Transcript of Subpoena Hearing (2019-11-19)
PDFBCSC File No. 30630
244069-5-BC
Vancouver Registry
In the Provincial Court of British Columbia
(BEFORE THE HONOURABLE JUDGE ST. PIERRE)
Vancouver, B.C.
November 19, 2019
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT APPLICATIONS
244069-5-BC
Vancouver Registry
In the Provincial Court of British Columbia
(BEFORE THE HONOURABLE JUDGE ST. PIERRE)
Vancouver, B.C.
November 19, 2019
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT APPLICATIONS
Crown Counsel: Bernie Wolfe
Rod Garson
Rod Garson
Appearing on his own behalf: Patrick Fox
INDEX
EXHIBITS
- Nil
RULINGS
Vancouver, B.C.
November 19, 2019
Judge:
Okay. Mr. Fox is here. Okay. Thanks.
Wolfe:
Wolfe, initial B., for the provincial Crown, Your Honour. Calling the Fox matter before Your Honour.
Judge:
Thank you.
Wolfe:
And I'm assisted with my colleague, Mr. Garson.
Judge:
Mr. Garson.
Garson:
Yes. Rod Garson. Garson, initial R.
Judge:
Thank you, Mr. Garson. I had received some materials from you.
Wolfe:
We were unable to transmit it to Mr. Fox. I had asked Pretrial if we could courier that out to Mr. Fox yesterday, but I did not receive a response from Pretrial. But we're here, and so I can give Mr. Fox copies of the materials which were set up to chambers and upon which Crown would rely. Today's appearance really is -- I'll leave that to the sheriff to deal with the staples and the other matters -- predicated on Mr. Fox sending Crown a letter dated October the 31st, and I will simply read the first paragraphs. It's addressed to me. [As read in]:
Please accept this as whatever notice I may be required to provide prior to applying for a subpoena against Mark Myhre. I will try to get into the law library to try and review whatever practice/directive he referred to in court on October 29th. May you please schedule a hearing for the various subpoena applications I intend to make. I assume the hearing will have to be at least 30 days in the future since, as you say, the practice directive requires I provide Myhre 30 days' notice.
I would have requested scheduling a subpoena hearing previously; however, at the October 8th, 2019 hearing the court said, "Let's wait and see what CBSA response to that particular request before we proceed with subpoena applications." Based on that I was under the impression that the purpose of the October 29th conference was to see what CBSA had responded and that based on CBSA's response decide whether or not to subpoena one or more parties from CBSA.
I -- we deal -- we're here for Mr. Fox regarding any applications he might make.
One other thing he raised in the letter was an enlargement of an aerial photograph, Peace Arch area. I have spliced together two Google maps to try and enlarge the area which he referred to. So I've made this for his benefit.
And I'll just show him, at least, the first handiwork I've made to see whether or not that's going to be a sufficient enlargement for him.
Fox:
Yes, I believe that that would be sufficient. This strip along here is my primary interest.
Wolfe:
Okay. So I'll bring this up to the continuation and we'll deal with it that way.
Judge:
Okay.
Wolfe:
So that takes care of that issue.
Judge:
All right.
Wolfe:
I understand that Mr. DARS -- I'm sorry, Mr. Fox wishes to make some sort of application for a DARS recording. That, strictly speaking, is a matter, one would think, between the court registry and Mr. Fox. I will, if I may, in a presumptive fashion say that there is no listening capability for Mr. Fox to attend this registry --
Judge:
What kind of hearing was the DARS request for?
Wolfe:
Well, I understood it'd be the trial. Am I correct on that?
Judge:
What do you need the -- what hearing are you wanting to listen to?
Fox:
It would be during the sentencing submissions in the index matter. I don't know the exact date of it, though. I would need to review them to find -- there were one or more statements made by Mr. Myhre during the sentencing submissions that I think are going to become critical.
What I would also like --
Judge:
Well, you've got -- you've got to be more specific than that. The -- I mean, I could order a transcript, but the -- it needs to be relevant or probative of something.
Fox:
Well, I think it would be more expeditious to just have the audio recordings, though, because transcripts would cost a lot more and take longer, whereas the audio recordings could be obtained instantaneously.
Wolfe:
Well, if -- if it's the index offence, are we even in the right venue because -- forum because --
Judge:
That's why I'm trying to find out --
Fox:
Correct.
Judge:
-- the relevance.
Fox:
We're not.
Judge:
What -- well, we're not in the right venue, but --
Fox:
Right.
Judge:
The -- what would be the relevance of that recording?
Fox:
Well, first, before we go into that let me say with respect to this hearing today --
Judge:
Yeah.
Fox:
-- I had no notice or knowledge of it until this morning.
Judge:
No notice. You requested the hearing, didn't you?
Fox:
Well, as I'd said in the letter, though, I was under the impression that there would be at least a 30-day period before the hearing. I didn't think it would be coming --
Judge:
Our trial starts December 11th.
Fox:
I understand that at this point we're adjourned or continuing at that time.
Judge:
Mm-hmm. I mean -- yeah, it continues on December 11th. So there's any -- you know, any matters that need to be addressed before then have to be heard before then, I guess, right?
Fox:
Sure.
Judge:
So that's why we're here today, is my understanding.
Fox:
Okay.
Judge:
You --
Fox:
With regards to this material, though.
Judge:
Yeah.
Fox:
I hadn't received this until just now.
Judge:
Yeah.
Wolfe:
We weren't -- as I said, I didn't have a response from Pretrial about it being given to Mr. Fox by courier. I did send an email to the deputy warden asking him to advise Mr. Fox that today's matter -- that a spring order and an application had been set down for today, and I'm assuming that he was advised of today.
Fox:
I was not.
Wolfe:
Well --
Fox:
May I -- may I show him the [indiscernible]?
Wolfe:
Sure.
Fox:
Thank you.
Judge:
Yeah. The -- the materials that I have just simply outline a factual -- some factual history and -- and a short excerpt regarding the principles governing subpoenas. And I'm sure that none of that is particularly controversial, I don't imagine. And then the book just has the probation order in it, a couple of cases.
Fox:
The particular statement that -- or one of -- at least, of the particular statements that I'm interested in that Mr. Myhre had made was during the sentencing submissions when he had proposed these probation conditions that I not leave British Columbia, et cetera, and I had opposed them based on not having any status in Canada. And I pointed out to the judge it's going to create a situation where the moment I'm released from custody I will be violating the probation because I'll be violating the immigration laws. And then Mr. Myhre had said that if a situation arises where I am removed or ordered to leave Canada that he would not consider that a breach and he would not seek to prosecute me based on that. However, that is exactly what he then did, which led to this case here.
So I think that that would be relevant when I'm giving testimony, perhaps on December 11th, because that further goes to the point of, if nothing else, in my mind I could not think that I'm committing any kind of offence by turning myself into CBSA and then having CBSA deny me admission back into Canada, effectively removing me from the country. But then because he goes and gets a warrant, Homeland Security then brings me back here because of this warrant.
Judge:
No, and I appreciate what your position is going to be if in fact, you know, you -- you elect, as is your right, to testify. I understand that. I mean, we've gone over that several times.
The -- I guess the question is some aspects of your -- of your statement that you just made raise issues of an abuse of process for this particular prosecution that we're -- that we're involved in right now. That's the first I've heard of that issue, abuse of process. But secondary is that if the Crown has established a prima facie case of some kind of breach, then it's your responsibility obviously to establish a lawful excuse for not complying with the probation order and that you'd have to establish that on a balance of probabilities. You have to establish that reasonable excuse. There's no burden on the Crown to disprove some kind of reasonable excuse.
So is -- that leads to the question does any evidence -- proposed evidence that can come from Mr. Myhre support -- either go to the essential elements of the offence that the Crown has to establish or go to the -- to supporting lawful excuse. I haven't heard it yet, but this is your opportunity to -- to tell me.
Fox:
Well, I can't help but to think that Mr. Myhre's statements that he would not prosecute me for a breach if I were to be removed from or ordered to leave Canada and then I did exactly that, but then he prosecuted me anyway. I would think that -- sorry. I'm trying to think how I could say that that would be relevant.
Judge:
Well, there may come a time -- there may come a time when the -- the -- you know, the purported evidence that you're seeking from Mr. Myhre would have some relevance. For instance, if -- if you were to testify about, you know, the -- your intention and your actions in -- on that date in question and the Crown were to -- to allege that, you know, this is some kind of recent fabrication and he's just trying to avoid -- avoid a finding of guilt. Well, you know, maybe evidence that you told somebody your version of the -- of, you know, what was -- what was happening, that might become relevant. But it hasn't -- it hasn't yet got there. It hasn't been established as any kind of probative evidence yet.
And it might, if you were -- again, were to -- were to -- if you were to, you know -- if there was evidence from you that was accepted by the court that there's -- that there was this -- this statement by Crown that they wouldn't prosecute you under -- if certain facts were established, you might have some argument about an abuse of process. But I don't know yet. I mean, we haven't got there yet. None of that evidence is -- there's no -- there's no support for it. There's no -- there's no basis for --
Fox:
So let me ask, then, if I could. Are you suggesting that the appropriate procedure would be for me to testify first and then we could see whether or not that would be relevant, or?
Judge:
Well, I can't tell you that.
Fox:
No, no. No, no. I mean --
Judge:
I mean, the only thing I could tell you is that at this point in the trial it's not the -- the relevance of his evidence has not been -- so far, from your submissions, has not been established.
It's your decision whether you want to testify or not.
Fox:
Oh, yes.
Judge:
In a criminal proceeding you're not -- you're not obligated to.
Fox:
Oh, but I very much am looking forward to testifying.
Judge:
It's going to be your decision.
Fox:
Right.
Judge:
But maybe I should hear from -- I mean, I understand what you're -- part of what you're saying is -- A, you're saying, "Mr. Myhre said he wouldn't prosecute me if I" -- "if I was forcibly removed or if I was found inadmissible to Canada and I had to leave."
Fox:
Correct.
Judge:
And secondly you're saying at some previous occasion you said something to the effect of, "I told him outside of court," or "We had a conversation about my inadmissibility and that I would have to be" -- "that I would be probably forced to leave at some point in time." They're two different -- those are two different things. But I understand that's the basis of what you're asking me to issue a subpoena for. Is that right?
Fox:
That is part of it, yes. There were further discussions as well, some of which occurred in court and so they would be on the record. And so it's going to be very difficult -- it would be very difficult for Mr. Myhre to deny that those conversations occurred because of course they were in court.
Judge:
Yeah. Fair enough.
Fox:
And part of this is going to lead to -- if a situation arises where I am unable to have concrete proof that CBSA denied me admission or that they escorted me to the border and didn't allow me back in, then I'm going to have to -- I'm going to have to show or convince the court that there would have been absolutely no benefit or justification for me to not present myself to CBSA on March 15th. And statements like what Mr. Myhre had said about not prosecuting me if I'm removed, and then of course my statements to the court the day before I left -- before I turned myself into CBSA would contribute to showing that there would've been no benefit for me not to present myself to CBSA.
Judge:
It doesn't enhance your credibility the number of times that you told somebody what your intentions were or what your thought processes were on the issue. You could -- you could have told a hundred people --
Fox:
Right.
Judge:
-- who come to court and said, "Yeah, he told me that," but it doesn't -- it doesn't enhance your --
Fox:
It's -- it's not just my statements and not just me telling them. It's also the court and Mr. Myhre agreeing that well, if I were to do that I wouldn't actually be violating probation. If I were to turn myself into CBSA at the border, as long as it's not within a hundred metres of the border, then technically I'm not violating anything.
Judge:
And you're saying you got that from Mr. Myhre.
Fox:
Well, that exact discussion came up -- and I have the transcripts of that -- the day before when I had that hearing before Justice Holmes the day before I went to the border. And I made it very clear to her that regardless of whatever decision she made on that day my intention was within the next few days to turn myself into CBSA and that they would then remove me.
Judge:
Okay. But again, telling folks what your intention was doesn't establish the later fact that that's what happened. So -- so it doesn't -- it doesn't really -- in fact, it -- if you're seeking it for the purposes of bolstering your credibility, then that's probably an inadmissible purpose for seeking those -- that kind of evidence.
So maybe I should hear because we've got -- I've got a general sense of what your -- what your request is with respect to Mr. Myhre, but is there any other -- is there any other issues? Maybe I should hear from Mr. Garson, who's responding on behalf of Mr. Myhre.
Wolfe:
Could I make some brief comments?
Judge:
Yeah.
Wolfe:
Because Mr. Garson hasn't had the benefit of hearing Mr. Fox over the earlier days when we were in trial or during the course of exchanges between the parties and the court.
I listened carefully to Mr. Fox. He used the word "ordered" to leave Canada. On an earlier occasion he used the term "removed" from Canada. He's charged with failing to report. It's irrelevant. Not only does he change his terminology about whether he was denied or removed or ordered, but his failure to report -- if he wants to say, "I couldn't report because I was in Tacoma," that's bootstrapping, in my submission, because he set it for himself in a reckless or willfully blind -- they -- they --
Judge:
Well, I know that's the Crown's position is that that --
Wolfe:
Sure.
Judge:
-- that would be -- if -- as I understand the position is that if he knew he was going to be removed by presenting himself to Canada Border Services that would be some kind of willful or reckless breach of the -- breach of the --
Wolfe:
No, I'm not saying his removal. He knew whose -- once he presented himself to Obrist [phonetic] he would've been wilfully blind to -- to being detained by American authorities, which is entirely different than being removed.
Judge:
You mean presenting himself on the American side?
Wolfe:
That's correct.
Judge:
Okay. Fair enough.
Wolfe:
That's entirely different.
Judge:
I think Mr. -- what Mr. Fox -- it's more of a nuanced point. He says, "It was the Canadians who forced me out."
Wolfe:
And that, with all due respect, is a complete fiction. And --
Judge:
Well, I know that's your position, but he --
Wolfe:
Right.
Judge:
Obviously he has a different position.
Wolfe:
Well, there's no removal order. You haven't heard anything -- it would be --
Judge:
And we can't debate the merits of that right now. We're in the middle of the trial. To a certain extent they have to be discussed to determine the -- you know, the merits of issuing a subpoena.
Wolfe:
That's right. And there's --
Judge:
It's sort of likely -- likely to be relevant.
Wolfe:
Well, there's no -- there is nothing relevant in it. There is no factual foundation. I would defer to my colleague, Mr. Garson, to take us through the law on this point. But it really is a kind of a legerdemain approach by Mr. Fox to create this appearance of substance, namely whether it was officially induced error or abuse of process or some such in order to say, "Well, then, you see, I went merrily to the border to be deported, expecting to be fully clothed, protected and shielded from prosecution because Myhre said X, Y and Z." That's a story.
Judge:
Well, I mean, I think we can -- we can probably all agree that if -- and I don't know if Mr. Fox is going this far, but if, for instance, the authorities interdicted him and forced him out of the country that that would probably -- if established, could raise reasonable excuse for not reporting. I mean, that's -- that just seems obvious to me. But we haven't even come close to establishing that.
Nor has -- is, Mr. Fox, are you telling me -- have you -- you telling me that Mr. Myhre can lend some kind of evidence towards those issues. I don't hear it. I haven't heard it yet.
Fox:
About whether -- to which issue specifically?
Judge:
About you and your dealings with Canada Border Services.
Fox:
I'm not positive what Mr. Myhre could say in those respects. He has made comments about his dealings with CBSA and IRCC with respect to me. I've later come to find out that some of what he had stated in court was false, and I was able to obtain that through freedom of information requests, but I don't know that that's particularly relevant at this point.
Judge:
Okay.
Fox:
The reason that I was seeking those, I was thinking perhaps I could clarify one point for --
Judge:
Yeah.
Fox:
-- Mr. Wolfe's benefit on the matter of now I'm using the term "ordered" to be removed. I'm actually using Mr. Myhre's terminology when I say "ordered to be removed." That's how he phrased it. He was referring to if IRCC were to order me or instruct me or direct me to leave Canada. So that's why I used different terminology at this point.
Judge:
Okay.
Fox:
But IRCC has not specifically or explicitly told me to leave Canada.
Judge:
No. Fair enough. Okay. So -- so there's Mr. Myhre. That's one subpoena that you'd hoped to have issued. I wonder if you want to -- let's -- should we deal with that one first? I want to give Mr. Garson a chance to --
Fox:
Sure.
Judge:
-- respond to that.
Garson:
Your Honour, if you like, and perhaps even for Mr. Fox's benefit, I'm happy to go through the brief that I've set out, if he hasn't an opportunity to read it. It's very straightforward. I don't believe that whether it's -- in terms of the factual foundation or even the legal principles. I think Your Honour alluded to the fact that the legal principles aren't controversial, and I go so far as to say that neither are the -- is the factual foundation, so if that's -- if Your Honour will allow me, that's simply what I'll do and then I'll address a few of the specific things that Mr. Fox has said vis-àvis the application for the subpoena that he's made for Mr. Myhre.
Judge:
Okay.
SUBMISSIONS FOR CROWN BY MR. GARSON:
Garson:
Your Honour, the factual foundation as set out on the first page in the first few paragraphs is very straightforward. It simply sets out the -- the date that Mr. Fox was convicted of criminal harassment by a jury as well as another firearm offence. He was then sentenced on November the 10th after being -- having been found guilty on June the 28th of 2017 to a three-year term if imprisonment, following which -- he also received a consecutive term of 10 months imprisonment for the firearms charge.
After deducting time served, he received a going forward sentence of 20 and a half months of imprisonment, and the trial judge imposed a three-year probation order to follow his release from that term of imprisonment. And that -- that probation order is attached. It's either at the first tab of the book of documents that has been provided to you and Mr. Fox.
Judge:
Yeah. It's the one, yeah, in question in this.
Garson:
Right. And again, that's obviously central to this particular prosecution.
Judge:
Yeah.
Garson:
Now, Mr. Fox's application is for a subpoena to issue for Mr. Myhre, who of course, as you know, is Crown counsel with the Prosecution Service. He was the trial prosecutor in that --
Judge:
Yeah.
Garson:
-- particular case. Well known, again.
Mr. Fox was released from custody on December the 30th. At that point he became bound by the three-year probation order.
There were two applications made to vary the probation order by Mr. Fox. The first in -- in early January of 2019. It was granted, and it simply allowed him to use the internet for particular purposes.
Judge:
Yeah.
Garson:
But that's -- and again, Mr. Myhre was involved in relation to that application as prosecutor.
The second one, perhaps more materially, is the one where he applied to vary the probation order by removing the term that required him to remain in British Columbia and from going within a certain distance of the U.S. border, again heard by the trial judge. That's dismissed. Mr. Myhre was the prosecutor.
He's now, of course, before the court charged with breaching the terms of the probation order by leaving without written permission, leaving British Columbia, and by being within a hundred metres of the United States border -- both of these alleged to have taken place on March 15th of this year -- and also by failing to report to his probation officer on March the 19th also of 2019.
The principles governing subpoenas are found in s. 698 of the Code, and I've reproduced that in the written argument.
Judge:
I have that.
Garson:
And it's very clear. Where a person -- it says, "Where a person is likely" -- "likely" being the operative word -- "to give material evidence in a proceeding to which this Act applies a subpoena may be issued" -- so it's discretionary -- "in accordance with this part requiring that person to attend to give evidence."
Now, the phrase "likely to give material evidence" is a threshold requirement, and that's clearly established by the cases that I've made reference to in the written argument and that are at Tabs 3, 4 and 5 of the book of documents. Now, materiality, likely to give relevant evidence -- or likely to give material evidence is determined by the facts in issue. It's very clear that the party seeking the subpoena has to establish not possibility of material evidence being provided but rather probability. So the threshold is not just a maybe; it's an "is likely to," i.e. is probable.
And just to very briefly refer Your Honour to the relevant passages, I direct your attention to Tab 3 of the book of documents. This is the Blais case out of the British Columbia Court of Appeal. Relatively recent. It dates from 2008. And at paragraph 20 of that decision --
Judge:
Yeah.
Garson:
-- the court talks about, "What's involved here; what is the threshold?" And in paragraph 20 they set out of course the provision that I've just read. And then they cite from a decision of Mr. Justice Watt, who was then a justice of the Ontario Superior Court, now a member of the Ontario Court of Appeal, in the Baltovitch case, and this is at paragraph 21.
Judge:
Yeah.
Garson:
Where they say he "made some elementary observations, which I respectfully adopt." So this is the British Columbia Court of Appeal adopting this and saying this is the law in the province of British Columbia. And they quote paragraph 58 where Justice Watt said:
Section 698(1) sets the threshold for issuance of the subpoena… The issuer must be satisfied that the proposed witness is likely to give material evidence.
Emphasis by italics in that paragraph.
But the subsection offers no assistance about the manner in which the party requesting the subpoena is to satisfy that threshold for its issuance.
Justice Watt then said at paragraph 59 of that decision:
A final preliminary observation about the issuing authority of section 698(1) is apt. The subsection is cast in permissive terms: The permissive "may" is used, not the imperative "shall." In the result, satisfaction of the statutory threshold does not guarantee issuance of the subpoena.
That is there's a residual discretion, is what he's saying.
He then goes on to cite the Foley case, which again elaborates on the type of inquiry, the standard of inquiry to be made by the justice acting under s. 698(1).
Judge:
Yeah.
Garson:
There has to be exercised -- and I'm just taking the essence of that paragraph -- has to be exercised judiciously if not judicially.
Now, importantly, about halfway through that quoted paragraph the Saskatchewan Court of Appeal Chief Justice Bayda, speaking for that court, says:
He is given discretion in the matter of issuing the subpoena and he should exercise it judiciously if not judicially. The justice may choose not to insist upon evidence on oath but he may want to conduct an oral examination, if only a cursory one, of some person who has knowledge of the circumstances. The extent of such an examination will depend on the circumstances of each situation. One thing however is certain. If he takes no steps whatever to satisfy himself that the person is likely to give material evidence, the justice is abusing his power and his discretion if he issues the subpoena.
Then in the next paragraph of Blais --
Judge:
Yeah. I've been making some inquiries, by the way.
Garson:
Right.
Judge:
Yeah. Okay.
Garson:
Justice Watt then makes the important observation -- this is from paragraph 23 of the Blais case.
Judge:
Yeah.
Garson:
Discussed "likely to give material evidence." This is, again, important. He says:
The statutory terms "is likely to give material evidence" refers to a probability, not a mere possibility or something that exists only in the fevered imaginings of the party seeking the subpoena. Something is likely if it is probable, not merely possible.
So there's a scrutiny that has to be brought to bear to this exercise.
And then skipping down to paragraph 72 of that quotation, Justice Watt said this.
When the issuance of a subpoena is challenged, it is inadequate for the party proposing to call the witness, in this case [it was] the prosecutor, to respond with a mere allegation that the proposed witness can give material evidence. More is required. And that more is to establish that the proposed witness is likely, or said another way, would probably have evidence material to the issues raised to give.
So that's the threshold. Inquiries need to be made to determine if it is in fact probable that the witness will provide material evidence.
Now I turn to paragraph 15 of my written submission where essentially the facts of this case are related to that legal standard.
Now, as I understand it, and I'm advised in -- as I say in paragraph 15, justice of the peace testified that they reviewed the original and amended probation orders with Mr. Fox, that he signed the orders and that they discussed the consequences of breaching the conditions of the orders with Mr. Fox.
Judge:
Yeah. This whole issue is essentially --
Garson:
About the elements --
Judge:
-- the Crown -- the Crown theory and the evidence that's been provided in this case already.
Garson:
Correct. Correct. And it's the Crown's submission with great respect that on this court, there's no basis for it to issue a subpoena to Mr. Myhre in relation to any of that.
Judge:
Yeah.
Garson:
Now, with respect to the issue of the reasonable or lawful excuse, I think Your Honour in discussing this with Mr. Fox touched upon the fundamental point is that there's no evidence before the court. And indeed, based on the evidence that the court has heard there's reason to question whether there's any material evidence that Mr. Myhre can give, absent of course some evidence -- and whether that comes through Mr. Fox deciding, choosing to testify and provide a foundation or to call other evidence to provide a foundation, but absent those foundations being placed before you in the form of sworn testimony, there's simply no foundation for this court to conclude that Mr. Myhre could provide -- is likely to provide, that is can probably provide, anything material to what might be a lawful or reasonable excuse.
Judge:
Yeah.
Garson:
The question of abuse of process was raised. That of course is a separate application.
Judge:
It's separate but it's also -- as far as I can hear, it's also comments that were made on the record and so that the -- the evidence of Mr. Myhre wouldn't be necessary.
Garson:
Wouldn't be required. That's exactly right. In other words, the evidence that might be material, even on its -- at its highest is available from an alternative source than from having Mr. Myhre in court to testify. Because of course it's available either through listening to the DARS recording or obtaining a certified transcript of those court proceedings, and it will be abundantly clear what Mr. Myhre said or did not say.
I note as well that in addressing Your Honour Mr. Fox himself candidly admitted that he didn't believe that Mr. Myhre's discussions, and I think, if I understood him correctly, his understanding, that is Mr. Myhre's understanding, of what the customs and immigration -- immigration authorities or any of these border authorities had and his understanding of what they would do with him was relevant at all. And I think that was, quite honestly, very candid and very telling because it doesn't have any bearing on anything until of course there's some sort of foundation laid for it, and that's absent at this point.
Judge:
Okay.
Garson:
That's the Crown's submission, unless you have any questions.
Judge:
No. Thank you, Mr. Garson. I appreciate it.
The -- yeah, Mr. Fox, do you have any response to that?
SUBMISSIONS ON HIS OWN BEHALF BY THE ACCUSED:
Fox:
I do. There are a couple -- or a few quick points that I would like to make.
First I would like to say I really would've liked to have been able to read these cases beforehand so that I could be better prepared, but --
Judge:
They're -- they stand for a very simple proposition, and it's really -- it's not -- there's no -- there's no controversy about that proposition. The key factor is that the issuing -- the person who's requesting the subpoena has to be able to establish that the witness would probably or likely have material evidence to give. And it's not enough that you -- that you can establish that he might or may have material evidence. You have to go further than that to establish that they probably do.
Fox:
Right. I would like to point out that in the amount of time that the Crown has spent resisting or opposing Mr. Myhre coming and testifying against me, he could have come and testified and moved on.
Judge:
Yeah. But that -- you know what? That's -- I could say that about a thousand applications that take place in this courthouse on a daily basis.
Fox:
Right.
Judge:
But the issue is -- is one of -- is a legal one. And it's not a -- it's not an expedient one or a convenience one. It's because the calling of a Crown prosecutor to testify in proceedings, even if they -- even if they're not the prosecutor on that particular proceedings, is an extraordinary situation. So it has to be carefully scrutinized for the -- for the lawful basis for it.
Fox:
Yes. Well, being that Mr. Myhre was the one that initiated these charges against me, I would think that he would have an interest in seeing that I am prosecuted for it. And based on that, I would think that he would want to come and testify.
Judge:
He's simply an agent of the people.
Fox:
Sure he is.
Judge:
That's what -- that's what they are, the Crown prosecutors. At least that's their -- that's their job, right?
Fox:
That is all I would have to say about it. Thank you.
Judge:
Okay. Thanks, Mr. Fox. I mean, like I indicated, it may -- there may come a point where the landscape will have changed in such a fashion that we have to have another conversation about this, but at this particular point…
[REASONS FOR JUDGMENT RE APPLICATION FOR SUBPOENA]
Judge:
Now, Mr. Fox, did you have another -- is there another application for a subpoena that you were -- I thought I heard something about several others.
Fox:
Yes, there were a few others. A few from CBSA, obviously. The two CBSA officers that I spoke with at the Douglas border crossing, but I'm still working on getting their identities. CBSA is being -- I don't want to say uncooperative. They're beyond uncooperative at this point. Their --
Judge:
What's the response that you've had? You had some written communications with Canada Border Services, including a request for disclosure. Have you received a written response from them?
Fox:
I have. I have received a number of responses to a number of requests, and I'm starting to see a bit of a pattern with what they're doing.
Judge:
And without -- without me having to read the whole things --
Fox:
Yeah.
Judge:
-- what's the gist of their response?
Fox:
The gist of it is they are taking until just before the end of the 30 days that they have to provide the information. Then they sent me a notice saying that they were unable to find the records or the records don't exist, but they include in there verbatim what they put into the computer to search for and I see that they've either put a different name or they've spelled my name incorrectly, et cetera, so then I have to send them another letter saying, oh, well, there's these mistakes that you've made; may you please resubmit the request. And at this point I'm waiting for those.
On some of them I have had -- I've gotten some communication back directly regarding Ms. Pereira [phonetic] from her supervisor. His response was that I need to request the information through their ATIP department, so then I responded to him saying I've already been dealing with the ATIP department over the past few years; I've had numerous communications with them. They've already proven that CBSA has absolutely no evidence that I'm a Canadian citizen, which is what I was requesting from Ms. Pereira about what is the basis of these claims that I'm a Canadian citizen, and that's why I'm contacting her about it. I haven't received a response back to that yet.
Judge:
Okay.
Fox:
I've got requests to CBSA regarding the identities of the officers that were working at the counter that I dealt with on that day. I've received no response to those yet. I have --
Judge:
Well, it might be -- you know, it might be premature to even discuss it since it's only -- it's only November 19th and we've got three -- I guess three weeks or something like that until we're back.
Fox:
Right. That's what I had in mind when I sent the letter to Mr. Wolfe. I assumed that it was going to be a 30-day delay, and so I assumed that this hearing would probably be sometime around early or middle of December.
Judge:
Yeah. Okay. Well, let's deal with that when -- when the time comes. Now, there was -- there was one other thing.
Fox:
I have a very interesting request I've submitted to them here for information from their field office support system logs because any time a person's name is searched by a CBSA officer within their information system it makes a log of that fact. And so that information is going to be pretty significant for proving that I did present myself to CBSA and I did interact with their officers because it would be ridiculous to think that randomly some officer out of the blue just decided to search my name on exactly that day that I happened to be going there.
Judge:
Yeah.
Fox:
So that one I've got some progress on.
Judge:
And when did that request go out?
Fox:
Sorry. I've got so many of them here. That was early October.
Judge:
Okay. I mean, I have -- obviously I have -- and I've expressed these before on the record, Mr. Fox, and you remember I have some concerns about delays.
Fox:
Yes.
Judge:
As I'm required to have concerns about delays, the Supreme Court of Canada says. This matter was sworn -- the charges were sworn on May 14th, 2019, and some of these requests are just being made now. And I know you've had and I've heard evidence about even the police officers making their own inquiries of CBSA, Canada Border Services, and not getting a very robust response. However, we are going to have -- we're going to have the same conversation next time about delay if it should come to that.
And maybe -- it might be one of those situations where -- where you will -- I mean, what you're hoping to do is to -- is to support your -- your -- the version of your events is that you were not -- you didn't voluntarily leave the country. That's essentially what your -- what your position is. And you're seeking to get some kind of material to support that, right?
Fox:
Yes. And I am making progress on it. It's moving extremely slowly, of course, primarily because everything is being done by mail. But this here is just the CBSA folder. There's all these other ones as well dealing with the RCMP and -- oh, Mark Myhre, SOMS [phonetic], IRCC, CBP. The evidence is coming together. I realize it's moving slowly.
Judge:
Yeah. But we're going to have to have a discussion at some point in time whether the responses from Canada Border Services are -- address your question.
Fox:
Yes.
Judge:
Because if the response is that we don't have any record of what you're talking about, and you say, well, there must be.
Fox:
Well --
Judge:
I mean, that's -- we're at sort of a standstill at that point in time.
Fox:
The thing is they're not going to be able to deny -- well, okay. One thing that we have to realize at this point is that so far the Crown has not stated that CBSA is saying that I wasn't there or that I didn't present myself. CBSA, the way they're wording it, you'll notice, they're being very careful to say that there's no record of me presenting myself. But they didn't realize that the FOSS system made a record of it. And so once they're confronted with that, they're not --
Judge:
What system?
Fox:
Oh, the FOSS, Field Operation Support System.
Judge:
Field Operation Support System.
Fox:
Right. And so once they're confronted with that they're going to have to stop all this nonsense about denying that I was there or trying to pretend like I wasn't there.
Judge:
Okay. All right. Well, let's see what happens over the next three weeks.
Fox:
Sure.
Judge:
Do they know -- have you made them aware of when your next court date is? Is that something…
Fox:
I have had numerous attempts to communicate with them other than the ATIP stuff. I've -- well, other than the Shannon Marie Pereira response I haven't received any response from the Douglas border crossing.
Judge:
Okay.
Fox:
And I've sent a letter to Officer Gill there. And the field office supervisor, I've sent a few letters to him requesting information, but they haven't responded at all. I'm not surprised.
Judge:
Yeah.
Fox:
The officer or the supervisor that did respond was from the Vancouver office, but that was specifically about my inquiries to Ms. Pereira.
Judge:
Okay. Because you have some very specific inquiries made under the freedom of information legislation --
Fox:
Yes.
Judge:
-- that by -- I think everybody's on the same page in saying that you're entitled to get a response to those requests. Every citizen is.
Fox:
Yes.
Judge:
It's just a matter of how long is it going to take, I guess is the question. Okay. All right.
Mr. Fox, do you have anything else that you want to raise at this point in time?
Fox:
I would like to make the court aware of the issue that was brought up previously about the photocopies or my inability to make photocopies.
Judge:
Yes.
Wolfe:
I can -- I apologize for interrupting. I got a clear answer from Pretrial. They won't do it.
Judge:
They won't make any photocopies for Mr. Fox?
Wolfe:
No, they will not. And so I thought about that, and here's my solution.
Judge:
Mm-hmm.
Wolfe:
If Mr. Fox brings his material to court the day he wants to file it, perhaps -- because he's saying they're only 50 pages, no more than 50.
Fox:
Well, at that time.
Wolfe:
At that time. I see. I was going to propose that the registry staff just run it through -- they have a high-speed copier in the registry. And then I don't see the material and I don't get involved with --
Judge:
Yeah.
Wolfe:
-- defence material. Maybe just the registry can photocopy it for him.
Judge:
Yeah.
Fox:
As far as any privacy issues or Mr. Wolfe's concerns about getting involved with or seeing the material, it's all material that's going to be presented to the court anyway, so --
Wolfe:
Well --
Fox:
-- there's no secrets.
Wolfe:
That's not the way it works.
Judge:
Well, you're not -- you're not obligated to tell the Crown what your evidence is or --
Fox:
Right.
Judge:
-- what your defence is.
Fox:
But it would be on the day that I'd be submitting it.
Judge:
Now, I -- yeah, that's fair.
Fox:
It wouldn't be, you know, two weeks in advance or something. But anyway, that's fine.
Judge:
Okay. The -- yeah. If -- we're going to assist you as much as we can in that. I mean, if you have documents that you have when you come to court we can try to have them copied, but -- are you saying just to copy them for the purposes of presenting to Mr. Wolfe and to the court? Is that what you're --
Fox:
Yes.
Judge:
Okay. Well, that can be done at the time of the hearing, then.
Fox:
Sure.
Judge:
All right. Okay. We'll deal with that at the time of the hearing. It happens a lot, Mr. Fox, that lots of litigants come to court and they go, "I've got this document; I only have one copy," and we just stand down for a couple of minutes and grab copies for everyone.
Fox:
Right. And I do also want to make all parties, the Crown and the court, aware that some other evidence that I've been accumulating seems to contradict what some of the RCMP officers testified about, and so I might be bringing that up later. I wasn't aware of it or didn't have the evidence at the time of their testimony, so I couldn't have confronted them about it at the time.
Judge:
Okay. Well --
Fox:
I'm just making you aware of it.
Judge:
You might want to draft a specific document that outlines those areas and if you -- if you're going to make some kind of application to have a witness recalled or something like that, you should have -- you should have those -- those allegations of the areas where you say that there's a basis for that, you should have it very carefully set out.
Fox:
Okay.
Judge:
Okay. All right. All right, Mr. Fox. Anything else?
Fox:
No.
Judge:
And, Mr. Wolfe, how are we doing?
Wolfe:
I just want to file, if I may, a copy of the -- our brief and the copies for the completeness of the court record.
Judge:
Okay. All right. Thank you. Fair enough. We'll do that on this application.
Wolfe:
That just gets a registry stamp. Thanks very much.
We're over to --
Judge:
Those can be filed. December 11th is our next date?
Wolfe:
Yes.
Judge:
Okay. All right. Thanks for your attendance, Mr. Garson. I appreciate it.
Garson:
Thank you.
Judge:
All right. Mr. Fox, Mr. Wolfe, thanks.
Transcriber: A. Pinsent