referring to, R. v. Oland from our -- from the Supreme Court of Canada says that the considerations under a bail pending appeal are the same considerations as Section 515(c), that -- the tertiary ground.

And why I suggest that this is a case that has some relevance is in this decision, Mr. Veeken had breached bail conditions, and the court is commenting on breach of bail and why that should be of concern to the court as it reflects on how the court's process is treated and how the court is viewed by the public.

And beginning at page 5 --

Judge:

Yes, I'm there.

Tomasson:

-- paragraph 18 [as read in]:

Conditions in the nature of Condition 6 --

Which was a bail -- breach of bail condition.

-- are imposed as precautionary conditions to avoid circumstances in which a person may be tempted to reoffend. It is crucial for the protection of the public that they be obeyed. It must be recognized that enforcement of such conditions can be problematic because detections of breaches is difficult. To a large extent, courts must be able to place trust in an accused to comply with the conditions that they impose. For that reason, any breach of a bail condition is to be taken seriously.

And so, in the Crown's submission, those can be echoed for breach of bail -- breach of rather probation conditions. [As read in]:

Breaches raise concerns about reoffending because bail conditions are put in place to avert conditions that might lead to such conduct. Breaches also limit the ability of the public to have faith and confidence in the administration of justice. I note as well that in this case, Mr. Veeken himself brought a number of applications to amend and delete the bail conditions.

And I pause to say, as did Mr. Fox just prior to breaching these conditions:

These include an application to this court under Section 680 of the Criminal Code. In those applications, Mr. Veeken argued that the conditions were unnecessary and unlawful, but also that they were examples of ridiculous burdens placed on him by the administration of justice. Together with the breach, that indicates an attitude towards bail conditions that is not conducive to the public having confidence in the administration of justice. The conditions that were in place were not complied with in the past. The court cannot have confidence that they will be complied with in the future. In addition, of course, I have indicated that there is -- there will be a lack of public confidence in compliance.

And I would suggest to the court that there can be no conditions put in place that this court will have any confidence in, or the public would have any confidence in, that Mr. Fox would comply with on bail.

Subject to any questions Your Honour has, those are my submissions.

Judge:

No, I don't have any questions.

So Mr. Fox, this is -- we're now at the point where it's your opportunity to try to convince the court that the Crown has not established grounds for your detention.

We take a morning break usually around 11:00, so close to now. If you like, what we can do is I can give you a little primer on the law on bail, and then you can consider that over the break and gather your thoughts, and then when we come back from the break I can hear from you. Do you want to do that?

Fox:

No, I don't believe that that will be necessary.

Judge:

Okay. You understand -- you want me to repeat to you what I said about these expressions that you've heard, the primary ground, the secondary ground and the tertiary ground so you understand what those are?

Fox:

No. I'm -- I'm familiar with them.

Judge:

Are you?

Fox:

Yes.

Judge:

Okay, because I'm happy to repeat them for you if you want.

Fox:

No, no, no, no.

Judge:

Okay.

Fox:

I think -- I mean, if the court agrees, I think that this would be an ideal time then to take a break and --

Judge:

Yeah, probably a good time. All right. And then you can -- once again you can gather your thoughts if you like over the break and we'll come back and I'll hear from you. Then I'll hear anything in reply from Ms. Tomasson and then I will be in a position to give my decision today for sure, poss -- depending on how long the submissions are. That will determine when, in the course of the day, I'll be able to give my decision. Okay?

Fox:

Wonderful.

Judge:

All right, any questions at all? Anything --

Fox:

No.

Judge:

-- at this point? Okay. All right, we'll take the morning break. Thank you.

Fox:

Thank you.

Sheriff:

Order in court, all rise.

Tomasson:

Yes, Your Honour, before Mr. Fox proceeds, I just thought that since I did reference the court order that was placed -- put in place in relation to the disclosure, that I'd ask that that be marked as an exhibit so that Your Honour can see the terms of that.

Judge:

Sure.

Tomasson:

I again have a copy for an exhibit and a copy for Your Honour.

Judge:

Thank you.

Tomasson:

I'll provide a copy to Mr. Fox.

Fox:

This would be Exhibit 3, I believe.

Tomasson:

Exhibit 5.

Clerk:

Exhibit 5.

Fox:

5, oh. Oh, yeah.

Judge:

Okay, thank you.

Mr. Fox, let me hear from you.

Fox:

Okay. The first issue -- and I think it is p robably the most significant issue, is this question of my citizenship and whether or not I have status.

The reason I think that this is critical, even for the purposes of the bail hearing, is that if I am a Canadian citizen, then I clearly acted in bad faith by leaving Canada and most likely to evade the probation conditions or whatever other reason.

However, if I'm not a Canadian citizen, then that means that I have no status in Canada, no social insurance number, can't get social assistance, etc., and the probation conditions essentially force me to be homeless and destitute for the full three-year period, as well as also forcing me to perpetually be in violation of the Immigration laws by remaining in Canada.

Now, it's my understanding, and I'm sure this isn't going to be disputed, but a court cannot impose a probation condition on a person which would necessarily force them to break the law. I remember reading that in case law somewhere, but I can't remember which right now.

So, the only agency in North America, in either Canada or the United States, that has the power to declare that a person is or is not a Canadian citizen is Immigration, Refugees and Citizenship Canada, or IRCC. And this document that I have here that the Crown printed for me clearly states that -- that I was born in the United States of America, citizenship is unknown and my last country of permanent residence is unknown.

Judge:

Do you want -- do you want me to look at that document?

Fox:

Yes, please.

Judge:

Sure.

Fox:

How shall I --

Judge:

Do you have a -- you can give it to Madam Clerk.

Fox:

Thank you, and here's a copy for you.

Now --

Judge:

Just give me one sec.

Fox:

Sure.

Judge:

Okay.

Fox:

I would like to point out that on the last page of this, there's something called a non-computer-based entry, and these are just case notes that IRCC uses in their field operation support system. There's a remarks section at the bottom here, and the Crown has brought up a number of times that what they're saying there is that IRCC has determined that I was that person from Sudbury, Ontario, but that's not at all what they're claiming in here.

What they're saying is that a passport was issued in that name, and based on the existence of that passport, there is a person named Ricky Riess who was born in Sudbury, Ontario. Based on that they issued a 10-year authorization for me to enter and remain in Canada. That expired, as you can see, on -- in May of 2018.

So at this point, I have absolutely no authorization to remain in Canada, based on what IRCC is saying in here.

Judge:

Sorry. I just want to make sure I understand --

Fox:

Sure.

Judge:

-- because this is an important part of your argument.

So the Immigration, Refugee and Citizenship Canada issued you this letter dated March 27th, 2018, in response to a request under the Privacy Act that you made?

Fox:

Yes, yes.

Judge:

That request was made in order to get some sort of documentary form of evidence to establish that you are actually a U.S. citizen?

Fox:

No, no. Not to get evidence that I'm a U.S. citizen. The request -- well, the request was just for all records --

Judge:

Yeah.

Fox:

-- relating to myself, either as Patrick Fox or as Richard Riess.

Judge:

Okay. Your citizenship --

Fox:

Right, right.

Judge:

-- we'll say. Okay.

Fox:

And I wasn't trying --

Judge:

So then it --

Fox:

-- to lead them one way or the other.

Judge:

So that comes back that Richard Riess -- Riess -- says citizenship, unknown, country of birth, United States, CLPR unknown, gender, male. And so you're pointing to that to say that that's proof that you are a U. S. citizen?

Fox:

Well, for the purposes of this proceeding, and for the purposes of probation, it's not a question of whether or not I'm a U.S. citizen, it's only a question of whether or not I'm a Canadian citizen. Now, which country --

Judge:

Okay.

Fox:

-- I am a citizen of is completely irrelevant. It's only relevant whether or not I'm a Canadian citizen.

Judge:

Okay, so does this say you're not a Canadian citizen anywhere?

Fox:

Well, no, it doesn't explicitly state I'm not a Canadian citizen. However, if a person is born outside of Canada, then they would need to apply for a Certificate of Citizenship. The fact that I've -- there's no record of me ever doing so would mean the implication would be that I have no status in Canada.

Judge:

Well, what do I do -- and I'm -- I'm asking you this just -- again, these are -- these are inquiries, just so I --

Fox:

Yeah.

Judge:

-- understand this, because this is an important part of your argument. Firstly, what is FOSS, F-O-S-S?

Fox:

That stands for Field Operation Support System.

Judge:

Okay. UCI, what is that?

Fox:

That's Unique Client Identifier. It's a --

Judge:

Okay.

Fox:

-- number that uniquely identifies each person in IRCC's system, and that's actually going to be relevant when we get to this social assistance document here.

Judge:

Okay. It says, citizenship unknown, country of birth, United States of America. What is CLPR?

Fox:

Country of Last Permanent Residence.

Judge:

Once again, unknown. Okay. So then we flip the page. Nothing there.

And then, we get to the last page, non- computer-based entry. Richard Riess. The same UCI, and it says, Canadian citizen, that this was created May 21st, 2008, expiry 2018, so a 10-year period. Remarks, NCB, what's that?

Fox:

NCB is non-computer-based.

Judge:

Created for NCMS. What's NCMS?

Fox:

I can't recall what that acronym stands for, sorry.

Judge:

All right. Created for some form of entry. Received info that -- I'll say Riess, was detained by U.S. Department of Homeland Security --

Fox:

Yes.

Judge:

-- and claiming to be born in U.S. but had Canadian passport showing born in Canada. But how do Canadian -- did you have a Canadian -- does --

Fox:

Um --

Judge:

-- does this refer to an incident that you personally were in --

Fox:

In the --

Judge:

-- involved in?

Fox:

In the 1990s I did apply for, based on false pretences, a Canadian passport. A passport was issued. IRCC later determined that I was not the person named on the passport. And I have further evidence from IRCC as well, recordings of conversations with them, which are publicly accessible on the website as well, where we talk about the issuance of that passport and such.

Judge:

So the Canadian -- but he had a Canadian passport, showing born in Canada, was able to conclude that he was, in fact, born in Sudbury, Ontario, and passport was legitimately issued?

Fox:

Yes.

Judge:

Okay. So that doesn't quite square up with what you just said, which was the passport was -- was fraudulently obtained --

Fox:

Right.

Judge:

-- and that that fraud was ultimately detected and the passport was taken?

Fox:

Um -- well, the passport was eventually lost.

Judge:

Okay.

Fox:

This is -- this is going back 22, 23 years.

At the time that this remark was made in the FOSS system, back in 2008, it hadn't been determined at that point that the passport was fraudulently issued. It was -- what are we, in 2019 -- 2018 or 2019 is when IRCC determined that it was inappropriately issued.

Judge:

Fraudulently issued. Let's call a spade a spade.

Fox:

Okay.

Judge:

Okay.

Fox:

Oh, also though, I want to point out that the non-computer-based entry here -- these are just remarks, that's not an official record. The official record is what's printed on the -- the third page where it says, country of birth, United States. Now, if they had actually determined that I was born in Canada, then I would have to believe that they would have updated the country of birth in the official record.

Judge:

Okay. So, you've handed that up and I -- and obviously we've gone through it in some detail.

All right, what's next?

Fox:

May I ask that that be admitted as an exhibit?

Judge:

Yeah, we can do that. Any objection?

Tomasson:

No, Your Honour. Do you want to keep your copy and I'll hand up this as an --

Judge:

Yeah, I do --

Tomasson:

-- exhibit.

Judge:

-- want to keep my copy. Thank you. So that will be Exhibit 7, I believe.

Clerk:

Exhibit 6, Your Honour.

Judge:

Exhibit 6. Was the -- the order that we just marked, that was Exhibit 5?

Clerk:

That's correct, Your Honour.

Judge:

Thank you.

Fox:

So the Crown asserts that I was the person born Ricky Riess or Richard Riess in Sudbury, Ontario, but to date, the Crown has produced absolutely no direct or physical evidence to support that whatsoever.

And in fact, Mr. Myhre, the Crown at the trial, submitted as Exhibit 1, a copy of my Florida birth certificate, which I would say clearly refutes their claim that I was born in Sudbury, Ontario. Unfortunately, I don't have a copy of that on hand, but it is in the court's records.

And earlier the Crown also made numerous references to what she was referring to as my Canadian passport. However, I'd like to point out that there is no such Canadian passport. Many years ago a passport was issued. It was lost many, many years ago back in the 90s, and there is no actual passport at this point, whether it's Canadian or American.

Oh, another -- another very significant issue or point on this issue of my citizenship is Mr. Myhre had sent me an email back in, I think it was February, where he had forwarded an email conversation that he had had with Steve Riess, who is Ricky Riess' -- Ricky Riess being the person from Sudbury, Ontario, who admittedly I had assumed his identity back in the early 90s and lived under that name for many years. But Mr. Myhre had had a conversation with Steve Riess, and Steve Riess had offered to provide a DNA sample to prove whether or not he is my father.

As so on as Mr. Myhre informed me about that I told him, that's excellent, I would love to proceed with that, because I really want to clear up this issue about whether or not I'm that person. Mr. Myhre immediately then backed down from that and said, oh, we're not going to proceed with that because we have this other evidence. He said that unless the court ordered him to, he was not going to pursue that.

So at the March 14th hearing, I had asked the court to order the Crown to request DNA samples from Steve Riess and from a Peggy Sampogna [phonetic] who is Ricky Riess' mother. The court immediately denied that request, said that's not going to happen, it's not relevant to these matters, which strikes me as very peculiar because it seems that my citizenship is very relevant to these conditions that we're talking about now, about leaving Canada.

Now, certainly, moving forward, not with the bail hearing, but certainly moving forward with the probation violation hearings, obviously I'm going to formally pursue those DNA tests because that will certainly help to prove whether or not I am Ricky Riess from Ontario.

Judge:

All right. Well, I got to ask you, why did you assume Ricky Riess' identity in the 90s?

Fox:

I ran away from home very young and my parents kept finding me. I wanted to be able to move on with my life without my parents or family being able to find me, so I changed my name to Richard Riess.

Now, under California law, there's two ways you can change your name. There's the formal, where you go to court and request it, and then there's what's called a common law name change where you just assume a name. So in, I think it was '92, maybe '93, I had assumed the name Richard Riess. I chose that name because I knew that there was a person with that name with the same date of birth.

Judge:

Okay.

Fox:

And the reason I chose a foreign national is because if I had assumed the name of another U.S. citizen, eventually there would be some overlap in tax information and eventually you would get caught. If you change your name to match that of a foreign national, obviously there's not going to be any kind of duplicate.

Judge:

Okay.

Fox:

And I do admit that it was wrong to have done so, but it was -- it was a long time ago.

Judge:

I have one other question before you leave the topic of citizenship.

Fox:

Sure.

Judge:

So let me know when you're transitioning to your next topic.

Fox:

Okay. I think that the DNA issue that I just discussed, I think that was the last thing I was going to mention on that, but let me just doublecheck my notes.

Oh, okay. I guess the one last thing that I do want to point out, how the citizenship issue relates to the probation conditions. If I'm not a Canadian citizen, but I'm not allowed to leave British Columbia -- well, no, I think I already covered that essentially, about the being homeless and having no way to support myself.

Okay. I would say then, if that is the case, then my decision to leave -- well, to leave Canada, not just British Columbia, was not so that I could evade the probation conditions. It would have been purely out of necessity, since remaining here, I can't possibly support myself, I can't get healthcare, I can't get social assistance or anything else.

And so, the reason I waited until after the March 14th hearing is I was hoping that the court would remove that restriction, and then I would be able to leave legally without violating the probation condition.

The court didn't, and then it seemed to me at that point either I look forward to spending the next two years and nine months moving from homeless shelter to homeless shelter, wondering whether or not I'll be able to eat tomorrow, or take my chances and go back to the U.S.

Judge:

Did these arguments that you're making before me today, were those ones that you made in front of Madam Justice Holmes in March?

Fox:

Oh, yes. Also --

Judge:

So this is a -- this is sort of a repeat of what you placed in front of her?

Fox:

Yes. Yes.

Judge:

Okay.

Fox:

I mean I didn't --

Judge:

Okay.

Fox:

-- discuss them at such length as this because she was already familiar with the issues.

In the -- oh, yes. In the sentencing order, Exhibit 3, that was provided to you earlier --

Judge:

Mm-hmm.

Fox:

-- you will notice in paragraph 120, at the time of sentencing I brought this issue up to Justice Holmes, the fact that I'm not a Canadian citizen and I have no status, and that imposing these conditions is going to put me in a position where the moment I'm released from custody I'm immediately in violation of the immigration laws.

Judge:

Sorry, what paragraph?

Fox:

Oh, 120, I'm sorry.

Judge:

Okay.

Fox:

And so, it puts me in a position where I have to choose between violating the immigration laws or violating probation. But either way, I'm breaking one or the other. And the issue was not addressed at that point. It was decided it we be addressed after the incarceration was completed and the probation started.

Judge:

Let me ask you this.

Fox:

Yes.

Judge:

This -- firstly, who's Movant?

Fox:

I'm sorry?

Judge:

Movant? Does that --

Fox:

Is it --

Tomasson:

Oh, that's just a reference in court in the States in terms of defendant.

Judge:

Movant is --

Fox:

Oh --

Judge:

-- the term -- okay, that's -- you learn something each day.

Fox:

I believe it's --

Judge:

Yeah.

Fox:

-- Movant. The party which is --

Judge:

Movant.

Tomasson:

If you look --

Fox:

-- somebody in the motion --

Tomasson:

-- on the bottom of the --

Judge:

Yeah. No, I see Defendant/Movant. I just -- I hadn't seen that expression in my 30 years of law. Okay.

Anyway, let's go back to that for a second. So, one of the convictions that you sustained was false claim of citizenship.

Fox:

Indeed. And every time that I --

Judge:

This was a claim of U.S. citizenship.

Fox:

In the Immigration Court I clearly stated that I am a United States citizen by virtue of being born in the United States.

On May 5th, 2018, the Immigration judge told Homeland Security that unless they have some proof that I'm an alien he's going to dismiss the case at the next hearing. That same day, my deportation officer, who works for ICE, contacted the Toronto Police because Ricky Riess had been arrested, I think it was 1991 or '92 in Toronto.

The Toronto Police sent the mugshot and the fingerprints of that person, of Ricky Riess to ICE. ICE saw that it clearly was not me, so then they charged me with perjury and false claim of U.S. citizenship, otherwise the case would have been dismissed at the next hearing.

Um --

Judge:

Okay.

Fox:

-- I fought that case, had a court- appointed lawyer. He did absolutely nothing. I was found guilty.

And then the Immigration Court later issued an order of removal, based solely on that conviction, not on any evidence that I was actually not a U.S. citizen.

Now, the many times that I've gone back to the U.S. since then, sometimes Homeland Security pulls me aside, they send me to secondary, they do further investigation. Initially they'll say, oh, we're charging you with illegal re-entry, false claim of U.S. citizenship etc. etc. They do the investigation, they drop all the charges and then they either let me go or they try to coordinate with the RCMP that I be sent back here.

The two most recent times, in June 2016, and then just last week, what they did was they coordinated with the RCMP to make me, as they called it, a subject of interest, so that the RCMP would request that I be sent back here.

Judge:

All right. Okay, so we've dealt with the citizenship issue.

Fox:

The --

Judge:

No?

Fox:

-- citizenship issue, yes, but I would like to respond to some points that the Crown had made earlier with respect to the social assistance application.

Judge:

Sure.

Fox:

And that also relates to the citizenship issue --

Judge:

Okay.

Fox:

-- and whether or not my remaining in Canada is going to cause me any kind of substantial hardship. May I --

Judge:

Yeah.

Fox:

It's -- the important information is really just on the first --

Judge:

Yeah, no --

Fox:

-- page.

Judge:

-- I'm -- I'm happy --

Fox:

The rest is not --

Judge:

-- happy to receive it.

Fox:

Now --

Judge:

Okay.

Fox:

-- as the Crown had presented it earlier, they presented it as I had told Social Assistance that I'm a United States citizen and that my application was denied based on that. There's actually a little bit more to it as you'll see in here.

Social Assistance contacted IRCC and gave them the information that I had provided. Now, I had provided Social Assistance both the names, Patrick Fox and Richard Riess, as well as that UCI number that you had seen in the IRCC document.

IRCC then investigated and they responded to Social Assistance one, two -- the third paragraph in here it says [as read in]:

IRCC stated with the information provided we have searched our records and found no indication that this person has been granted or issued a Certificate of Citizenship or Naturalization.

So it wasn't based just on me telling Social Assistance that I'm not a Canadian citizen.

And then, in the last paragraph, right above where it says "attachments" Social Assistance writes:

No information has been submitted to indicate you meet any of the criteria above. You are not a Canadian citizen, an authorized permanent resident, or a convention refugee. You are not in Canada on a temporary resident permit.

Etc., etc.

So, based on that it's quite clear that I'm not going to be eligible for Social Assistance, but not because I told them that I'm not a Canadian citizen, it's because they contacted IRCC, verified the information I provided them, and IRCC said that, no, there is no Certificate of Citizenship, which would include a birth certificate, for this person. There is nothing to indicate that I had any status in Canada whatsoever.

That again puts me then in a position where I'm not allowed to leave Canada, but I'm not allowed to support myself. I can't get Social Assistance, I can't get medical care or MSP it's called up here.

IRCC is not going to issue me any kind of temporary status or a permanent resident status, first of all because I'm inadmissible due to this criminal conviction. And second, because obviously the conviction from the United States, the perjury conviction, both make me inadmissible to Canada.

So again, it puts me in a situation where I have to decide, do I violate probation, or do I stay here and starve to death on the streets of Vancouver while at the same time breaking the Immigration laws.

And that's all I would have to say about the citizenship issue.

I would request that this document -- and I don't know that we need to attach the entire document, but really it's just the first two pages are the important part. I would request that that be admitted as an exhibit.

Judge:

Ms. Tomasson, any objection to just the first two pages being admitted?

Tomasson:

I think the -- the rest of it is the actual initial application, so --

Fox:

Oh --

Tomasson:

-- I think the whole document should go in, Your Honour --

Judge:

Sure.

Tomasson:

-- because the first two pages refer to what was --

Fox:

Sure.

Judge:

Shall -- shall we do that, Mr. Fox?

Fox:

Yeah, I have no objection.

Judge:

We'll just mark the whole thing. Sure.

Tomasson:

And again, I'll hand Madam Clerk a copy.

Judge:

That's Exhibit 7.

Fox:

And I do have documents here from CBSA as well, but they're essentially the same documents that IRCC provided, showing that I was born in the United States and that I have no status in Canada, so I don't -- I don't think that that would really be necessary. It would be redundant.

Judge:

Anything else?

Fox:

Now, I would -- oh, okay, I already told about the Florida birth certificate.

I would like to point out, at the hearing on the 14th, I told Justice Holmes that in my conversations with CBSA, CBSA had stated to me that while they're not going to come after me, due to my lack of status in Canada, if I turn myself in to one of their offices, or any point of entry, that they will either remove me or deny me entry into Canada.

So, I had informed Justice Holmes about that at that hearing, and I told her that regardless of what the court decided about removing that condition or not, within the next week I would intend to turn myself into CBSA, which would result in me being removed from -- from Canada.

And in fact, on the 15th, when I went to Peace Arch Park, I did turn myself in to CBSA, and I checked with CBSA first to make sure that their office was not within 100 metres of the U.S. border, and they assured me that no, it's closer to 300 or so metres from the border. And then it was only after I turned myself in to CBSA that I then proceeded over to turn myself into CBP on the U.S. side.

So I was not trying to sneak around, I was not trying to flee or escape anything. I was very clear with the court, with CBSA, even with the probation officer that morning. I told him that within --

Judge:

So --

Fox:

Sorry, go ahead.

Judge:

No, go ahead, go ahead.

Fox:

When I reported for probation on the morning of the 15th, I told the probation officer that by Wednesday at the absolute latest, Wednesday of the coming week, I have every intention of turning myself into CBSA resulting in my removal from Canada.

The probation officer did inform me that he had heard that the RCMP was investigating something about a copy of the website being on line, but I would think that that would have absolutely nothing to do with my decision to -- to leave Canada. My decision to leave Canada had a lot more to do with being able to feed myself and support myself and get back to my career as a software engineer rather than living in homeless shelters.

I believe one of the conditions that I'm charged with violating right now has something to l do with failing to report on March 19th?

Judge:

Yeah, that's -- that's correct.

Fox:

My response to that would be I was in Homeland Security custody and had absolutely no way to report. It could be argued that me being in Homeland Security custody was the result of my own actions, but regardless of how I came to be in Homeland Security custody on March 19th, I was, and therefore was physically incapable of reporting. So again, there was no bad faith, I believe, on my part.

Now, the Crown had mentioned -- the Crown had made reference earlier to a copy of the website going offline while I was in custody and then corning back on line when I was released - a copy of the original website, not the -- the new version of it. That's actually incorrect. That copy that she's referring to was generated by an organization called the Internet Archive, a non- profit organization in the United States based in San Francisco.

That has been online since I believe it was June 2016. That has absolutely nothing to do with me. I have no influence over the Internet Archive, and what they choose to archive, that's -- that's their business. But that has not been offline at all since June 2016.

Judge:

Sorry, is this the -- what I'll call website number 1 --

Fox:

Uh --

Judge:

-- that's been referred to as website -- that has not been offline?

Fox:

That is correct, yes, because -- well, okay, there's the original website, which was with the hosting provider that I was hosting, that went offline in January 2018 because the hosting plan wasn't renewed. But there was a copy of that that was made by the Internet Archive.

What the Crown was saying went online after I was released in December, the Crown, I believe, is referring to that cached copy. That cached copy is what hasn't been offline. That's been there the whole time.

Judge:

So the cached copy remains online?

Fox:

Right. But as I say, that has absolutely nothing to do with me. That' s a non-profit organization in San Francisco, and I have no control over what they decide to cache.

With respect to the disclosure material that found its way onto the new website, in the order which was provided there is an exemption for any material that is received from other sources, and what is on the website, on the new website, is -- was not received from Crown as disclosure material. It was received from other sources.

Judge:

Well, what is it? Is it Reports to Crown Counsel, police --

Fox:

Yes, all the RTCCs --

Judge:

So, what other sources, or do you know?

Fox:

I cannot answer that at this time.

Judge:

Is that because you don't want to answer it, or you can't? And -- and I'm not --

Fox:

It's --

Judge:

-- look at, I won't force you, but just --

Fox:

I'll -- I'll be honest, it's because I don't want to because I don't want to -- I don't want to say who in either the RCMP, or the Crown or the Ministry of Justice would have assisted me in obtaining that material.

But I can tell you that some of the material that is on the website, the Crown never provided, such as the audio recordings of the interview with the RCMP and Capuano where she's laughing and joking with them.

So the fact that that is on the website, pretty clearly shows that it wasn't material that was received from -- from the Crown because they never provided me that.

Judge:

Sorry, they never provided you with the audio of the interviews with the complainant?

Fox:

Of that one particular interview where the complainant was laughing and joking with the RCMP --

Judge:

Okay.

Fox:

-- about the same stuff she was crying about.

Judge:

Okay.

Fox:

So again, I don't think that there was any -- like I didn't violate any order by doing anything with the material, because it wasn't material that was covered by this order. It was received from other sources.

With respect to the police having my tablet and my phone, hoping to find some incriminating evidence on there, they don't need a warrant for that. I will happily give them access to those devices.

Judge:

Hang on one sec.

Fox:

Sure.

Judge:

So if I understand what you're saying about website 2, you're -- are you -- I have to tread lightly because this is where if you had counsel it would be helpful.

Fox:

Mmm.

Judge:

Let me just ask you this. Your defence to not having violated the order of Justice Burgess that disclosure must not be broadcast, disclosure received from Crown, you're saying it wasn't received from Crown?

Fox:

I'm saying it wasn't received from Crown as part of the disclosure --

Judge:

Disclosure.

Fox:

-- in the case.

Judge:

But you're not denying at this point that you had something to do with it being on the website and broadcast?

Fox:

I fully admit that all of the content on the new website was created by me. I don't admit, however, that I published that.

Judge:

This is where --

Fox:

So for -- for example --

Judge:

This -- you --

Fox:

I -- I --

Judge:

-- know, I appreciate --

Fox:

Okay.

Judge:

-- your honesty. Do you want -- do you --

Fox:

The probation --

Judge:

This is where things get sticky --

Fox:

Right.

Judge:

-- because there's an investigation going on right now and what --

Fox:

And I'll fully cooperate with that investigation.

Judge:

Well, you may have just advanced the investigation with your last answer, but --

Fox:

Well, the probation condition prohibits me from publishing, disseminating or distributing the information. There's nothing in the probation conditions that prohibit me from continuing to create or maintain a version of the website on my own computer, as long as I don't publish, disseminate or distribute that information.

And even still --

Judge:

You know --

Fox:

-- even if I were to admit that, I would love, like I said earlier, to have another trial for criminal harassment because the mistakes that were made at the first trial and all the collusion, would definitely not happen a second time.

Judge:

See, one -- one of the things I need to decide, as I mentioned to you, is, is there a substantial likelihood of you committing an offence if you were to be released --

Fox:

Right.

Judge:

-- from custody and -- and with respect to the harm that may cause. So it's in that vein that I ask the next question. Why? Why have website number 2? Why put this stuff on there?

Fox:

I can tell you that. In fact, I made a note on this paper to make sure that I didn't forget to mention this --

Judge:

Okay, good, I'm glad --

Fox:

-- because people keep --

Judge:

-- I've assisted you.

Fox:

-- asking me why, and why don't I just put it behind me and move on.

Judge:

I'm not --

Fox:

She took my child away. She took steps to get me deported from the country so she could get custody of our child, a child she abandoned, a child I raised by myself. And then, once I was deported, I lost custody, and then she did everything she could to make it impossible for me to keep any kind of contact with him. I have not had any contact with my son since May 26th of 2016. And for that reason, I will never forgive her, and I will never stop.

And when the probation is finished in three years, and I return to the United States or wherever I go, everything will continue.

Now, I'd also like to point out though, the second website is online right now, has a huge amount of incriminating evidence and proof that she committed so much perjury and proof of all this collusion between Lagemaat and Myhre, whether I am in jail, whether I am denied bail, or I am released, isn't going to change that. It's already there, it's on the internet, and...

Judge:

Hang on one second, Mr. Fox. I just want to gather my thoughts for a moment.

Fox:

Sure. Should I sit, or --

Judge:

You can -- you can --

Fox:

Sure.

Judge:

-- remain standing. I'm just -- I'm just making notes. I just want to jot down a thought here, hold on.

Fox:

May -- may I point out one more thing though about the website, or make one declaration about it, and this even was proven somewhat at the trial. Every single word on the website is true. There is absolutely no defamation; there are no false statements against Capuano. The Crown never even attempted to claim that any of the statements were false during the trial.

Judge:

So would I be accurate -- actually, never mind, never mind.

Fox:

Oh. Well, you can ask.

Judge:

That's -- that's okay. No, I think -- I think you've answered the question I was going to ask.

Fox:

The Crown also stated earlier that Ms. Capuano had taken numerous steps to get the website taken down and that was also an issue that came up during the trial and the sentencing.

But every effort that Ms. Capuano ever took to get the website taken down was very sideways, it was very collateral. There were things that she could have done that could have gotten the website taken down very easily. Once I was in custody, she could have filed a complaint with the hosting provider.

She always did things that would be enough to make it look like she was doing something, but not enough to actually get it taken down. For example, she would file a complaint, but with the wrong service provider. And then when it was brought to her attention, she wouldn't refile the complaint with the -- with the correct one.

So I personally don't believe that Ms. Capuano has any interest in having the website taken down, because I believe that she prefers the attention that she gets with the website being up.

Oh, there was -- oh, where'd it go? The Crown had mentioned earlier also that when I was speaking with the RCMP last week, they had asked me when I decided to return to the United States and the Crown had said that I said that as soon as I was sentenced.

There was more to my response than that though. What I had told the RCMP, and of course it's all in video and the audio, so it's all provable, was that even -- well, certainly at the point of the sentencing I knew that I was going to be returning to the United States, but even before that, but my original intention was that I was going to return to the United States as soon as the probation conditions were vacated.

Now, I assumed the appeal would proceed and LS the probation would be vacated once the appeal was granted.

When I began to realize that the appeal wasn't going to proceed because [indiscernible] and the LSS applications were denied, and I don't have $2,000 for the transcripts, I then began to realize that I'm probably going to be stuck here for three years and my intention at that point was that, yes, I'm going to return to the United States once the probation is finished, and that's clearly in the RCMP interview.

So it's not that I was -- I didn't tell the RCMP that I was intending to return to the United States immediately, because that would violate the probation.

Judge:

But then, when you didn't get your way in front of Justice Holmes, that's when you decided you were going to head to the States.

Fox:

Well, I wouldn't phrase is as when I didn't get my way; I would phrase it as --

Judge:

I don't mean that in a derogatory way.

Fox:

Okay.

Judge:

I mean, I'm just speaking in plain language.

Fox:

Right. I see it -- I saw it then, and I still see it now, as purely a matter of necessity. Just as I had said earlier --

Judge:

Yeah, I --

Fox:

-- what is the point in releasing me? You might as well just keep me in jail until the probation is done.

Judge:

Right. Okay, I've got that argument.

Fox:

And, I guess that's it. Those are my submissions.

Judge:

Ms. Tomasson, anything in reply?

Tomasson:

No, thank you, Your Honour.

Judge:

Did you -- who was -- were you in front of Justice Holmes?

Tomasson:

I was not. It was the original trial counsel, Mr. Myhre, but I have spoken to him about those proceedings. I may be able to answer a question if --

Judge:

Well, I'm just wondering, Mr. Fox had said that he made these same arguments in front of Justice Holmes.

Tomasson:

He did --

Judge:

What was --

Tomasson:

-- as I understand it.

Judge:

What was Justice Holmes' response, other than denying the application?

Tomasson:

Her response was that it -- and this is a quote, that he appeared to be trying to manipulate her in his submissions because he also brought audio recordings to the court that he played where he had conversations with people at the --

Fox:

IRCC.

Tomasson:

-- IRCC --

Fox:

And CBSA.

Tomasson:

-- and CBSA, in which he said to them, "I'm an American citizen so what's my status in Canada?" And they explained what his status was, and she said that by framing his questions in the manner that he did, without saying I -- I could be a Canadian citizen, but I think I'm an American citizen or something like that, but their answers were premised on what he told them, and that she couldn't take their answers as establishing that he was an American citizen, if -- if that makes sense. And so, she said that she disregarded those documents as well as the recordings he -- he tendered.

Before the court today he also has not tendered documents that I provided him today that include copies of his Canadian passports.

Judge:

Sorry, the documents include copies of the Canadian passport?

Tomasson:

Yes, but he has chosen not to tender those.

Fox:

Um, first I'd like to respond with respect to those audio recordings of those telephone calls. In both of the telephone calls I provided both agencies the UCI number. So they went in the computer, they looked up where I was. It's not that I called them and said, "I'm a U.S. citizen, do I have any status in Canada?" I answered all of their questions. I provided them the UCI number, so they knew exactly who they were talking to. I strongly disagree with Justice Holmes' claim that I was trying to misrepresent anything.

Also, those recordings of those phone calls are also on the website, and so anybody, including yourself, can go to the website and listen to them for yourselves.

Now, as for these documents here that the Crown is referring to, the purpose of providing these documents to the court and to the Crown is to show that -- because I often wondered why it is that the Canadian Government would allow somebody who's not a Canadian citizen to be deported to Canada, and how ICE was able to get travel documents.

What I got from IRCC were these applications. It shows that either Homeland Security or the Canadian Consulate, forged the applications that I had filled out to obtain those emergency travel documents, and it's right here, clearly in different handwriting and such. That was the purpose of providing these. Now --

Judge:

Sir, when you say "these" what are you -- what --

Fox:

Oh --

Judge:

-- what are "these"?

Fox:

-- these are applications for emergency travel documents.

Judge:

Oh.

Fox:

When a person is being deported, let's say from the United States to Canada, you have to fill out a passport application which is then used to issue an emergency travel document that is used to allow the person to enter the country. And in these cases, as I said, either ICE or the Canadian Consulate modified the information I had put on the emergency travel documents. For example, where it says which country I was born in and I put USA, and they scribbled that out and put Canada on there.

Judge:

Let me ask you this.

Fox:

Sure.

Judge:

And I'm not -- I -- I'm going to deliberate. Quite frankly, I'm going to give my decision this afternoon --

Fox:

Sure.

Judge:

-- just because lunchbreak is at 12:30. But if -- let's say I were to release you, what's your plan?

Fox:

Well, I'll be honest, I haven't even put any thought into that because as I said, I really don't think I'm going to be released. But my plan would be, first I would have to go back to the Belkin House, see if they have any beds there. If not, then I would go back to the Yukon, see if they have any beds there. Then if not, then I would go around to all the different shelters until I find a bed. And I would continue to try to get these conditions removed, and Justice Holmes is likely going to continue to deny those requests. I guess that would be the extent of it.

Judge:

Okay. All right. Well, list en. I appreciate your submissions, thank you very much.

Fox:

Thank you.

Judge:

Ms. Tomasson, it's now 12:15. I need to -- and Mr. Fox, I need to obviously consider the information that you've given to me. This is, as much as you both have the benefit of giving some thought to what you're going to say to the court, I've just received it for the first time, and so I need to process it a bit, and then be able to articulate my decision in a way that is clear, concise and understandable. So obviously that takes a little bit of time.

So why don't we come back, I'm going to suggest we come back at 2:30. I have an engagement after a little bit of lunch hour, and so why don't we come back at 2:30 and I'll have my decision for you, okay?

Fox:

Certainly, and I would say, if you want to take much longer, a few days or so, I have no opposition to that.

Judge:

Okay, I appreciate that, Mr. Fox, thank you. And if I find as I'm putting together my reasons that I could use more time, I'll certainly bear that in mind.

Fox:

Okay.

Judge:

Okay, thanks. Ms. Tomasson, anything else?

Tomasson:

No, thank you, Your Honour.

Judge:

All right, thank you.

Sheriff:

Order in court, all rise.

Judge:

Okay.

Judge:

You can have a seat, Mr. Fox.

Fox:

Before we proceed, could I point out one thing? There was one other issue that I wanted to make a correction on that I overlooked in my notes earlier.

Judge:

Sure.

Fox:

The Crown had said this morning that I had refused to participate in a psych assessment that was required as part of my probation, unless it was recorded. In fact, I did participate in a psych assessment in January, it was recorded, and that recording is on the website.

Judge:

Okay, thank you.

Judge:

Okay.

Tomasson:

Yes, Your Honour, we'll next be dealing with his next appearance, and I'm going to suggest that given his -- him not being represented, that it should be in courtroom 102, rather than courtroom 307.

Judge:

Okay.

Tomasson:

That he be before a judge, rather than a --

Judge:

Sure.

Tomasson:

And so, since he's been detained, I'm wondering if Mr. Fox wants to next appear in person, or by video, and I'm going --

Judge:

Mr. Fox --

Tomasson:

-- to suggest perhaps two days, just so we can put together some disclosure for him. But I have to determine how we're going to do that for him, given his putting it on other systems, so have to put some thought to that.

Judge:

Mr. Fox, would you -- would you prefer to attend by video or in person for subsequent --

Fox:

In --

Judge:

-- court appearances?

Fox:

In person.

Judge:

In person?

Fox:

Yes.

Judge:

Okay. And we'll have you attend in court 102, which is a court where there's al ways a judge presiding, as opposed to a different court where there's a justice of the peace presiding who has limited jurisdiction, okay? Just in case you have any questions or anything needs to be addressed. All right?

Fox:

Yes.

Judge:

And in terms of when you come back to court, would you like to come back in -- what's today, Wednesday. Would you like to come back on Friday, or the beginning of next week, or --

Fox:

I can't imagine that it could make any difference whatsoever to me.

Judge:

Ms. Tomasson, what's convenient from the Crown's standpoint, knowing Mr. Fox will appear in person with respect to disclosure?

Tomasson:

Yes. I'm going to ask for Monday.

Judge:

One day, so --

Tomasson:

Sorry, Monday.

Judge:

Oh, Monday, I'm sorry.

Tomasson:

Monday of next week.

Judge:

So, Mr. Fox, we'll have you return on Monday, April 15th at 9:30 in court 102.

Fox:

Okay.

Judge:

Okay?

Fox:

Before we conclude though, I would like to say with respect to Justice Holmes' Reasons for Sentencing --

Judge:

Yes.

Fox:

-- and I was going to mention this earlier, but then I thought, hmm, I'll let it go. But since it came up in your decision as well --

Judge:

Sure.

Fox:

-- she makes absolutely no reference to the literally mounds and mounds of evidence that I brought at sentencing that proved Capuano was lying at trial and the hundreds of emails that Capuano had sent to me prior to 2014 where she was threatening, and being belligerent, and trying to cause problems. And even Justice Holmes herself admitted that those emails were clearly threatening and clearly relevant, yet in the sentencing there's not a single mention of them. So I just wanted to point that out.

Judge:

Okay. Well listen, I appreciate you mentioning that for the completeness --

Fox:

Sure.

Judge:

-- of the record. All right.

Tomasson:

And if I could just have the documents that were filed today returned from Mr. Fox now.

Fox:

I'm sorry, you want them back from me?

Tomasson:

Yes.

Fox:

Do I not get to keep a copy of them? I mean, don't I --

Judge:

Sorry, these were documents that were filed with the court and these are copies of those documents?

Tomasson:

Yes, the exhibits today.

Judge:

Copies of the exhibits.

Fox:

Right --

Judge:

Why do you want them --

Tomasson:

The concern is where --

Judge:

That they're going to be published.

Tomasson:

-- where they will go at some --

Fox:

But they're -

Tomasson:

-- eventual point when he's released.

Fox:

They're either public documents or documents you got from me anyway. I mean, for example, the --

Judge:

I think that --

Fox:

-- IRCC and Ministry of Social Development documents, clearly I have those; those are my documents. The probation order, well, I have that too obviously. This -- I have no idea what this is, but it's obviously something that's public record now, some case law. CBSA documents that you got from me. These IRCC documents, you want those back? The documents that you printed for me, that you got from me.

Judge:

I'm kind of -- my -- just thinking out loud, I understand your concern.

Fox:

I mean, if they were filed with the court, aren't --

Judge:

They were --

Fox:

-- they public record anyway?

Tomasson:

They're filed as exhibits at this point, Your Honour --

Judge:

Yeah.

Tomasson:

-- so he would have to make an application to get them from the court record. They may --

Judge:

Or copies of exhibits for his assistance in conducting the bail hearing.

Tomasson:

Yes.

Fox:

Except for the probation order, which I already have, the Ministry of Social Development document which I already have, the IRCC document which I already have. I'm sorry, I'm not clear why you're concerned that I would publish documents that I already have, and have published documents that are mine anyway.

Judge:

Sorry, that you have published?

Fox:

Oh, yes. These IRCC documents, they're all public. This Ministry of Social Development document, it's on the website.

Judge:

Okay, so those two --

Fox:

Everything is on the website.

Judge:

Which documents in particular are you concerned about, Ms. Tomasson?

Fox:

I mean, really, I'd like to keep the Immigration documents because I'll need those for other hearings I have coming up soon. Oh, and that Ministry of Social Development one, that's kind of critical for hearings I have coming up.

Tomasson:

At this point, Your Honour, the only thing that may not be currently on the website would be the disclosure order.

Fox:

I don't care about that. You can have that.

Tomasson:

Which is Exhibit 5.

Judge:

Take the disclosure order.

Tomasson:

Thank you, Your Honour.

Judge:

All right, thank you. All right, thanks, Mr. Fox.

Fox:

Thank you.

Sheriff:

Order in court.

Clerk:

[Inaudible].

Judge:

Pardon me?

Clerk:

[Inaudible].

Judge:

Thanks a lot.

Tomasson:

Oh, Your Honour, I'm sorry.

Judge:

Yeah.

Tomasson:

What we haven't addressed is the -- the request by Mr. Fox that the ban on publication -

Fox:

Oh, yes.

Judge:

All right.

Tomasson:

I -- I -- just so that we can address it, I --

Judge:

I'm going to --

Tomasson:

-- we --

Judge:

I'm going to leave the ban on publication in place while there's an ongoing investigation for which you provided information to the court that's actually germane to that.

Fox:

Really?

Judge:

Yeah.

Fox:

Okay.

Judge:

Okay? Thank you.

Tomasson:

Thank you, Your Honour.

Sheriff:

Order in court.

Transcript of Bail Hearing (2019-04-10)

Synopsis

INDEX

EXHIBITS

RULINGS