Transcript of Trial Proceedings (2019-12-11)
Synopsis
This hearing is critical!
A number of times, the prosecutor Bernie Wolfe argued very strongly against granting an adjournment but his arguments were so idiotic, so blatantly moronic, that the judge repeatedly lost patience with him and chastised him.
The judge also repeatedly expressed significant concern about CBSA's apparent refusal to cooperate and their unwillingness to even allow one of their employees to simply testify about whether or not there are any records of me presenting myself to them on 2019-03-15.
Of course, keep in mind, if I hadn't presented myself to CBSA (as Wolfe is insisting), then Wolfe would want someone from CBSA to come and testify about that. And the fact that Wolfe has been refusing to request CBSA provide a witness to that is pretty clear proof he knows I did present myself.
Context
Just before the start of the trial, Wolfe informed me and the judge that CBSA had destroyed all of the video footage from the Douglas port of entry for the day I had insisted I turned myself in to them and was denied readmission. Which means they destroyed all of the video footage of me at the port of entry, turning myself in and being denied admission - the video footage which would irrefutably prove I was innocent of these allegations.
The trial then proceeded in August 2019, even though I told the judge I wasn't ready because I was still pursuing evidence from CBSA to prove I had turned myself in to them and was denied readmission. At the end of the prosecution's case, I told the judge I was not ready to proceed with my defense because I was still trying to obtain evidence from CBSA. I was granted an adjournment to allow me more time to obtain that evidence.
In October 2019, I was granted another adjournment as I was awaiting responses to some ATIP (freedom of information) requests.
Wolfe and the RCMP had been colluding with CBSA to flasely claim there was absolutely no record of CBSA having any interaction with me on the day I claimed I turned myself in to them. Wolfe wanted the trial to proceed and complete as quickly as possible because he knew the longer it dragged on the more chance there was I would find and obtain the evidence that proved I did turn myself in, and that he, the RCMP, and CBSA had been lying to the court about there being no record of them interacting with me.
The day before this hearing, I had received a response to one of my ATIP requests to CBSA. In that request I was seeking the log entries from CBSA's computerized information system where such entries relate to searches of my name on 2019-03-15, between 4pm and 6pm Pacific Time, from the Douglas port of entry. CBSA's ATIP department responded, "Nothing disclosed (exempted)". The fact that the response said the records were exempted, means that such records existed and were found but were being withheld. And the fact that there were matching records found proves that someone at the Douglas port of entry searched their system for my name at exactly the date and time I had been insisting I turned myself in to them. This constituted very significant proof that I had been telling the truth about turning myself in, and that CBSA and, possibly Wolfe, had been lying to the court.
Wolfe Panics, Becomes Desparate
So, at this hearing, I had informed the judge of the ATIP response. Wolfe, realizing that he was getting very close to being caught engaging in conduct for which he could be disbarred, panicked. He kept making ridiculous arguments and claims. At one point, the judge said to Wolfe "I'm struggling to understand that argument" p4l26-35. At another point, the judge asks why it is that someone from CBSA can't just come and testify about why it is my name was searched, and Wolfe responded "What would it, how would it assist you?" Again the judge was flabbergasted and said "How does that assist me?" p6l35-37.
At another point, Wolfe is desparately grasping at straws, trying to downplay the significance of the ATIP response. He insists the response doesn't indicate that my name was searched. After some testy back and forth between us, I say "Just face it, Mr. Wolfe. You guys made a mistake. You screwed up big time. You held me illegally all this time in jail" p10l39-p11l20.
CBSA's Refusal to Cooperate
And as if that all that's not bad enough, then later the judge says "Well, this is just -- this has turned from the ... absurd to the -- to something worse than that" p12l6-8, and "You know, this whole case has been a source of great annoyance to me, because it seems to me it would be so easy for somebody from Canada Border Services to come and just say they don't have any records of dealings with Mr. Fox, but nobody's able to say that..." p12l32-37.
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.
December 11, 2019
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT ADJOURNMENT APPLICATION
BAN ON PUBLICATION 517 CCC
244069-5-BC
Vancouver Registry
In the Provincial Court of British Columbia
(BEFORE THE HONOURABLE JUDGE ST. PIERRE)
Vancouver, B.C.
December 11, 2019
REGINA
v.
PATRICK HENRY FOX
v.
PATRICK HENRY FOX
PROCEEDINGS AT ADJOURNMENT APPLICATION
BAN ON PUBLICATION 517 CCC
Crown Counsel: Bernie Wolfe
Appearing on his own behalf: Patrick Fox
INDEX
- NIL
EXHIBITS
RULINGS
Vancouver, B.C.
December 11, 2019
Wolfe:
Wolfe, initial B., for the provincial Crown, Your Honour, and calling the Fox continuation.
Judge:
Thank you. Okay. Mr. Fox is here. We'll let you get set up there, Mr. Fox.
Fox:
Thank you.
Judge:
Madam Registrar, we have -- this is a 244069-5-BC, right?
Clerk:
Yes, Your Honour.
Judge:
Okay. Have pleas been entered?
Clerk:
Yes. Not guilty pleas were entered June 3rd, 2018.
Judge:
June 3rd. Thank you.
Fox:
Do you have a moment?
Wolfe:
On the record?
Fox:
Well, actually we'll talk about it afterwards. I -- it's probably not going to matter for today.
Judge:
Okay.
Fox:
I'm ready to proceed.
Judge:
Yes? Okay. Thank you, Mr. Fox. I've got again, 244069-5-BC is the Information. There were not guilty pleas entered at an earlier date. There's three counts. Mr. Wolfe.
Wolfe:
Well, the Crown's case closed and we were adjourned for defence.
Judge:
You're confirming that.
Wolfe:
Yes.
Judge:
-- all of the evidence for the Crown is in?
Wolfe:
Yes.
Judge:
Mr. Fox, the application, we had the last occasion for subpoenas. We've dealt with -- dismissed the application. Mr. Fox, the -- on August 15th, 2019 the Crown closed its case , so I am obligated to ask you whether -- and you don't need to, you're not obliged to but you're certainly entitled to call any evidence on behalf of yourself in this proceeding. Obviously the Crown has the physical -- has the burden of proof in this case and we've talked about that before and I think you understand that. They have certain things that they have to prove the existence of any essential elements of and that you don't have to prove anything, but you're entitled to call evidence on your own behalf if you want to.
So do you have any evidence to call on your own behalf?
Fox:
I have over the past few weeks received some evidence from CBSA, some of the evidence that I've been pursuing. I'm still very actively pursuing further evidence. I think one very important piece of evidence that I just -- I just received yesterday -- as a matter of fact, it arrived at the jail two days ago, I received it yesterday -- was confirmation from CBSA that my name was searched on March 15th, 2019 between 4:00 and 6:00 from someone at the Douglas border crossing, which clearly proves that I did present myself to them. I've been in further communication now with those parties in Ottawa. This is all being done by mail so it's taking a long, long time.
So the next step is obviously to get the identities of the parties that I interacted with there so that we could then seek the subpoenas to try to get them to testify about what exactly happened on March 15th, 2019 when I went to the border, because there's a dispute between -- the Crown is saying not voluntarily. I'm saying that I presented myself to CBSA and was denied readmission.
So based on that I would like to request a further adjournment so that I could continue to pursue that additional evidence, and I have copious amounts of documents here to -- if there's any question about whether or not any of this really happened and I really did get these documents from CBSA. Got it all right here in the legal box if there's any dispute about that. If not, then I don't want to waste Mr. Wolfe's and the court's time with making photocopies if it's not necessary.
Judge:
And you say that a search was done between, on -- on what date?
Fox:
Oh. It was when I was present at the border. Would have been March 15th, 2019 between 4:00 and 6:00 p.m.
Judge:
March 15th, 2019 between 4:00 and 6:00 p.m.
Fox:
Right, and the CBP video shows that it was about 5:45 is when I'm on video walking over to CBP, so this means that my name was searched by CBSA prior to that.
Judge:
Okay.
Fox:
Because certainly the Crown would have been able to argue "Oh, well, maybe CBSA was searching your name because CBP contacted them after you turned yourself in there," so that's why I specifically stated in my request to that.
Judge:
That's why I asked, yes.
Fox:
Right.
Judge:
All right. So what do you have from the Canada Border Services that leads you to believe there's some relevant evidence?
Fox:
The response that I just received yesterday in the annex page here, it has first obviously just a transcript of what my request was.
Judge:
Do you have copies of that document?
Fox:
I don't have photocopies yet, but Mr. Wolfe had stated previously that he would be willing to make the photocopies if it's necessary.
Judge:
Well, the court can do it too. I just don't -- have you shown Mr. Wolfe?
Fox:
Oh, no. I just received this literally yesterday. You see it's stamped received by the jail two days ago.
Judge:
All right, yes. Mr. Wolfe, the -- I think the request from Mr. Fox obviously is for a further adjournment, because he says he's got now some relevant line of inquiry with respect to his attendance at the border. I imagine you want to have a look at that, and I suppose for the purposes of me deciding whether an adjournment is warranted --
Fox:
One thing --
Judge:
-- I should have a look at it.
Fox:
One concern I do want to emphasize is I'm a little reluctant to give too much information about the requests that I'm submitting to CBSA and to IRCC to the Crown at this point, because I have an incredible lack of trust --
Judge:
Mm-hmm.
Fox:
-- with the B.C. Prosecution Service, IR -- well, not IRCC, CBSA and the RCMP.
Judge:
Yes.
Fox:
And I wouldn't want to give them information that they can then give to CBSA which CBSA can then use to get the people in Ottawa to stop assisting me with these things.
Judge:
Okay. Well, I guess --
Fox:
Now, I do know --
Judge:
Well, just hang on just for a minute.
Fox:
Sorry.
Judge:
The request by Mr. Fox that he's just made is for an adjournment to seek further information. Mr. Wolfe, do you have a preliminary position to that request?
Wolfe:
So if I may just briefly address a point Mr. Fox made before I answer your question, or I'll answer your -- I'm in a bit of a vacuum about whether -- what my position would be with respect to an adjournment.
Wolfe:
You may recall that -- I think I've been consistent that the allegation about -- by Mr. Fox that he was either removed from Canada or denied entry into Canada or deported from Canada holds no water, and Crown's position is it's not relevant to any issue. Whether or not there was a name search or if Mr. Fox attended at CBSA is not relevant to any material issue before the court to determine whether or not he's breached the probation orders, but --
Judge:
I'm struggling to understand that argument.
Wolfe:
Yeah.
Judge:
Yes.
Wolfe:
So let me help you, then. In what way?
Judge:
Well, you say the fact that he was deported or removed is of no moment.
Wolfe:
No. I'm saying that's a fiction. That just never happened. That's my position.
Judge:
That is a fiction?
Wolfe:
That's right.
Judge:
Mr. Fox is saying he now has some indication that Canada Border Services was -- conducted a search of his name prior to his -- to the Americans calling Canada and saying "He came over here."
Wolfe:
Yes, I understood that.
Judge:
So -- and he's saying that's -- the Crown has said well, he didn't have any dealings with Canada Border Services.
Wolfe:
No, what -- no, that's not been the evidence. The evidence through Constable Brown is that when she made inquiries she was advised there were no documented records of contact with Mr. Fox by CBSA on the 15th of March, 2019. I just heard -- I understand what I've just heard there.
Judge:
Yes.
Wolfe:
But -- but that's been the evidence.
Judge:
Mm-hmm.
Wolfe:
And that's a separate issue from whether or not he was removed or deported, and he's changed his terminology there.
Judge:
How is it a separate issue? Isn't it related? If they had contact with him, isn't that some evidence that they had some dealings with him prior to his exit from Canada?
Wolfe:
Yeah. The logical factual gap is that a name search does not one allow -- does not allow one to either draw the inference or deduce that anything other than a name search was made.
Judge:
Yes, but why would there be a name search?
Wolfe:
Well, I think that would involve speculation in order to do that, but if there's to be a foundational basis for an adjournment or an allegation that he was removed, it would have to be far more than a name search conducted on March the 15th, 2019. It's simply not logically possible to either infer or deduce that because there was a name search record which he'd received a couple of days ago, that that implies that he was either removed from Canada or deported or denied entry.
There's just far too much -- there are too many premises missing in that argument for that to hold any water, and that actually goes towards whether or not an adjournment should be granted.
Judge:
Well, yes, but --
Wolfe:
And I will say this as well, which was my preliminary point. Mr. Fox has -- is in receipt of documents, but the provenance of that or the context or whether they're complete has not been established. There would be nothing admissible under either common law or under the Canada Evidence Act with respect to either a business record or a government record exception under the CEA that would permit receipt of those documents. They are at this juncture, nothing more than paper with text on them.
Judge:
All right. What we're trying to do here, Mr. Wolfe, is to assist Mr. Fox in seeking out disclosure that could be relevant to his defence.
Wolfe:
I appreciate that.
Judge:
Yes.
Wolfe:
I do understand that completely.
Judge:
We're not trying to block that.
Wolfe:
No.
Judge:
We're trying to assist.
Wolfe:
I understand that completely, but the bow he's drawing is extraordinarily long, to say that because he -- and I've not seen his documents, but I'm taking him at his word that he indicates that it -- that shows that there was a computer system search of his name between certain hours, 4:00 to 6:00 p.m. on the 15th of March which would appear to precede the video date stamp recording on an American border control video. I have that point.
Judge:
Mm-hmm.
Wolfe:
To go from that to say therefore that there's a basis for an adjournment for -- and I take no position about whether or not he's successful in subpoenaing the CBSA officer. That's really up to CBSA. I'm not their counsel. I would only say that I will reserve the right to respond whether or not there's any relevance to whoever may appear if anyone appears with respect to the defence case.
Judge:
Shouldn't somebody be able to -- should be able to tell us why CBSA for no apparent other reason other than their dealings with him, conducted a search of his name at a -- on the very date in question? Shouldn't somebody be able to come and tell us that?
Wolfe:
Why?
Judge:
Because the police officer couldn't.
Wolfe:
What would it -- how would it assist you? And not only that, there may be some --
Judge:
How does that assist me?
Wolfe:
Yeah, right, and there may -- and quite frankly, there may be some definitional issues that are unresolved. Simply because there has been a name search doesn't automatically mean that the information that Constable Brown received about the no documented records are inconsistent. It all depends what CBSA meant when they said no documented records, where they would --
Judge:
Well, you' re splitting hairs. That's semantics.
Wolfe:
No, it isn't.
Judge:
What we're trying to find out is whether CBSA had dealings with Mr. Fox, as he alleges.
Wolfe:
With respect, I'm not splitting hairs. I'm listening very carefully to Mr. Fox and I'm recalling the evidence of Constable Brown. But I'm hard pressed, quite frankly, to see that there is an argument, foundation for an adjournment simply because relevance is a function of whether or existence or non-existence of a fact renders a material fact more or less probable, and I'm at pains quite frankly to understand Mr. Fox's reasoning, how a name search would permit him to seek an adjournment.
Judge:
Well, there was evidence from the officers that there's no records of any dealings with Mr. Fox. He says "They searched my name on a computer at the very relevant time that we're talking about. " Well, why is the question. The only inference to draw from that action is that they were interested in him somehow.
Wolfe:
And what does that have to do with this case?
Judge:
Well, I don't even understand your question. What do you mean? It's obvious what it has to do with the case.
Wolfe:
No, it doesn't actually, because the --
Judge:
Okay.
Wolfe:
With great respect, the problem and the reasoning is the false premise. If you accept the false premise that Mr. --
Judge:
What's the false premise?
Wolfe:
That he was removed.
Judge:
I don't accept anything yet, nothing. There's been no evidence of that yet.
Wolfe:
Sure, but you're -- you appear to be, with respect --
Judge:
I'm giving credence to a request for disclosure. I'm giving him a hearing, a fair hearing about seeking disclosure that he says is relevant and has some basis to believe it's relevant. That's all, yes. Nobody's saying he's -- it's been proven or anything, yes, or even -- or even something less than proven, but the only decision right now is there some relevance to it. That's the only --
Wolfe:
My position is there's no relevance to it, and I've explained why.
Judge:
Okay. Mr. Fox, what exactly was your request and what was the response from Canada Border Services on that issue that you just told us about?
Fox:
The exact wording -- well, okay. First let me give you the exact wording here. The log entries for CBSA's computerized field office support system/information system which contained the record of searches/queries which have been executed within the system.
I'm only interested/requesting the log entries which match the following criteria: one, they relate to searches or queries of my name as either Patrick Fox or Patrick Henry Fox. Two, they relate to searches or queries executed on March 15, 2019 between 4:00 p.m. and 6:00 p.m. Pacific time. And three, they relate to searches, queries executed from the Douglas border crossing in Surrey, B.C.
So that's the wording of the request.
Judge:
Okay.
Fox:
And then in the response the request disposition, they say nothing disclosed, exempted, and then they give the section that it's exempted under. Now, from that alone you might say oh, well, that doesn't really tell very much. What it tells is that one or more records were found and the records are being exempted, and the fact that the records were found means that there are log entries which match my name, and --
Judge:
So what -- you told me about some search.
Fox:
Oh, yeah. Oh. The search of the log entries for CBSA's computerized information system.
Judge:
Yes. What response did you get?
Fox:
The response to it from CBSA is nothing disclosed, exempted. Nothing disclosed meaning that they're refusing at this point to disclose the records.
Judge:
I don 't understand that. You just told me the -- there was a search and they -- your name was searched between 4:00 and 6:00 p.m. or something like that on March 15th. Where does that come from?
Fox:
Oh, okay. What I was asking them for were the log entries for their computerized information system. Now, whenever anybody uses IRCC's or CBSA's system to search for a person or to search any information, it keeps an audit log of that so that that way there's a paper trail to show that these searches were performed.
What I was requesting from CBSA was a copy of the log entries which would show that my name was searched, and then the response that I just got back from them was that records were found but that they are not disclosing them at this point, they're exempt under section 22(1)(b).
Judge:
22(1)(b) of the --
Wolfe:
What act?
Fox:
Of the Privacy Act.
Judge:
Okay, of the -- they're exempt under 22(1)(b) of the Privacy Act?
Fox:
Right, which is investigative techniques or plans for specific lawful investigations. Now, obviously I forwarded that to the officer, or to the Office of the Privacy Commissioner of Canada to try to get those.
Judge:
And you're talking about the federal act?
Fox:
Yeah. Oh. The URL of the --
Judge:
What is the -- when they say section 22, what act are they referring to?
Fox:
The Privacy Act. There's a URL to the actual act if you want to --
Judge:
Can I see this document, please?
Fox:
Sure.
Wolfe:
Would you mind if I have a look at it first?
Judge:
Yes, go ahead, because it -- we're relying on Mr. Fox's interpretation of it and it's probably --
Fox:
And part of the reason that I would be requesting the adjournment at this time is I had sent a letter to the analyst that had done the search and provided this response, to ask her to give a more thorough or clear explanation, something that would be more useful to the court rather than simply saying that the records were found but they're exempt from being disclosed. And also I forwarded the complaint to the Privacy Commissioner.
Judge:
I don't see how you're -- how some dealing that you had with Canada Border Services would be exempt under some sort of international affairs and defence argument.
Fox:
Right. I have many other documents from CBSA here which when you look at them you start to see that there's a real pattern, that there's something very suspicious going on. Some of the responses I've gotten from them, they are refusing to admit or deny the existence of the records even though I know the records exist because they've previously been disclosed to me, emails for example from Shan-Marie Pereira. And then there's a lot of them I have here, these are all of the currently outstanding Privacy Act requests. I have --
Judge:
So -- hang on for a sec.
Fox:
A lot of them they just haven't responded to.
Judge:
Hang on for a sec. The -- Mr. Wolfe, you had a --
Wolfe:
So where -- does Mr. Fox have a document from CBSA that shows that your name was searched?
Fox:
A document that -- oh.
Wolfe:
'Cause it's not on here.
Fox:
No, but the nothing disclosed means -- nothing disclosed means that there were matching records that were found.
Wolfe:
Well --
Fox:
They're not being disclosed. I know you're going to argue oh, well, maybe that means no records were found.
Wolfe:
I don't know what it means, but it --
Judge:
What are their options, Mr. Fox? You've made a few requests. Do they tell you when no records were found --
Fox:
Yes. Okay.
Judge:
-- or do they just always say nothing disclosed?
Fox:
Yes, they do. I have some examples here of what they say when there are no records found.
Wolfe:
You know, Your Honour, a moment ago I wrote down on a yellow pad of paper that Mr. Fox said that on his name search there was an indication I'm sorry, that his name was searched --
Judge:
Yes.
Wolfe:
-- between 4:00 and 6:00 --
Judge:
Right.
Wolfe:
-- on the 15th of March.
Judge:
I wrote that down too.
Fox:
That there were log entries.
Wolfe:
That's not in here. That's absolutely not in here. In fact, what -- what they've -- you can look at it. They've -- to make -- put down his typed request , then they respond to it. All they say on the response is nothing disclosed, exempted. Where -- where does it say there was a name search between 4:00 and 6:00? Please give this to the judge.
Fox:
And now, Mr. Wolfe, please have a look at what they say when no records were found.
Wolfe:
Well, I don't care --
Fox:
And what's on there.
Wolfe:
-- what's on there. I'm not interpreting CBSA documents any more than Mr. Fox is. I didn't write that. That's not a Crown document. That's somebody else's thing.
Fox:
Just face it, Mr. Wolfe. You guys made a mistake. You screwed up big time. You held me illegally all this time in jail.
Judge:
Hang on for a minute, Mr. Fox.
Fox:
Sorry.
Judge:
Yes, I think -- I think what he -- I think what Mr. Fox is doing is making the inference that there is an exemption to disclosure being, being advanced under section 22(1)(b) of the federal Privacy Act. I think that's what he's -- 21, 21 of the federal Privacy Act is that a head of a government institution may refuse to disclose any personal information requested if there could be a reasonable expectation that it's injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada. Now.
Fox:
Oh, it -- it does state on there the section.
Judge:
That exemption, that purported exemption doesn't seem to --
Wolfe:
I take it you're looking at a copy of the Privacy Act right now?
Judge:
I am, section 21 of the Privacy Act, or 20 -- sorry. It's under 22(1)(b) actually is what the exemption is, and the disclosure there, the exemption, they may exempt disclosure, refuse to disclose if could reasonably be expected to be injurious to the enforcement of any law of Canada. That doesn't make any sense to me, but -- and you're saying in other cases they've just said there's nothing?
Fox:
That is correct. I have a few here that I'd be more than happy to show you where they clearly state no records found, or does not exist.
Judge:
Mm-hmm. Well, this is just -- this has turned from the -- from the absurd to the -- to something worse than that.
I don't understand this, Mr. Fox. I mean, they're telling you that they -- there's disclosure but it's exempted because it's injurious to the enforcement of some law in Canada. Somebody's going to have to --
Fox:
May I -- well, on that same document that you have right below that it states the exemption 21 or 22, et cetera, and then there's a brief description in there. And I notice that that brief description, though, doesn't seem to correspond to what's on the website. On the document it says something about lawful investigations or --
Judge:
Mm-hmm. Investigative techniques or plans for specific lawful investigation.
Wolfe:
Right.
Fox:
Right.
Judge:
Well, 22(1)(b) does refer to investigations and other things, also revealing the identity of confidential source information or information that was obtained or prepared in the course of an investigation. But they specifically refer to investigative techniques or plans for specific lawful investigations.
You know, this whole case has been a source of great annoyance to me, because it seems to me it would be so easy for somebody from Canada Border Services to come and just say they don't have any records of dealings with Mr. Fox, but nobody's able to say that, and in fact Brown lent some very -- muddies the waters by suggesting that yes, she actually spoke to somebody who suggested they did have dealings with Mr. Fox.
Why can't somebody just -- it was -- she was talking about -- when they arrived on April 4th they'd mentioned the possibility of a visit on March the 15th.
Wolfe:
Your Honour, are you going to mark that document or copy of it as an exhibit?
Judge:
Sure.
Wolfe:
Because it seems to me it's figure --
Judge:
Let's make copies of it, Madam Registrar.
Wolfe:
It's figuring into whatever you know, position you're going to come to.
Judge:
We're going to make it --
Fox:
May I -- may I request though if we're going to make a copy of that as an exhibit, may we also include my original request?
Judge:
Well, they've -- they've paraphrased your request.
Wolfe:
They do --
Fox:
Yeah.
Wolfe:
Well --
Fox:
Okay.
Wolfe:
But they excerpted the specific request.
Fox:
Well, yeah, I should say changed a few things and there's some typos in it and --
Judge:
Well --
Wolfe:
The bottom line is their response, so --
Judge:
Yes.
Fox:
But may I -- may I say one thing I've been wanting to say for a long time? On this issue of all the problems we're having with CBSA cooperating, I'd like to point out how cooperative CBP has been in all of this, and how CBP has all this video footage and CBP has done everything that's been asked of them. I don't understand why CBSA is being so uncooperative. I mean, I understand.
Judge:
I don't either.
Fox:
I'm being facetious in saying that but --
Judge:
Because there's an officer who actually testified that they made requests for disclosure and were essentially stymied, thwarted, ignored.
Essentially that's the gist of the evidence of some -- of one of the officers.
Fox:
I'd also like to point out to the court, just before I was brought up here I was served a new Information, some new charges, so I'm being detained on those as of today as well, and so --
Judge:
Hang on for a sec.
Fox:
Well, my point is I'm no longer just being held on this, so it's not like my being in custody is an issue any more.
Judge:
Oh.
Wolfe:
So I really don't think it's helpful to you to know about what other business Mr. Fox has.
Judge:
Well --
Wolfe:
If you want to hear it, then you know.
Judge:
Well, it --
Fox:
It's more probation violations.
Judge:
It might be of some relevance in determining the liberty interests and whether they're --
Wolfe:
Sure.
Judge:
How present they are in any --
Wolfe:
So --
Judge:
-- decision for adjournment.
Wolfe:
So Mr. Fox is before the court on a B6 Information. I believe it to be a two-count allegation related to the ACJ Holmes' probation order, two new breaches.
Judge:
Between -- yes, okay.
Wolfe:
He made a first appearance today on a warrant in the first, was executed in Court 101 before Her Honour Judge Oulton.
Judge:
Yes.
Wolfe:
There's an ad hoc Crown assigned to it. Forgive me, I may get the returnable date incorrect. Was it the 19th or the 16th of December?
Fox:
19th, I believe.
Wolfe:
19th of December.
Judge:
December 19th?
Wolfe:
Yep, that's --
Judge:
And he's agreed to --
Wolfe:
So he's consenting to remain --
Judge:
In custody?
Wolfe:
Till that time. He's not detained on it. That's my understanding, and so he's got an appearance coming up later on this month.
Judge:
Okay.
Fox:
Well --
Wolfe:
Did I get that right?
Fox:
Yeah, but I think it's a little ridiculous to say I'm consenting to be detained.
Wolfe:
Well, that's a legal --
Fox:
I'm in custody. The Crown's seeking detention.
Wolfe:
That's legal terminology.
Judge:
You didn't -- yes. It just means you didn't have a bail hearing today.
Fox:
Right.
Judge:
And you're agreeing not to have a bail hearing today.
Wolfe:
That's all that means.
Judge:
Because you're entitled to a bail hearing.
Fox:
Right.
Judge:
Obviously. The --
Wolfe:
And it is by indictment. That's what I understand.
Judge:
Oh, okay.
Fox:
Yes, and so that's going to proceed in Supreme Court, the jury trial, so --
Judge:
That would be your election --
Fox:
Yeah.
Judge:
-- if you were to elect, is what you're saying. Yes. And you -- and you don't know what you're going to do with respect to a bail hearing yet? You're coming back on the 19th.
Fox:
Oh, I'm going to have a bail hearing. I'll be denied, though, and I'll be in custody till it's finished, I'm sure.
Judge:
Well -- well, we don't presuppose anything around here.
Fox:
experience.
Judge:
Yes.
Fox:
If nothing else I'm a flight risk. I mean, there's no doubt about that. But getting back to the issue that we're talking about though, the relevance of all of this and whether or not I presented myself. I was hoping to ask Mr. Wolfe today if he would be kind enough to ask CBP if the officer that I presented myself to would be willing to testify, because she would have firsthand knowledge about the notification that was sent from CBSA to CBP. I'm still waiting for proof of that from the Freedom of Information request I'd sent to them. Before I --
Judge:
But we had somebody from the --
Fox:
Well, that was Officer Obrist. He showed up hours after. He had no knowledge of --
Judge:
Yes, no.
Wolfe:
Not at -- well --
Judge:
You're saying the first person --
Wolfe:
Don't believe it was hours after --
Fox:
Yeah, it was hours.
Judge:
-- who dealt with you on the -- the first person who dealt with you on the American side?
Wolfe:
No, he wasn't the first person. He came in to deal with --
Judge:
No. I'm saying you're seeking the first person that you dealt with on the American side?
Fox:
That's correct, the woman -- the lady officer that was at the counter that I first walked up to and handed my driver's licence to.
Judge:
Oh.
Fox:
Because she would be able to testify about the notification that CBP received from CBSA prior to me arriving there, which would further prove that I presented myself to CBSA and --
Judge:
Okay. Let's get copies of this letter. Going to stand down for a minute. We'll get copies of that letter and -- and what -- and do you have any -- is there anything else, Mr. Fox, before we stand down? You're seeking an adjournment, obviously, to --
Fox:
Continue to pursue evidence.
Judge:
Yes.
Fox:
There was an issue that came up at the previous hearing about how Mr. Myhre in his subpoena, the statements that he had made during the sentencing submissions, and I was hoping to ask Mr. Wolfe if he would be willing to get the DAR recordings from the Supreme Court for that because during my testimony that's going to be relevant, and I'm not able to --
Judge:
I don't see how it is. You' re going to have to --
Fox:
Oh, well, because I'm going to be testifying that Mr. Meyer had said to me that if I'm deported or removed or asked to leave the country, that he's not going -- he would not obviously prosecute me for that because --
Judge:
Yes. That's not relevant to this proceeding unless you're advancing some kind of, you know --
Fox:
Well, that -- I believe that would go --
Judge:
-- abuse of process or something like that.
Fox:
-- to the credibility of my statements that my intention was to turn myself in to CBSA, because I literally would have absolutely nothing to lose by --
Judge:
Well, and again previous -- you know --
Fox:
Okay.
Judge:
Previous statements that are consistent with your current one aren't particularly relevant either at this point. It's your evidence now that matters. Let's -- anything else before we take the break.
Fox:
I would just like to ask Mr. Wolfe if he would be kind enough to provide me copies of the letters I had sent to him after September 22nd. He hasn't sent me any copies of any those. September 22nd was the last letter I have.
Judge:
Okay.
Fox:
And --
Wolfe:
Sure.
Fox:
That CBP officer, the DAR recordings. Oh, something here.
Wolfe:
Did not -- did they not scan? I'm sorry, I should be standing. Did we not scan the letters post September 22 onto the disclosure?
Fox:
I'm not sure if they're on there, but you recall the issue with them being on the --
Wolfe:
That's been the practice, that when we get the correspondence from Mr. Fox we watermark it and put it on the disclosure.
Judge:
On your computer.
Wolfe:
Yeah --
Fox:
Right, but you recall the issue I had with that is that when I give the laptop back --
Wolfe:
Yeah.
Fox:
-- then I don't have a copy of my own letters. I mean, I could -- like all these other documents, as I've said before I actually have to write them out by hand twice so that way I have a copy, and I could do that with the letters I've sent to you as well. I just figured that you would be kind enough to --
Wolfe:
Yeah, okay, so I'll look into that.
Fox:
-- make a photocopy.
Wolfe:
Yeah, I'll look into that.
Fox:
Thank you.
Wolfe:
Sure.
Judge:
All right. Anything else before we stand down?
Fox:
Just another request for Mr. Wolfe, if he would be kind enough to ask the jail if they could possibly extend the single bunk status.
Wolfe:
Oh. My position will be until this matter's, done --
Fox:
Right.
Wolfe:
-- Mr. Fox should have single bunking, and I appreciate we only had these two days set, and if the adjournment is granted it'll be into the new year. If the adjournment is granted -- I haven't heard anything from His Honour, but if it is granted I will email the warden again and say extend it.
Fox:
Okay.
Judge:
Okay.
Wolfe:
Sure.
Fox:
And so that -- that was all I had, yes.
Judge:
Okay.
Fox:
Now, but please ask the court to please also keep in mind there are many other Freedom of Information and similar requests that I still have outstanding, and I'm still waiting for responses both from the RCMP as well as CBSA, so it's not all just about this one document.
Judge:
Well, what's the timeline? Have you been told?
Wolfe:
Well, I was wondering about that.
Fox:
Well, I mean, there are some things -- there are some that CBSA --
Judge:
Don't they have timelines in their own legislation?
Fox:
Yes, 30 days, they can use an extension of an additional 30 days. There are a number that they haven't responded within the 30 days, and I've -- and forwarded it to the Privacy Commissioner of Canada.
Judge:
I know we're in the second 30-day period right now, aren't we?
Fox:
Well, some of them. Like I didn't -- I didn't submit them all back in August, because sometimes, some things didn't occur to me at that time and then later I --
Judge:
I know, but it's beyond -- it's between 30 and 60 for some and beyond 60 for some of them, isn't it?
Fox:
Yes, and there are some that I have received the responses from and I have those, and those are going to be used when I testify.
Judge:
So when they're obliged to respond within a certain period of time what -- and they don't, what's the remedy for that?
Fox:
Then I have to forward a complaint to the Privacy Commissioner. For example -- let's see -- oh , well -- oh, that one they -- oh, on the email retention -- oh, the video retention policy. That's a perfect example because I had requested a copy of the policies pertaining to the retention of the security videos, because you recall that they had -- CBSA had claimed that they destroyed the videos --
Judge:
Yes.
Fox:
-- 'cause they do that after a period of time.
Judge:
But again the relevance of what -- of whether they should have kept them or not, how is that relevant?
Fox:
Well, that's -- it's relevant in that if they still have the video and they were lying about destroying the videos, then I would like to get those videos.
Judge:
Mm-hmm.
Fox:
If they did destroy the videos, then they did so in violation of their own policy.
Judge:
Mm-hmm, but again you're into a --
Wolfe:
I think this is awfully collateral and we're really -- if not irrelevant.
Judge:
You're into an abuse of process kind of argument.
Fox:
Well --
Wolfe:
There's just no end, end to this.
Judge:
There doesn't appear to be much of an end, does there?
Wolfe:
No end. I'm really deeply concerned as Crown here, that -- and I have Mr. Fox's position. I think at one point he said he was prepared to wait for years in jail --
Judge:
Yes.
Wolfe:
-- but that's not going to happen.
Judge:
Well, that's -- that's just not.
Wolfe:
And that's really -- you know, sort of we can't be here by springtime. This -- at some point we will have fallen down --
Fox:
I --
Wolfe:
We will have fallen down a rabbit hole that's so deep that the focus of this trial will be lost on collateral issues or irrelevant issues.
Judge:
Well, I agree with that sentiment. I just -- it just seems so easy, it seems to me to be so easy to establish the simple fact of the attendance at the border to dispose of that issue, and yet the sole people who can dispose of that issue or who have in possession or not of -- of information that could dispose of that issue are seen to be completely uncooperative.
Fox:
May I speak frankly?
Judge:
It doesn't make any sense to me.
Fox:
It makes sense to me because I know what CBSA is up to. I know what's going on.
Judge:
Well --
Fox:
I'm trying to prove it.
Judge:
Notwithstanding your conspiracy theory, I would like to get to the bottom of that, the issue that you keep raising all the time just so that we can move past it. And yet for some reason it doesn't matter one way or the other to CBSA, doesn't matter one way or the other what the -- what the result is.
But why they can't just give the information is beyond me, and how they -- they you know, purport to exempt that information under some kind of you know, investigative security or national security thing is beyond me.
Wolfe:
So -- so has Mr. Fox ever tried to contact legal counsel for CBSA? Maybe that might --
Judge:
That's a good question.
Wolfe:
You know. Because the -- it's common that in dealing with private corporations and government bodies, that you know, once somebody's dealing with a general counsel or a vice general counsel in laying out issues there might be a better response.
Judge:
Things happen sometimes.
Wolfe:
Well, that's true, you know.
Judge:
Well, yes. You know, Mr. Fox, it's unfortunate that you don't have some legal representation, and I've heard all the arguments why that is the fact. I'll tell you, this thing would have been probably wrapped up a lot earlier if you did. But you know, you're entitled to represent yourself. That means a lot more complications, unfortunately.
All right. The -- we'll get a copy of that thing. Is there any further submissions with respect to this request for an adjournment? Because what I'll do is I'll get the copy of this request, and I guess I'm going to come back with a ruling on whether the adjournment request is granted, but I want to give everyone an opportunity to make submissions with respect to that.
Do you need some time, Mr. Wolfe, or do you want to --
Wolfe:
Oh, I'd probably want to just mull over the documents some and --
Judge:
Okay. Well, I won't make any ruling, then, until I hear from you further.
Wolfe:
Thank you.
Judge:
Okay?
Wolfe:
Okay.
Judge:
All right. We'll take an early break.
(PROCEEDINGS ADJOURNED FOR MORNING RECESS)
(PROCEEDINGS RECONVENED)
Wolfe:
Wolfe, initial B., for the provincial Crown, Your Honour. Recalling Fox.
Judge:
Thank you, Mr. Wolfe. Yes. Any further submissions you want to make on this?
Wolfe:
Yeah, briefly if I may. So as Crown sees it we have before the court an application by Mr. Fox to adjourn the continuation of his trial, predicated on -- on a document he recently received dated November the 28th, 2019 from Canadian Border Services Agency.
When he first spoke about it he said that it appeared clear, and I'll paraphrase, that it -- I listened and I understood him to say that in fact there was a name search conducted on him on the 15th of March 2019 between the hours of 4:00 to 6:00 p.m. I looked at the document, and it actually doesn't show that. The request for disposition is nothing disclosed, exempted, and a particular section of the Privacy Act was cited.
My position is the adjournment is simply based on nothing having been disclosed,
and it falls well short of a basis that Mr. Fox says he was denied entry into Canada, which seems to figure prominently into his defence. It's even less than tenuous because one can't interpret the document that he has proffered to the court simply because it says nothing disclosed, exempted. It's also contrary to the evidence of Constable Brown, who was clear that there were no CBSA documents to support contact between the CBSA and Mr. Fox on that date.
My position here is that the basis for the adjournment is less than thin. It's actually wholly speculative and should be denied.
Judge:
Okay, thanks. Yes. Mr. Fox , do you have any reply to that?
Fox:
Yes , I do. First, this is a photocopy. May I get the original back, please, with the --
Wolfe:
Oh , I think the original's with the court, but I -- if there's a switch I don't think it could --
Judge:
Is there an original? I think I have a copy --
Wolfe:
We just have a copy.
Judge:
Well, I don't know. You can't really tell --
Fox:
Yeah, that's the original.
Judge:
-- because the signature is a --
Fox:
No, no, but -- the original --
Judge:
Is a -- it's one of those computer signatures.
Fox:
But the original has the CBSA envelope at the back instead of a photocopy of it.
Judge:
Oh, okay. All right.
Fox:
So --
Judge:
You can have that back.
Wolfe:
Sure.
Fox:
Maybe I could give you --
Clerk:
Did you want this marked as an exhibit, though.
Judge:
Oh. You want the one with the envelope?
Wolfe:
The envelope.
Fox:
Right.
Judge:
Okay. You can mark this one, then.
Fox:
Thank you. Sorry about that.
Judge:
Or the -- does that one have a copy of the envelope?
Clerk:
Yes, it has a copy.
Judge:
Yes, okay then.
Wolfe:
Since there's an application I -- my position is that letter should be marked as an exhibit on Mr. Fox's application.
Judge:
Yes. We'll mark it Exhibit 1 on his adjournment application today, Madam Registrar. Thanks. And this -- I understand, Mr. Fox, that this is part of the reason for your adjournment, but you said there's other parts saying -- basically saying some of the requests you just haven't received an actual response yet --
Fox:
That is correct. There are many outstanding requests, and I realize that not all of those requests are expected to provide me information or evidence that I would intend to use as exhibits at the trial. Some of it is fishing. I'm searching for evidence that I know is out there. I'm trying to find it.
Judge:
Well, if it's things that you know -- you say you know are out there?
Fox:
Yes.
Judge:
Then your characterization of fishing is -- you know, fishing is seeking stuff that you don't know exists.
Fox:
Right. I'm sorry.
Judge:
You say you know it exists, and how do you know it exists?
Fox:
I'm very confident, I would say. I don't know, but I'm extremely confident that the evidence exists out there.
Judge:
Okay. One thing that you say you're sure of is that you have -- you met with Canada Border Services agents on March 15th, and there should be some record it that.
Fox:
That I absolutely know without any doubt, yes, and the reason I'm so confident on that is partially because the FOSS, the Field Operation Support System which has these log entries that show that my name was searched on that day, doesn't belong to and is not maintained by CBSA. It belongs to IRCC, and so I had also submitted a request to them, the same request I submitted to CBSA. But the reason that's significant is because the records then are out of CBSA's control in the sense that CBSA would not be able to destroy them before producing them to me, because they belong to IRCC. Yeah, and I think that's the end of that document.
Judge:
Yes --
Fox:
But I wanted to mention also -- oh. So in response to Mr. Wolfe's position or the Crown's position, I think -- I think that to an extent his argument that this document from CBSA is possibly somewhat vague or ambiguous really just contributes to the need for an adjournment at this point, because as I had mentioned I have already sent a response to Ms. Belic at CBSA. I mailed it yesterday, asking her to provide further clarification, and this was one of the documents I was hoping that might be attached with this for the court and Mr. Wolfe's benefit, but in here I say "I am hoping however that you may confirm one point I'm unclear on. I understand the request disposition," and then in quotation marks " 'nothing disclosed, exempted' to mean matching records were found but are being withheld pursuant to section 22(1)(b)."
Judge:
Yes, that's a fair inference.
Fox:
Is that correct? And so I'm asking her if she can just confirm that for me, and that's what I had intended or hoped to bring to the court and to show the court and Mr. Wolfe rather than just this document here.
Judge:
Yes.
Fox:
So I would at least like to be able to give her some time to respond to that. I mean, she may very well respond back that no, no records were found, but --
Judge:
Okay. All right.
Fox:
But I wouldn't think so, and that would be all that I could say on it.
Judge:
Thank you, Mr. Fox.
Fox:
Thank you.
Judge:
Was there a -- I mean, there was a previous, obviously a -- yes, here it is. I was just looking for a prepared transcript of my ruling on your previous adjournment application that you made October 8th, 2019.
Fox:
I believe October 29th was the last one.
Judge:
I've got a transcript here that's dated October 8th, 2019, a ruling on an adjournment application, and there is -- yes. And there are some comments that I make in that ruling that are applicable, I guess, to this request as well. For instance, the summary that I make with respect to the evidence of Officer, Constable Kirstie Brown and her inquiries of Canada Border Services.
So what I have here is Mr. Fox making another, yet another application for an adjournment. He's been -- and again, he's in custody. He's been detained on this matter. Allegation is that he failed to report and went across the border and wasn't supposed to. He says that -- and he's maintained all along that presented himself to Canada Border Services, and was either deemed admissible, deported, asked to leave, whatever characterization you want to put on it. He says he had some dealings with Canada Border Services on March 15th, 2019, and that contact with those officers is relevant to whether he has a reasonable excuse for going across the border and therefore not reporting subsequently.
So he says he's made requests from Canada Border Services, and back in October it was indicated, and this was some time after the August hearing dates, that he'd made a request under the Privacy Act, the federal Privacy Act of Canada Border Services, seeking essentially the same material as the officer herself, Kirstie Brown had sought from the Canada Border Services, with respect to his dealings or alleged dealings and interactions with Canada Border Services on March 15th.
We noted at that time that they had acknowledged that request. This is back in October. They had asked for an additional 30 days. We're now on December 11th, 2019, and there's been some responses to his requests and some that have not been responded to yet, so the whole -- so the response that he did receive in respect to a very simple request, it seems, and that is to seek some log entries with respect to his alleged again visit to Canada Border Services agents on March 15th, 2019 between 4:00 and 6:00 p.m. Pacific Time, and he requests the, those -- the log entries from the Douglas border crossing in Surrey, B.C.
The response from Canada Border Services, and this is Exhibit 1 in this adjournment application dated -- and the response is dated November 28th, 2019. Under the line where it says request disposition the words "nothing disclosed," and then in brackets (exempted). Then it says the following line indicates which section of the Act were invoked by the agency if the information was not all disclosed to you. So the inference is there's some information, but it's just not being disclosed for some -- some basis. That basis which is being raised by Canada Border Services under a box called Summary of Exemptions/Exclusions refers to 22(1)(b) of the federal Privacy Act, and they paraphrase it as "investigative techniques or plans for specific lawful investigations."
22(1)(b) of the Canada Privacy Act says a disclosure of the material could reasonably be expected to be injurious to the enforcement of any law of Canada or province or the conduct of lawful investigations, including without restricting the generality of the foregoing, any such information (1) relating to the existence or nature of a particular investigation; (2) that would reveal the identity of a confidential source of information; or (3) that was obtained or prepared in the course of an investigation.
Well, none of that particularly makes any sense in the context of what we're dealing with, which is a criminal procedure, and all we're trying to find out is information relating to Mr. Fox's dealings with Canada Border Services on March 15th. They thwarted Kirstie Brown, Constable Kirstie Brown's attempts to gain that information, essentially were unresponsive to those requests. The -- and now Mr. Fox is being denied for a reason under the Privacy Act which relates to investigative techniques or plans for specific lawful investigation.
He is entitled to relevant disclosure that would be of some or possible assistance to his defence, and so he's entitled to explore these avenues. It's just beyond me why Canada Border Services is not cooperating with either the investigating officer's or Mr. Fox's request. I understand that Crown counsel hasn't made any inquiries because they -- Mr. Wolfe's position is that it's irrelevant and we don't need to go down this path, but I think it is relevant.
I'm going to grant the adjournment request for Mr. Fox so that he can get this information that he's seeking. I'm going to ask that a transcript of the proceedings today be prepared and forwarded to Mr. Fox and Mr. Wolfe for the Crown and a copy for the file, and Mr. Fox may be able to use those remarks which I -- I always think remarks have more force than they actually do, unfortunately, but maybe he'll be able to use the comments from the court with respect to the importance of having this information before the courts in a serious criminal prosecution that Mr. Fox is facing.
They may, hopefully that will have some impact on what appears to be unnecessary roadblocks, unnecessary obstructions that are being put up by Canada Border Services for information that is relatively benign and simple to obtain.
Okay? Going to have to -- when are we going to set this thing for again?
Wolfe:
Yeah, I thought about that. So I need to know from -- we need to know from Mr. Fox whether we're talking about weeks or months and then of a time estimate, because then we're into his case, but then there would be submissions at the end of it.
Judge:
Another two days?
Wolfe:
Yeah, it could be, and here's my idea. Mr. Fox -- I can go fix them today. Mr. Fox can appear by video tomorrow just to confirm a date. He's coming in -- a personal appearance is not important.
Fox:
Is it -- is it necessary for me to have to appear, though? Can you just notify me by mail?
Judge:
No.
Wolfe:
No. Make a video appearance.
Judge:
You have to appear to actually hear the date.
Wolfe:
No, you do. You do.
Fox:
Sure.
Wolfe:
The video appearance in 307 tomorrow.
Judge:
Video appearance in 307 tomorrow, Madam Registrar --
Wolfe:
Sure.
Judge:
-- at 9:00 a.m. just to confirm the date.
Clerk:
Yes, Your Honour.
Judge:
Thanks.
Wolfe:
Yeah. And then -- but how much time are we talking? Like February, March, April, January? It's like Mr. Fox has to let the court and the Crown know how far ahead am I booking for two days, when -- when His Honour's available?
Judge:
What's the timeline, Mr. Fox?
Fox:
Obviously at this point all I can do is guess. I mean , I -- none of us can say how long it's going to take for CBSA to respond or to do whatever they have to do or want to do. I mean, so far we've been doing about two months at a time. I have no objection to that. With the holidays coming I -- things are going to be moving slowly, so --
Wolfe:
So here's the problem. Well, two months from now, and then of course because His Honour Judge St. Pierre has other cases and long ones that may go for a week or two weeks or even a month, the two months will come up and there may be nothing.
Fox:
Right.
Wolfe:
So really take a -- may I suggest, Your Honour, to Mr. Fox, to take a conservative estimate, because if we lose the next two days given the court being busy we'll be looking further out, so it's like let's have a good crack at getting the two days to go, okay?
Judge:
So you're suggesting somewhere in January?
Wolfe:
No. I mean way further than that.
Judge:
You're suggesting -- okay.
Wolfe:
Further than that actually. Does that make -- you understand my point?
Fox:
I understand.
Judge:
It's just that I'd like to -- you know, we want to keep this thing moving and quite frankly, Mr. Fox, I would entertain an application, you khow, for you know, for -- it may be next time that there -- if you don't get any results you might have to make an application for a subpoena. But in any event --
Wolfe:
Well, on that point if he -- and that's a very -- that's a really interesting issue, Your Honour, from Crown's perspective. Let's suppose we book two days --
Judge:
Mm-hmm.
Wolfe:
-- and it's March, just to illustrate the point. Between now and March, let's suppose at the end of January Mr. Fox hasn't any -- and decides he wants to subpoena. I should know. I can call it ahead. You can make the -- he can make his application in front of you with sufficient notice, 'cause I have no idea --
Judge:
Absolutely.
Wolfe:
No idea what CBSA's going to do.
Judge:
There'd have to obviously notice of the application and a fair chance to respond to it, obviously --
Wolfe:
Right.
Judge:
Now, here's my suggestion, is that you set three days, you know, somewhere near the end of February or March, but that we have an -- maybe an interim day at the end of January just to see where you're at.
Fox:
Okay.
Judge:
Can we do that?
Wolfe:
Sure.
Judge:
Just an interim date, because it may be -- who knows, you might get a response in the next couple of weeks and then you're sitting there for three months --
Wolfe:
Right.
Judge:
-- and not --
Wolfe:
Yeah, understood.
Judge:
Okay, we'll do that.
Wolfe:
Three days end of March, interim date end of January. If Mr. Fox strikes gold, so to speak, about --
Judge:
Yes.
Wolfe:
-- who he wants to subpoena or not, advise Crown by letter. I can call the matter ahead. The application can be made in front of Judge St. Pierre, and with sufficient notice 'cause I have no idea whether CBSA's going to respond to it or not.
Judge:
Yes.
Wolfe:
Okay.
Judge:
Fair enough.
Fox:
In the event that CBSA finally responds in some way, for example, they provide a written admission or an affidavit that I was denied admission or removed on that date -- hmmm.
Wolfe:
Well, that's a bit speculative. Why don't we do this a step at a time? I have no idea.
Judge:
You can always bring the matter before the court on short notice --
Fox:
Sure.
Judge:
-- to the Crown. You can -- you know, you've done it before. You've just come -- you'll appear before me.
Fox:
Right.
Judge:
If that eventuality happens.
Wolfe:
And could I point out, Your Honour, that Mr. Fox asked for letters --
Judge:
Yes.
Wolfe:
-- after September 22. I've handed him paper copies of September 22, October 31st, November 6th and November 7th. Those are the letters that we had and he has hard copies.
Judge:
Thank you.
Wolfe:
I will also once we fix a date, advise the warden that the single bunking should continue.
Judge:
Thank you for that as well.
Fox:
Thank you.
Judge:
And that transcript.
Wolfe:
Can we get that expedited?
Judge:
Can we get it expedited? Yes.
Clerk:
Yes, Your Honour.
Judge:
Okay. Thank you.
Fox:
The last thing I would just like to say for the court's benefit. You had mentioned that back in October I had made reference to the ATIP request that I'd made in August to CBSA that we were waiting for a response.
Judge:
Yes.
Fox:
We had received the interim response. Well, I did eventually receive the response from them, and because I had referred to it as the Peace Arch border crossing, not the Douglas border crossing, they responded saying it does not exist, so then I had to resubmit it again.
Judge:
Yes, okay. All right. So the -- I'll leave it to Mr. Wolfe to set the new dates and then we'll see you back, hopefully sooner than later.
Fox:
Thank you.
Judge:
All right. All right. Any questions, Madam Registrar?
Clerk:
No, Your Honour.
Judge:
Thank you. All right.
(PROCEEDINGS ADJOURNED TO DECEMBER 12, 2019, AT 9:00 A.M.)
Transcriber: S. Ward