Respondent's (Crown) Factum - Appeal of 244069-7-B

Before the trial started, Mr. Johnson spoke to Mr. Fox about admissions. He confirmed with the appellant that the Crown was calling DC Dent as a witness, as per their previous discussions. The appellant expressed no surprise at this information. The appellant also agreed that, since DC Dent would be testifying, the Crown did not need to play the video of the interview as part of its case. The appellant expressed no concern that he had not received the electronic disclosure until November 23, or that he did not have a transcript of his interview with DC Dent (Johnson Affidavit, ¶33).

During this same discussion, the appellant agreed to permit Mr. Johnson to lead the evidence of his statements at the interview through DC Dent, instead of by calling DC Dent and also playing the entire interview in court. Mr. Johnson made this request because the interview was over an hour long and, for the purposes of the Crown case, he was content to rely on the statements that DC Dent had mentioned in his Task Action Report. But Mr. Johnson would have played the video of the entire interview at the trial, had the appellant asked him to do so (Johnson Affidavit, ¶34).

The matter was called, with Judge Rideout presiding, at which point the appellant confirmed he was waiving his right to counsel and would thus be acting on his own behalf. Judge Rideout asked the appellant whether he had full disclosure from the Crown. The appellant responded: "I don't know if it's full but I do have disclosure". He did not complain about the timing of the disclosure (T. 1/9-31).

Judge Rideout told the appellant that, while he could not advocate for him, he had to protect the appellant's interests, and if the appellant had any concerns to raise them as the trial proceeded. The appellant indicated that he understood. He asked for a pen and water, and Judge Rideout took steps to provide these things to him (T. 1/32-2/26)

Mr. Johnson then told Judge Rideout that he had met with the appellant that morning, at which time the appellant had indicated that he was prepared to admit that he was the subject Judge Phillips' probation order made on August 19, 2020, which took effect on his release from custody on August 20, 2020 (T. 2/42-3/6).

Mr. Johnson also told Judge Rideout that the appellant had agreed that it was not necessary for the Crown to play the recording of the interview conducted by DC Dent, and that the Crown intended to call DC Dent to give evidence regarding the substance of that interview. Judge Rideout questioned the appellant to confirm that he took no issue with the admissibility of this interview on Charter grounds. He also asked the appellant whether he had received disclosure of this interview, to which the appellant replied, "That is correct". The appellant said nothing to indicate he had suffered prejudice arising from the timing of that disclosure (T. 3/19-47).

Mr. Johnson then called DC Dent as a witness, at which point the appellant objected to DC Dent being a witness on the basis that he had received no notice of this despite "multiple requests" for a witness list. Mr. Johnson indicated that he had provided the appellant with full disclosure, including the evidence of DC Dent, and submitted that he had thus fulfilled the Crown's obligations in this regard (T. 4/5-25). As noted at paragraph 21 above, DC Dent was the first officer on the police witness list included in the disclosure, although this point was not made by Mr. Johnson in his brief submission.

Judge Rideout asked when the disclosure was provided to the appellant. Mr. Johnson said that it was made in two components, an initial disclosure and then a subsequent disclosure on "Monday" (i.e., November 23, which was three days before the trial) (T. 4/26-32). Judge Rideout then stated:

THE COURT: Normally, Mr. Fox, this is what's called an ambush and it's certainly frowned upon; that if you had disclosure which included the package with the name of Detective-Constable Dent so you knew what was coming. On the day of trial it's usually not well received by a trial judge as the sort of thing that's -- unfortunately it should have been brought in advance of the trial date as an objection. What would happened if the -- the most that would have happened is a judge would have adjourned it to another date to make sure you understand what's going on. It wouldn't defeat the case. It would just simply cause an adjournment, that's all.

[T. 4/33-46)

The appellant replied, "okay", at which point Judge Rideout invited DC Dent to take the stand and be affirmed (T. 4/4 7-5/6)

While the appellant objected to DC Dent testifying on the basis that he had not received a witness list, he did not say anything to suggest that the timing of the disclosure had caused him prejudice, not even when that timing was mentioned by the Crown in response to questioning from Judge Rideout.

DC Dent testified that on September 15, 2020, he reviewed the appellant's probation order, a condition of which required the appellant to remove the Website. The next day he reviewed the Website and printed its home page, which included a letter to the Attorney General David Eby (T. 6/4-7/12, 7/36-43).

Judge Rideout interjected to confirm yet again that the appellant had received disclosure, including of the printout of the Website's homepage. During this brief exchange, the appellant raised no concern about the timing of disclosure (T. 7/13-19).

DC Dent resumed testifying, indicating that the Website stated that the letter to David Eby was posted August 19, 2020, at 1:53 p.m. He added that he was not a technical expert and did not know how to update websites, and said, "I just see a date on the top of the document there." He could not say if the date was accurate (T. 7/36-8/17).

The letter to David Eby was written in the first person and ended with the salutation "Sincerely, Patrick Fox". It stated in part (emphasis added):

Anyway, on August 19, 2020 I had a trial for a probation violation for putting this website back online (publishing, disseminating information about Capuano). And even though the Crown's (Chris Johnson) only witness (VPD Detective Jennifer Fontana) and Crown himself both admitted they had no knowledge or evidence of WHEN I published the material; and even though the material was published BEFORE the probation order took effect (2018-12-30) and therefore it could not, possibly, violate the probation order because the period of probation had not yet begun; nevertheless, I was convicted. I was sentenced to six months in jail (although I had already been in jail for 17 months anyway) and a new probation order with one condition that I take down the website within 48 hours of my release. I told the judge "that's just not going to happen."

I told Mr. Johnson all this is doing is showing the world how ineffectual and impotent the Canadian justice system is. They can't even make a little pissant nobody like myself take down a website. They can lock me up for te [sic] rest of my life, but I will never take down the website.

Well, 48 hours has passed and the website is still online. The R. v. Fox section, with all the proof of the corruption and collusion that Crown Counsel Mark Myhre, defence counsel Tony Lagematt, and Justice Heather Holmes engaged in is still there. By the time you read this I will probably be back in custody, but in case you haven't figured it out, I just don't give a fuck.

[Exhibit 1, AB p. 5; T. 8/20-9/17]

Next, DC Dent testified that he had interviewed the appellant on September 17, 2020, after the appellant had been taken into custody (T. 9/39-1 O; RFC, AB p. 9, ¶6). The following exchange then took place:

THE COURT: Mr. Fox, from Mr. Johnson's opening you're not taking issue with the interview, but if you are concerned about that conversation I can declare a voir dire which is a trial within a trial, and Mr. Johnson can continue with it. Then at the conclusion of the voir dire I'll determine whether or not the conversation is admissible. Would you prefer to go that route?

THE ACCUSED: No, I have no concerns with it.

THE COURT: You're sure of that?

THE ACCUSED: Yes.

THE COURT: All right. Thank you.

CNSL C. JOHNSON: And with respect to the interview, Your Honour, I've already indicated there is an audio version. There is not a transcript version and so Mr. Fox has indicated that I can simply highlight the statement, and then of course, he's entitled to ask any questions he wants about it.

THE COURT: Sure. Thanks. So you're admitting that you freely and voluntarily gave that statement to the detective-constable?

THE ACCUSED: Yes.

[T. 10/15-37]

DC Dent testified that he had prepared a Task Action Report that acted as a "recording" for his own purposes of what took place at the interview. Mr. Johnson indicated that this Task Action Report had been disclosed, and verified this with the appellant. The appellant did not suggest that he had not reviewed this disclosure or had suffered prejudice arising from its timing (T. 10/39-11/14).

Having refreshed his memory from the Task Action Report (T. 11/26-31), DC Dent testified that the appellant made the following comments during the interview:

DC Dent did not have a note as to how long the interview lasted, but recalled it being about an hour and a half (T. 15/36-43; RFC, A.B. p. 9, ¶8 & p. 11, ¶11).6

DC Dent first saw the Website on September 16, 2020, and did not visit it from August 20 to 22. He had no information as to whether it was taken offline during this latter period; his involvement was limited to preparing to interview the appellant, which included looking at the Website the day before (T. 16/16-26, 16/42-44, 21/20-22/10).

DC Dent did not recall if he asked whether the appellant had taken the Website down between August 20 and 22, and his notes did not indicate that he had done so. DC Dent's notes did, however, reflect that the appellant had said that if he had taken the Website down in that 48-hour period, then put it back up, he would have complied with the probation order (T. 20/4-21/77).

Asked if the appellant had said whether he took the Website down at any time, DC Dent testified that the Website was still up on the day of the interview, so he did not ask the appellant this question because he knew the Website was still up (T. 21/8-19).

DC Dent did not know the identity of the Website's registered owner, including from August 20 to 22, nor did he know who had administrative access to the Website, and he had not contacted its hosting provider (T. 16/27-41; RFC, A. B. p. 11, ¶12).

Asked who wrote the post, "Dear David Eby", DC Dent noted that the signature block contained the name Patrick Fox. Asked whether someone else could have written this name, DC Dent recalled that during the interview the appellant had indicated that Ms. Capuano could have written his name there (T. 16/45-17/21).

DC Dent did not know whether the "Dear David Eby" post was written and put on the Website before the appellant's release from custody on August 20. Asked what relevance this post had regarding whether the Website was taken down in the 48 hours after August 20, DC Dent said the only relevance he saw was that the letter said it would never be taken down (T. 17/22-32).

Asked if the appellant had said that he still owned or controlled the Website after August 20, DC Dent testified that the appellant would make statements to the effect that he had more information to put on the Website, then would correct himself and say that, in stating "I", he meant "somebody". DC Dent did not recall if the appellant said that he had transferred ownership or control to another party at some point, but he did recall the appellant saying that if somebody was assisting with the Website that person would be outside of Canada (T. 17/39-18/2, 18/32-19/2; RFC, A.B. p. 11, ¶12).

DC Dent did not know if the access logs for this Website specifically, as opposed to websites generally, were publicly accessible so anyone could see them (T. 19/41-20/3).

Before closing the Crown case, Mr. Johnson obtained an adjournment to find out from the appellant if he wanted the Crown to call further evidence (T. 23/29-24/43). In their ensuing discussion, the appellant did not raise any concerns about the timing of the disclosure, the absence of a transcript of the interview, or Mr. Johnson's decision to lead the evidence of his statements solely through DC Dent, instead of playing the interview in court. Had he raised these or any other concerns, Mr. Johnson would have conveyed them to Judge Rideout or encouraged him to do so himself (Johnson Affidavit, ¶36)

Following the adjournment, Mr. Johnson told Judge Rideout that the appellant was not asking the Crown to call any further evidence, and that there was nothing further that the appellant wanted to explore (T. 23/29-24/43).

The appellant called no evidence in response to the Crown case (T. 25/29-47).

Mr. Johnson conceded that there was no evidence as to who owned the Website, but argued that the appellant's statements at the interview showed he was able to comply with Condition 4 of the probation order but had refused to do so (T. 26/9-22, 26/28-27/41).

Mr. Johnson also submitted that Condition 4 did not allow the appellant to remove the Website at some point within 48 hours of his release, then put it back online after the 48-hour period was over. Rather, he was required to remove the Website once and for all, yet as DC Dent testified it was still online on September 16 (T. 26/23-27). Alternatively, given the appellant's admissions at the interview, and the nature of the content on the Website's front page, it was speculative to suggest the Website was taken down during this 48-hour period, then put back online after the period ended (T. 30/5-15).

The appellant argued that the Crown had not proved who owned and controlled the Website, and that absent ownership or control he would not have been able to take it down (T. 28/3-14). He further noted that in the interview he never said he was the person maintaining or publishing the Website (T. 29/15-20).

The appellant also submitted that there was no evidence to show the Website was not taken offline within 48 hours of his release, then put back online. He said that if this had happened, he would have complied with Condition 4, which only required that the Website be removed during that 48-hour period, and did not prohibit him or anyone else from later putting it back online (T. 28/15-37, 29/42-47).

Regarding the Website's access logs, the appellant claimed they were publicly available on the internet (T. 28/38-42).7 As for his comments to DC Dent about having more material to add to the Website, he submitted that he would be allowed to do so after the probation order expired, and so this statement was not incriminating (T. 28/42-29/14).

After reviewing DC Dent's testimony, Judge Rideout found him to be credible and reliable. But Judge Rideout noted that it was still necessary to determine whether the Crown had proved the offence, and set out the parties' positions on this point. He concluded that, despite its reference to 48 hours, Condition 4 required the appellant to take all necessary steps to ensure the Website was no longer available on the internet. Yet DC Dent accessed it on or about September 15 [sic],8 2020 (RFC, AB pp. 9-13, ¶6-18). Judge Rideout thus convicted the appellant, concluding :

There were statements made by Mr. Fox that clearly implicated him beyond a reasonable doubt in relation to access to the website, social media, or other publication which was prohibited by Judge Phillips. What happened within forty-eight hours remains uncertain and perhaps only speculation as to what took place, and I am not going to speculate what happened. The point is that the information contained in the website was available via the internet between the dates as set out by the Crown, being the 19th of August 2020, and the 16th day of September 2020. It is more than clear that it was the accused who was involved in that website. Ownership aside, he was inputting the information and from his own mouth himself, essentially convicted himself.

[RFC, AB p. 13, ¶9-20).

The Crown must make timely disclosure, so that the accused has sufficient opportunity to respond to the prosecution case. But to obtain a remedy for late disclosure, the accused must show prejudice to the ability to make full answer and defence. The trial judge is best positioned to determine if this standard is met and, if so, what remedy is appropriate. Where the trial has not started, an adjournment will usually cure the prejudice, but if not, or if the integrity of the justice system has been compromised, it may be necessary to exclude the evidence (R. v. Bjelland, 2009 sec 38, ¶20-27; R. v. Vallee, 2022 BCCA 11, ¶49-50, 57-58; R. v. Dixon, [1998] 1 S.C.R. 244, ¶23-24, 31-33).

It follows that the defence must be diligent in raising disclosure concerns at trial. The defence cannot, for instance, stay passive if aware that the Crown has failed to disclose relevant material, but must diligently pursue disclosure with the judge. Otherwise, an appeal court is unlikely to find that the failure to disclose affected trial fairness, and may also infer that the decision not to pursue disclosure was strategic (Dixon, ¶37-38, 55-56). The same approach should apply to late disclosure. That is, the defence must be diligent in seeking a remedy at trial. Indeed, raising the issue for the first time on appeal arguably requires leave of the court (R. v. Lilgert, 2014 BCCA 493, ¶14-20, leave refd, [2015] SCCA No. 52; R. v. Trieu, 2010 BCCA 540, ¶56).

The assessment of due diligence may need refinement for a self-represented accused (R. v. Cathcart, 2019 SKCA 90, ¶76). For example, it may be difficult for a self-represented accused to proactively seek disclosure while in custody (R. v. Tossounian, 2017 ONCA 618, ¶19). The trial judge's duty to assist a self-represented accused may also come into play (Cathcart, ¶76-82; Tossounian, ¶32-39).

Nonetheless, a self-represented accused's failure to raise a disclosure issue, or their agreement to handle it in a certain way, may indicate an absence of prejudice, or undermine the reliability or credibility of their fresh evidence on appeal (Cathcart, ¶42-50; R. v. Leno, 2021 BCCA 200, ¶59-60, 71 ). Furthermore, an accused who decides to proceed without counsel cannot overturn a conviction simply because they did not conduct the defence to their best possible advantage (R. v. Walkins, 2005 NSCA 2, ¶69-70, 78; R. v. Romanowiz, 1999 CanLll 1315, ¶27-33).

Contrary to the appellant's submission, the timing of the disclosure did not undermine his ability to make full answer and defence. This is so for numerous reasons.

For starters, and contrary to the claim in his factum (AF ¶69), the appellant knew the interview would be led as evidence. He said so himself at the interview, in explaining why he was refusing to confirm or deny certain things (Supp. AB, pp. 113/11-22, 135/7-32, 149/23-150/3), and at times seemed to directly address the court by looking at the camera while speaking (Supp. AB, pp. 147/8-23 (Video, Tab B, 8:32:20 a.m. fwd.), 148/16-20 (Video, Tab B, 8:32:50 a.m. fwd.)). Mr. Johnson also told him this before the trial date was set, and said that DC Dent would be a witness. The appellant's October 31 letter to Mr. Johnson confirms that he believed the Crown case would be based solely on his comments at the interview and the testimony of one or two officers. Indeed, in this letter the appellant said he did not need disclosure, or at least had no concerns about its timing, if his belief about the nature of the Crown case was correct, which it was.

That the appellant had no concern that the timing of disclosure might harm his ability to make full answer and defence is underlined by his failure to raise such a concern at trial, despite the sufficiency/timing of the disclosure, including regarding the interview, being mentioned on several occasions (T. 1/28-31, 3/19-38, T. 4/5-5/6, 7/11-26, 10/39- 11/3). The failure to raise this concern takes on added weight given that:

The appellant's claim that prejudice to his ability to cross-examine DC Dent was heightened because there was no transcript of the interview, and the video was not played in court (AF ¶70-71, 76, 90-98), is belied by his failure to complain about the lack of a transcript and his agreement to have the evidence about the interview led through DC Dent's testimony (T. 3/19-47, 10/15-37). Importantly, there were sound tactical reasons for the appellant to agree to this approach, including:

As it turned out, the appellant conducted a capable cross-examination of DC Dent that focussed on the narrow issues in dispute. He did not ask to review the video of the interview to assist in this cross-examination. He did not complain about the lack of a transcript. And he did not seek to have the video played, not even when Mr. Johnson asked whether he wished the Crown to call further evidence prior to closing its case.

Finally, there is no reasonable possibility the appellant could have advanced his defence more effectively had he had further time to review the audio/video of the interview. Condition 4 required him to take the Website offline within 48 hours of his release from custody. He thus had only two defences: first, that he was unable to take the Website offline; or second, that Condition 4 allowed him to take the Website down, then put it back up, and it was reasonably possible that this is what occurred. Neither of these defences could meaningfully be advanced by cross-examining DC Dent on matters additional to those raised by the appellant in the cross-examination that took place. In particular, a review of the video makes plain that, contrary to the appellant's claim on appeal (AF ¶76), there is no reasonable possibility he could have cross-examined DC Dent to show that the statements relied on by the Crown from the interview were made jokingly and thus had no probative value regarding the issues in dispute.

Provided the Crown's Stinchcombe obligations are met, the accused's right to make full answer and defence is not breached simply because the Crown has not disclosed its intention to call a witness. It is nonetheless good practice for the Crown to provide a witness list, certainly in more complex cases with multiple prospective witnesses, so as to reduce the risk that the accused will require an adjournment to properly prepare to defend the case. See R. v. Pinkus, [1999] O.J. No. 5464 (S.C.J.), ¶8-11; R. v. Michaels, 2000 BCSC 1785, ¶8, 23; R. v. Fiddler, 2012 ONSC 1785, ¶28, 31, 47; R. c. Gagnon, 2005 CanLll 18415 (Q.C. C.Q.), ¶9-21, 38-44; R. v. Browne, 2017 ONSC 5047, ¶6; R. v. Banks, 2022 NSSC 77.

Mr. Johnson did not impair the appellant's ability to make full answer and defence by "withholding" that he intended to call DC Dent as a witness, for some or all of the following reasons.

First, civilian and police witness lists were included in the electronic disclosure provided to the appellant on November 23, and the first name on the "police witness list" was DC Dent (Supp. AB., pp. 11-12).

Second, even a cursory review of the (frequently repetitive) electronic disclosure package reveals that none of the seven other people named on these witness lists had relevant evidence to give on the issues disputed at trial. Those other people were: (a) five police officers who obtained or executed a production order and/or a search warrant, neither of which yielded any relevant evidence, or who arrested the appellant (Supp. A.B., pp. 16-22, 24-28, 38-79); (b) a Belkin House worker upon whom the production order was served (Supp. A.B., p. 15); and (c) Ms. Capuano, who as a "will say" written by a VPD officer indicates had no involvement in the breach of probation (Supp. A.B., p. 14).

Third, DC Dent's inclusion on the police witness list confirmed what the appellant already knew: that the Crown case would include statements he made in his post-arrest interview. His belief in this regard is evident both in comments he made at the interview, and in his October 31 letter to Mr. Johnson. In fact, in this letter the appellant indicated that he only needed a witness list (and disclosure) if the Crown intended to rely on evidence other than his "admissions" and the testimony of one or two police witnesses.

Fourth, prior to the trial date being set on October 20, Mr. Johnson orally confirmed with the appellant that DC Dent would be a witness and that the Crown would be leading evidence of statements he had made during the interview. Indeed, the appellant told Mr. Johnson that he wanted DC Dent to be called as a Crown witness.

Fifth, the appellant received full disclosure of DC Dent's evidence as part of the electronic disclosure package, and conducted a competent and well-organized cross-examination of DC Dent, which focused on eliciting the points that the appellant believed supported the arguments he would be making in closing submissions.

Finally, if the appellant was at truly concerned about DC Dent testifying, he could have asked that the video of the interview be played, instead of agreeing to the Crown's proposal that his statements be elicited through DC Dent's testimony. Or, he could have asked for an adjournment, which his October 31 letter shows he knew was an option if taken by surprise by a Crown witness. But, in any event, for the reasons described at paragraph 77 above, the prosecution case was overwhelming, and there was no reasonable possibility that playing the video instead of relying solely on DC Dent's evidence, or having more time to prepare, would have led to a different result.

The doctrine of abuse of process permits the courts to dissociate themselves from the unacceptable conduct of investigatory and prosecutorial agencies where that conduct egregiously and seriously compromises trial fairness and/or the integrity of the justice system (R. v. Anderson, 2014 SCC41, ¶50).

The test for determining whether an abuse of process warrants a stay of proceedings involves assessing the following criteria:9 R. v. Moazami, 2021 BCCA 328, ¶45

The appellant has not shown an abuse of process, because there is no evidence to support his speculative contention that Mr. Johnson's impugned conduct was the result of a deliberate attempt to coerce him into either pleading guilty, seeking an adjournment, or proceeding to trial unprepared. Plus, Mr. Johnson's evidence is that he did not act for any of these purposes, or otherwise conduct himself in bad faith, in respect of the disclosure or the identities of the prosecution witnesses (Johnson Affidavit, ¶51).

Barring the application of an exclusionary rule, evidence is admissible if it is relevant to a fact that is material and in dispute. Relevance is established if, as a matter of logic and human experience, the evidence tends to make more or less probable the existence of that material and disputed fact (R. v. Wiens, 2016 BCCA 34, ¶35-36).

The "Dear David Eby" letter was relevant, and thus admissible, for two reasons. First, there was a reasonable basis for concluding the appellant wrote it, and the letter expressed a firm intention never to take the Website down. This intention, in turn, made it more likely that the appellant failed to remove the Website because he refused to do so, not because he was unable to do so. The letter thus helped to disprove any suggestion that the appellant had a reasonable excuse for not removing the Website.

The appellant's suggestion that the letter was irrelevant because he was still in custody when it went up on the Website, and thus could not have been its author, is unconvincing for the following reasons:

The "Dear David Eby" letter was also relevant, and so admissible, because its contents made more likely the conclusion that the Website was not taken offline during the 48 hours after the appellant's release from jail. In the letter, he says that: (i) although Judge Phillips ordered him to take the Website down within 48 hours of his release, he told Judge Phillips that this was not going to happen; (ii) 48 hours has passed and yet "the website is still online". (Of course, the Crown's main argument, and Judge Rideout's basis for convicting, was that the probation order required that the Website be taken down for the duration of the order, and not merely for a brief period.)

Trial judges are accorded substantial deference regarding findings of fact, in particular regarding a witness's credibility, and such findings will not be overturned on appeal absent palpable and overriding error (R. v. Ceal, 2012 BCCA 19, ¶24-27; R. v. Dhaliwal, 2021 BCCA 327, ¶35-36; R. v. Clark, 2005 SCC 2, ¶9).

Judge Rideout's reasons for judgment reveal no palpable and overriding error in his finding that DC Dent was a reliable and credible witness. The absence of such an error is, by itself, enough to justify rejecting this ground of appeal.11

Moreover, and in any event, some of the transcript excerpts the appellant relies on to attack Judge Rideout's finding do not, in fact, reveal any inconsistency in DC Dent's testimony (e.g., AF ¶113, lines 3-8 & 12-20). Plus, testimony that he claims was evasive does not appear as such in the transcripts (AF ¶111, lines 6-9; AF ¶112). And to the extent any inconsistencies might be apparent, they were minor and had no bearing on the disputed trial issues (e.g., AF ¶11 O; AF ¶111, lines 1-6; AF ¶113, lines 8-12),12 as reflected in the appellant's failure to put them to DC Dent in cross-examination, or, more importantly, to rely on them in his closing argument (T. 28/1-29/47).

Indeed, the appellant did not challenge DC Dent's reliability or credibility at all in his closing submissions, which is hardly surprising given that the accuracy of his testimony was not in material dispute. Rather, the key issue at trial was whether the Crown had established a breach of Condition 4 of the probation order given: the public availability of the Website on September 16, 2020; the appellant's comments at the interview; and the contents of the "Dear David Eby" posting.

A misinterpretation of a probation order constitutes an error of law. See Respondent's factum filed in R. v. Fox, CA46979, ¶68.

A court must interpret a probation order in its entire context, and in its grammatical and ordinary sense, harmoniously with the purpose of probation orders both generally and in the circumstances of the particular case. See Respondent's factum filed in R. v. Fox, CA46979, ¶53-56.

A mistake of law does not provide a mens rea defence to breach of probation, and thus a mistake about the legal scope or effect of a probation condition does not afford a defence. See Respondent's factum filed in R. v. Fox, CA46979, ¶52.

To repeat, Condition 4 of Judge Phillips' probation order stated (emphasis added):

Within 48 hours of your release from custody you will take all necessary steps to ensure that any website, social media page, or other publication, which you have authored, created, maintained or contributed to, which contains any information, statements, comments, videos, pictures which refer to or depict, by name or description, Desiree Capuano or any of her friends, relatives employers or co-workers, including the websites published under the domain www.desireecapuano.com and www.desicapuano.com are no longer available via the internet or by any other means.

[A.B. for CA46979, p. 40]

Condition 4 must be interpreted in light of the offences that led to its imposition. The appellant criminally harassed Ms. Capuano using a website that contained information that humiliated, degraded and intimidated her. He thereby caused her substantial harm. He had no insight into this offence at the time of sentencing, and Justice Holmes imposed a jail sentence low enough to permit a three-year probation order that could afford Ms. Capuano protection. However, the appellant breached that probation order by creating and publishing a new website (i.e., the Website) that contained the same information (and more). Then, when sentenced by Judge Phillips, he stated that, regardless of whether she imposed a probation order requiring him to do so, there was "absolutely no way" the website was "going to come down" or "go away" on his release from custody (CA46979, T. 53/31-47). He then wrote and posted (or had posted) the "Dear David Eby" letter, which stated that he would never take the Website down, and he subsequently repeated this sentiment in his interview with DC Dent.

In these circumstances, and given the plain meaning of the words used, the only reasonable interpretation of Condition 4 is that it required the appellant to take all necessary steps to ensure the Website was no longer available during the entire currency of the probation order, and that he do this within 48 hours of his release. This interpretation is consistent with the nature of the appellant's offences and his continued defiance of court orders seeking to protect Ms. Capuano from continued harm. By contrast, the interpretation of Condition 4 advanced by the appellant at trial and before this Court, which would permit him to take the Website offline for as little as one second, and then immediately put it back up, would result in an absurdity.

Alternatively, even if Judge Rideout erred in rejecting the appellant's interpretation of Condition 4, the error caused no substantial wrong or miscarriage of justice, and the proviso in s. 686(1)(b)(iii) of the Criminal Code applies, because a conviction was inevitable in any event.

This is so because, as Judge Rideout rightly intimated (RFC, AB p. 13, ¶19, 2nd sentence), given the evidence at trial it would be speculative, and thus improper, to base a reasonable doubt on the possibility that the appellant took the Website down during the 48-hour period after his release from custody on August 20, 2020, and then put it back up at some point before it was seen by DC Dent on September 16, 2020.

In this respect, it is notable that the "Dear David Eby" letter, which the appellant surely wrote, but at the very least fully endorsed, stated that:

Furthermore, in his interview the appellant told DC Dent that: (i) he was ordered to take the Website down but believed it was not illegal; (ii) the reason the Website had not been taken down was because it exposes misconduct and corruption; (iii) no one was going to take anything down from the Website unless the government admitted he did not commit criminal harassment and overturned his conviction; and (iv) he would never in his life take the Website down, and locking him up in jail would not change anything (see paragraph 45 above). And while he opined to DC Dent that no breach of the probation order would have occurred if the Website were taken down within 48 hours but later put back online, he did not tell DC Dent that this had occurred (see paragraph 48 above)).