Transcript of Trial Proceedings (2020-11-26)

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Synopsis

The prosecutor, Chris Johnson, withheld all of the disclosure material until three days before the trial, so there is no way I could have been ready. When this was brought up to the judge, he said I should have raised the issue earlier and that the start of the trial is not the time to raise disclosure issues. However, Johnson had also refused to schedule a pre-trial conference so that I could raise the issue before trial.

The prosecution called one witness, VPD Detective Kyle Dent, who was the detective that interrogated me. During his testimony, Dent contradicted himself on critical issues, a number of times.

Overall, Johnson and Dent completely misrepresented the statements I had made to Dent during the interrogation, and since I hadn't had time to review the video and transcript of the interrogation, I was completely unprepared to cross Dent on the gross misrepresentations he had made on direct.

At a subsequent trial in another matter (244069-8-B), where Dent was the Lead Investigator, I insisted he be called as a witness, and I confronted him on his perjurious testimony from this trial. Begrudgingly, he had to admit he did lie on the witness stand.

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Court of Appeal CA47391

COURT OF APPEAL

ON APPEAL FROM THE PROVINCIAL COURT OF BRITISH COLUMBIA, FROM THE JUDGMENT OF THE HONOURABLE JUDGE RIDEOUT, PRONOUNCED ON THE 26TH DAY OF NOVEMBER 2020, AND FROM THE SENTENCE PRONOUNCED ON THE 12TH DAY OF APRIL 2021.

REGINA

RESPONDENT

v.

PATRICK HENRY FOX

APPELLANT

TRANSCRIPT

Ministry of Justice, Solicitors for the Crown (Respondent)
Criminal Justice Branch, Criminal Appeals
6th Floor, 865 Hornby Street
Vancouver, B.C. V6Z 2G3
Phone: (604) 660-1126

David Layton, Q.C.

Patrick Fox, Appellant
Appearing on his own behalf

J.C. WordAssist Ltd. (Head Office)

111 Skinner Street, Nanaimo, B.C. V9R 5E8

Phone 250-754-7822

244069-7-B

Vancouver Registry

In the Provincial Court of British Columbia

(BEFORE THE HONOURABLE JUDGE RIDEOUT)

Vancouver, B.C.

November 26, 2020

REGINA

v.

PATRICK HENRY FOX

PROCEEDINGS AT TRIAL
AND SENTENCE

Crown Counsel: Chris Johnson, Q.C.

Appearing on his own behalf: Patrick Fox

219025_TRANSCRIPT

J.C. WordAssist Ltd. (Head Office)

111 Skinner Street, Nanaimo, B.C. V9R 5E8

Phone 250-754-7822

Vancouver, B.C.

November 26, 2020

Johnson:

Chris Johnson, Your Honour, appearing for the Provincial Crown and I've got conduct of number two on Your Honour's list, Patrick Henry Fox.

Judge:

Thank you.

Johnson:

Mr. Fox is in custody and he is unrepresented.

Judge:

I know. So if you can just position yourself, Mr. Fox. I've had you in front of me before on several occasions. I can't recall how many times. It's Judge Rideout presiding.

As you know, pursuant to section 7 of the Canadian Charter of Rights and Freedoms you have the right to life, liberty and security of the person contained as that, has the right to have legal counsel to represent you. You've acted on your own before but you know you are entitled to have independent legal advice and to have legal counsel represent you; is that correct?

Fox:

That is correct.

Judge:

You're waiving that right in relation to having counsel and you're prepared to act on your own behalf?

Fox:

Yes, I am. Thank you.

Judge:

You have full disclosure from the Crown; is that correct?

Fox:

I don't know if it's full but I do have disclosure.

Judge:

I have to protect your interests. I can't advocate for you but as we go through if there's a problem you can certainly raise your hand and we can hear any objection you might have or concern you may have.

Mr. Johnson, as an officer of the court, has an obligation to ensure the trial proceeds in a fair and just manner. The prosecution takes no interest in the result. They remain objective in that regard. You appreciate that?

Fox:

Yes, I do. Thank you.

Judge:

Has he been arraigned, Madam Registrar?

Clerk:

Yes, Your Honour.

Judge:

You obviously know what you're charged with?

Fox:

Yes.

Judge:

I'm going to ask Mr. Johnson to give me a brief opening with respect to what this case is about and then I may ask you a question or two with respect to that opening address. But we'll hear from Mr. Johnson first. You've got note paper there and you've got a pen?

Fox:

I don't have a pen. I was going to ask, may I borrow a pen and is there any way of getting any water? My mouth is very dry.

Johnson:

I don't see any water.

Fox:

Last time it's going to be -- get some bottles or something.

Judge:

Yes. Can we email the -- email the Registry, see if we can get some -- I brought my own water up but --

Clerk:

I could run out and just -- I took out a cup in the event that I had to get water.

Johnson:

I think I may have an extra pen.

Judge:

So Maureen, do you want to just dash out and get some water?

Clerk:

Certainly.

Judge:

Thanks.

Fox:

Okay. Thank you.

Judge:

Madam Registrar will get you some water, Mr. Fox.

Fox:

Thank you.

Johnson:

While we're waiting for that, I can proceed, Your Honour, or should I wait?

Judge:

Better wait for Madam Registrar, just in case the record should stop.

Johnson:

Yes.

Judge:

Thanks, Madam Registrar. We have Madam Registrar back. Mr. Johnson, an opening, please.

OPENING FOR CROWN BY CNSL C. JOHNSON:

Johnson:

Yes, Your Honour. Just by way of some background. There's a two count Information before the court. Both of the allegations in it are breach of court order allegations, probation specifically.

Mr. Fox -- I actually met with him this morning briefly. The Crown had intended to call a number of witnesses. I did discover two days ago that one of my witnesses is unfortunately attending to his father who is gravely ill in the hospital and not available.

Mr. Fox has indicated to me that nevertheless he's prepared to admit that on August the 19th he was sentenced to a sentence of time served and probation, and the probation order took effect when he was released on August the 20th. The probation order should be before this court.

Judge:

I've now got it. This is dated August 19th, 2020.

Johnson:

And Mr. Fox in that probation order, as well as in a Supreme Court order which is Count 2, has been directed to remove a particular website or websites, and the Crown says that he has not done that. That's the gist of the Crown's allegation here.

So the way I intend to deal with the case today is that Mr. Fox has also indicated to me that he doesn't take issue with his arrest and the fact that he was provided with his Charter rights, and chose not to speak to a lawyer. And then lastly, Mr. Fox agrees that he was interviewed by Detective-Constable Kyle Dent of the Vancouver Police Department. There is an audio recording of that interview which I've provided to Mr. Fox. Mr. Fox has been kind enough to say that we don't need to play the entire recording. And so what I intend to do is produce one witness on this trial who will be Detective-Constable Kyle Dent. He will give evidence about the substance of that interview.

Judge:

Thank you. I'm not going to call on a response from you, Mr. Fox. You've heard the opening. Is that correct that you were interviewed and questioned by Constable Dent? You're not taking issue with that, and that the portion of what was discussed with Detective-Constable Dent, you've received disclosure with respect to that?

Fox:

That is correct.

Judge:

Also with respect to any Charter issues, there are no Charter issues. I know you're an intelligent man. You are aware of your Charter rights under the Constitution Act of Canada, and that you're not taking issue with the arrest or any informational component or implementational component with respect to the right to counsel; is that correct?

Fox:

That is correct.

Judge:

Thank you. There will be an order of exclusion -- excluding witnesses. There's only one anyways, but there will be that order. Thanks, Mr. Johnson.

Johnson:

Thank you. Then I will call Detective-Constable Kyle Dent. Oh, Mr. Fox is rising.

Fox:

Yes. I object to the calling of that witness. I've received no notice of it prior to this, and it is my understanding, if I recall correctly, that the Crown does have to provide some amount of notice of the witnesses that he intends to call.

I've made multiple requests to the Crown over the past few months for a copy of their witness list, and so far they've provided nothing in that respect.

Judge:

Mr. Johnson.

Johnson:

I did provide Mr. Fox with, of course, full disclosure indicating -- and including the evidence of Detective-Constable --

Judge:

That included the evidence of Detective-Constable Dent?

Johnson:

Yes. And that is, in my view, what the Crown is required to provide.

Judge:

When was the disclosure made or forwarded?

Johnson:

I think there was two components of the disclosure and the first was -- Mr. Fox would be probably more accurate about it, but there was initial disclosure and then there was subsequent disclosure which I believe was disclosed to him on Monday.

Judge:

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.

Rideout starts out by saying this is what's called an ambush - but it's unclear if he means Johnson ambushed me by not informing me of his intention to call the witness, or I ambushed Johnson by not informing him of my intention to object to the calling of Dent. But I can't see how the latter could be an ambush because if I didn't know of Johnson's intention to call Dent then how could I be expected to inform him of my objection to calling Dent without notifying me?

Rideout then goes on to say that to bring this up on the day of the trial is not well received by the trial judge and that I should have raised this as an objection prior to the trial date. But how could I, reasonably, object to the Crown's failure to notify me of their intention to call a particular witness prior to them actually calling that witness? In order for me to have an objection, I would need to know that Crown intended to call that witness but was withholding that fact from me.

Rideout then says that the Crown's failure to notify me of their intention to call the witness would not "defeat the case" (which I presume to mean it would not result in that witness being excluded), it would only result in the judge adjourning the trial to allow the defendant time to prepare. That being the case, if the Crown's intention is to delay the trial in order to prolong the defendant's pretrial detention then he can accomplish that by simply not informing the defendant of his intention to call a given witness - rewarding the Crown for refusing to cooperate.

Rideout did not ask me if I wanted an adjournment in order to prepare a cross-examination of Dent, and he admonished me that I should have raised the objection PRIOR to the trial. Based on that, I understood Rideout to be saying he would not allow an adjournment in these circumstances.

Fox:

Okay.

Judge:

Thank you. Detective-Constable Dent, please, Mr. Sheriff. Stand to your left, to my right, to be affirmed, please, unless you brought your own Bible.

Dent:

I did not.

Judge:

Okay. You'll be affirmed.

KYLE DENT

a witness called for the Crown, affirmed.

Clerk:

Please state your full name and badge number, for the record, and spell both your first and last name.

Dent:

Kyle Dent, K-y-l-e D-e-n-t, badge number is 2680.

Judge:

Thank you. And you've got paper and a pen now, Mr. Fox?

Fox:

I do. Thank you.

Judge:

Thank you. Mr. Johnson.

EXAMINATION IN CHIEF BY CNSL C. JOHNSON:

Johnson:

Detective-Constable Dent, you're a member of the Vancouver Police Department, are you?

Dent:

I am.

Johnson:

And I understand that you've been so employed for the last eleven years?

Dent:

Correct.

Johnson:

And you're currently a member of what's described as the Domestic Violence and Criminal Harassment Unit?

Dent:

That is correct.

Johnson:

And you have been for the past four months; is that correct?

Dent:

Yes.

Johnson:

And are you aware of an individual by the name of Patrick Fox?

Dent:

I am.

Johnson:

And would you recognize Patrick Fox if you saw him here in the courtroom?

Dent:

I would.

Johnson:

And could you indicate to His Honour if Mr. Fox is here?

Dent:

If the gentleman to your right could remove his mask briefly. Yes, that is, in fact, Mr. Fox.

Judge:

I note the indication.

Johnson:

And you're aware that Mr. Fox has been charged with breaches of probation; is that correct?

Dent:

That is correct.

Johnson:

And as part of your involvement in this matter you reviewed a probation order which was dated August the 19th; is that correct?

Dent:

That's correct.

Johnson:

And you're aware that there's certain conditions of that order?

Dent:

Yes.

Johnson:

One of which is to remove certain websites; is that correct?

Dent:

That is correct.

Johnson:

And in particular, you investigated a website and I'm going to ask you the name of that website, please?

Dent:

It was desicapuano.com

Johnson:

And so that's w-w-w dot d-e-s-i-c-a-p-u-a-n-a dot com? Do I have that right?

Dent:

No, it's c-a-p --

Johnson:

Oh, sorry.

Dent:

-- u-a-n-o dot com.

Johnson:

Thank you. Now, when were you first asked to be involved in this matter?

Dent:

On September 15th.

Johnson:

And who asked you to be involved?

Dent:

The lead investigator, Detective-Constable Wesley Jordan.

Johnson:

All right. And what were you asked to do?

Dent:

Conduct an interview of Patrick Fox.

Johnson:

All right. And on that day, that is September the 15th did you know Mr. Fox at that time?

Dent:

I did not.

Johnson:

And did you familiarize yourself with Mr. Fox?

Dent:

I reviewed parts of the previous file to prepare for the interview.

Johnson:

And in reviewing parts of the previous file you -- well, perhaps I won't ask that. Did you, as part of your investigation, look at or check out a website call -- as you've described?

Dent:

I did. On the 16th of September I reviewed and printed off the front page of desicapuano.com and I brought it here with me today.

Johnson:

All right. And the printout that you made is one page?

Dent:

It's predominantly one page. There's a little footnote on the back page to make it two, but the bulk of the information that I used is on the front page, yes.

Johnson:

And the website that you reviewed, I take it -- well, I'll ask openly, how many pages might exist then if you were to copy the website in its entirety?

Dent:

I -- countless. I -- I can't put a number on there. There's a number -- if I may refer to the document that I brought, Your Honour.

Judge:

Sure.

Dent:

Okay. So on the front page here there's an open letter to Mr. David Eby.

Judge:

Pause there. You've got that document, Mr. Fox?

Fox:

Oh, no, no, but I'm familiar with it, I'm looking for something else.

Judge:

Oh. I just want to make sure that you're -- you've got -- you've had disclosure?

Fox:

Oh, yes. Yes.

Judge:

Thank you.

Johnson:

Perhaps if I can just take it from the witness and I'll just verify that with Mr. Fox if I might. Mr. Fox --

Fox:

Mm-hmm. Sure.

Judge:

He's identified the document. Thank you, detective-constable.

Dent:

Thank you. As I was saying, on the left-hand side of the front page here there are a number of sublinks, links to other articles that I did not look at. Those links are something to the effect of "Ah, Dang! Not this website again," "I haven't taken my kids to the dentist," and some other inappropriate titled items that I would prefer not to disclose.

Johnson:

All right. And with respect to the website itself and you're looking at the first page, you indicated that it contained a letter to whom?

Dent:

David Eby.

Johnson:

All right. And you're aware that he's -- was then the and is still the Attorney General of British Columbia?

Dent:

I do, yes.

Johnson:

And as far as the subject matter of that website could you tell when that information has been posted?

Dent:

The date on this says August 19th, 2020, at 1:53 p.m.

Johnson:

All right. And when you say the date --

Judge:

What time, please?

Dent:

Sorry, the date right there, August 19th, 2020, 1:53 p.m.

Johnson:

All right.

Judge:

Thank you.

Dent:

So I don't -- again, I'm not a technical expert, I'm not familiar with how to create or how to update websites or anything, along those lines. I just see a date on the top of the document there.

Johnson:

All right. So you can't say that that date and time is --

Dent:

No, there is a date --

Johnson:

-- an accurate -- relevant date and time?

Dent:

-- of August 19th, 2020.

Johnson:

If I could just see that for a moment.

Dent:

Of course.

Johnson:

With respect to that document it refers -- it's written in the first person, I take it; you'd agree with that?

Dent:

Yes.

Johnson:

And it's written as a letter to Mr. Eby but it's posted on this website; is that correct?

Dent:

Yes.

Johnson:

And amongst the things that it says, and I'm referring to the second paragraph.

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, etc.

So you'd agree that it referenced a specific date that had occurred?

Dent:

It does, yes.

Johnson:

And so as a result of printing out that website you, I take it, used that document in your subsequent interview of Mr. Fox; is that correct?

Dent:

I did, yes.

Johnson:

And sorry, there was just one other thing I wanted to reference which was -- in the third paragraph of this letter you'd agree that it says:

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 the rest of my life, but I will never take down the website.

Is that correct?

Dent:

That's correct.

Johnson:

And I take it you would reference that to be that the very website, www.desicapuano.com?

Dent:

That's correct. That website is also in the bottom left-hand corner of the printout.

Johnson:

Thank you. If I could file that as Exhibit 1 on the trial.

Judge:

What I'm going to do, Mr. Fox, is file it -- mark it for identification as Exhibit A. At the conclusion of the Crown's case I'll invite Mr. Johnson to revisit that document to see if it should be marked as an exhibit proper. This protects your interest as well.

Fox:

Okay. Thank you.

Judge:

Exhibit A for identification. Working copy for me.

Johnson:

Well, that would be a good idea, wouldn't it. I wasn't allowed access to the Crown Counsel Office this morning and --

Judge:

Madam Registrar, can you make a copy at the morning break for me, please. Thank you.

MARKED A FOR IDENTIFICATION: Documents pertaining to website

Johnson:

Now, you've indicated that you prepared for an interview with Mr. Fox and did that interview take place?

Dent:

It did.

Johnson:

And can you tell the court, please, when that occurred?

Dent:

On September 17th, 2020.

Johnson:

And approximately what time on that day?

Dent:

Approximately 7:45 to 7:50 in the morning.

Johnson:

All right. And Mr. Fox, I take it, was in custody having been arrested at that time; is that correct?

Dent:

That is correct.

Johnson:

And you'd been made aware that he'd been chartered and warned and had declined to speak to a lawyer?

Dent:

Yes.

Johnson:

Now, where did this interview take place?

Dent:

The interview took place at the Police Station located at 236 East Cordova Street. On the ground floor there has been one interview room that has been made COVID friendly with a large Plexiglas pane to separate the people who are in the interview.

Judge:

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?

Fox:

No, I have no concerns with it.

Judge:

You're sure of that?

Fox:

Yes.

Judge:

All right. Thank you.

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.

Judge:

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

Fox:

Yes.

Judge:

Thank you.

Johnson:

Now, Detective-Constable Dent, you with respect to this interview that I'm asking you about wrote up a document which is called a Task Action Report; is that correct?

Dent:

That's correct.

Johnson:

And Your Honour, I can indicate that that Task Action Report was disclosed to Mr. Fox, and I'll just show him a copy of that to verify that.

Johnson's direct-examination of Dent is based entirely on the Task Action Report (TAR) Dent wrote regarding his interview of me. That TAR was not disclosed to me until less than three days before the trial, along with over 100 pages of other material, and no indication was provided to me that Crown intended to call Dent as a witness. And if Dent was not going to be called as a witness then his TAR could not be used as evidence, so I had no reason to pay attention to it.

And let me be clear on this: The document they're referring to, the TAR, was located at pages 37 through 39 of the 107 page PDF file that was provided to me 3 days before the trial. There was nothing to give me any idea that I should pay particular attention to those three pages out of the total 107 pages.

Judge:

Thank you.

Fox:

Sure.

Johnson:

He's indicating yes.

Judge:

Thank you.

Johnson:

And with respect to the Task Action Report essentially that acted as your recording for your own purposes and for court purposes of what took place during this interview?

Dent:

Yes.

Johnson:

And you, I take it, had with you what's been marked as Exhibit A for identification, a copy of the website; is that correct?

Dent:

That's correct.

Johnson:

And during the interview, at the beginning portion of the interview did you advise Mr. Fox it was going to be recorded?

Dent:

Yes.

Johnson:

And did Mr. Fox have a response to that?

Dent:

Yes. He said it is important to have good quality audio and video for him to put on the website later.

Johnson:

All right. And then did he reference the website with respect to anything that he had put on it or that was on it?

Dent:

Your Honour, with respect, I'd like to refer to my Task Action Report so that I can provide accurate evidence.

Judge:

That's fine. You can refresh your memory from your notes, thank you, including that document.

Dent:

Thank you very much. Mr. Fox referenced a number of details on that website, yes. His response was he did not admit to posting anything, but it has been updated by somebody.

Johnson:

All right. So his -- his version, I take it, was that he denied that he updated the website and obviously we're talking subsequent to August the 19th of this year; is that correct?

Dent:

Yes.

Johnson:

He did -- I take it you did ask him about whether he had taken down the website; is that correct?

Dent:

I did.

Johnson:

And his response to that, you made reference to in line six of your Task Action Report; is that correct?

Dent:

Yes. That response is [as read in]:

The reason it hasn't been taken down is because it exposes misconduct and corruption that happens in the criminal justice --

Johnson:

Actually -- sorry -- if I could --

Dent:

Oh.

Johnson:

-- ask you to go up to the line ahead of that.

Dent:

Sorry. He was ordered to take down the website and he believes the website itself is not illegal.

Johnson:

Right. So just on that portion of the interview would it be fair to say that Mr. Fox acknowledged that he'd been ordered to take down the website, but he had a belief that it was not illegal?

Dent:

Yes.

Dent and Johnson are trying to create the false impression that I stated the reason I haven't taken down the website is because I believe it is not illegal.

But this is a misrepresentation because:

my belief that the website is not illegal has nothing to do with why it hasn't been taken down; and
in the interview, my statement about why I believe the website has not been taken down (Interview TR p7l6-13) occurs separately from my statement that the website is not illegal (Interview TR p6l14-20).

And, in fact, the discussion about why the website hadn't been taken down resulted from the discussion about the website not being illegal (Interview TR p6l31-p7l4). Therefore, what Dent is claiming could not possibly have occurred (for it to have occurred, the mention of the website not being illegal would have to have occurred AFTER Dent asking why the website had not been taken down).

Johnson:

And then to go into the next line which was the reason it hadn't been taken down, if you could advise the court of that part of the interview again, please?

Dent:

Yes. [As read in]:

The reason it hasn't been taken down is because it exposes misconduct and corruption that happens in the criminal justice system every day, expose corruption and misconduct of jackasses like Mark Myhre and Tony Lagemaat and it exposes a misconduct of evil, horrible cunt of an ex-wife.

Johnson:

Now, going onto the second page of your Task Action Report, in the second line of that did Mr. Fox say anything about the police action or lack of action?

Dent:

Yes. Your Honour, Mr. Fox stated that he was waiting to be arrested by the police and I quote, "Surprised it took this long," end quote.

Johnson:

All right. And then I think it's the sixth line from the top that it references the City of Vancouver. Do you see that?

Dent:

Yes.

Johnson:

Can you explain that portion of the interview, please?

Dent:

So during the interview Mr. Fox made a statement where he stated he saw the City of Vancouver, RCMP and Province of British Columbia, their IP addresses in the access logs for the website.

Johnson:

And can you tell me or tell the court, please, what that means?

Dent:

What it means to me is that anybody who has the IP access of a website, it's my belief that they have access to the website as a content creator.

Johnson:

All right. And when persons, for example, who work for the City of Vancouver or the RCMP or the Province of B.C. --

Dent:

Mm-hmm.

Johnson:

-- access this particular website which, again, was www.desicapuano.com --

Dent:

Mm-hmm.

Johnson:

-- their IP address, this is in your understanding, can be seen; is that correct?

Dent:

Yes.

Johnson:

And that part of the interview was a reference, I'm taking it, or I'll ask it in a more general way, did Mr. Fox indicate that he had access to the -- what you've described as access logs for the website? Just reading that sentence.

Dent:

Yeah. Reading that sentence, yes. Again, it's my belief that anybody who has the access logs to a website has access to the website, more than just a person who can click on the website and access it from the internet.

Johnson:

And just to be clear, he did indicate to you, I gather --

Dent:

Mm-hmm.

Johnson:

-- that he had seen those access logs for the website?

Dent:

Yes.

Johnson:

And then next, in the course of this interview Mr. Fox indicated to you what he wanted and by that I take it he was saying what he wanted by posting this website; have I got that right?

Dent:

He -- what he stated was the purpose of the website. I had asked him what it would take for the website to be taken down.

Johnson:

All right. And his answer was what?

Dent:

What he wants is the government to admit everything on his website is true and overturn all his convictions, and for his ex-wife to get throat cancer and die a slow, miserable death.

Johnson:

All right. And then --

Judge:

You were a little fast with that. Can you repeat that, please?

Dent:

Yes. Of course, Your Honour. I apologize. His answer when I asked him what it would take for the website to be taken down, he stated he wants the government to admit everything on his website is true and overturn all of his convictions, and for his ex-wife to get throat cancer and die a slow, miserable death.

If I may, he went on to say no one --

Johnson:

Just hang on one second.

Dent:

Oh, okay.

Johnson:

I think His Honour is still recording that.

Judge:

Thank you.

Johnson:

And Detective-Constable Dent, you were indicating that he went on to say what?

Dent:

Yes. He went on to say no one is going to take down anything from the website --

Johnson:

If you could just pause there for a second.

Dent:

Mm-hmm.

Judge:

Thank you.

Dent:

Unless the Provincial Government admits publicly that he didn't commit criminal harassment, overturn his conviction for criminal harassment --

Judge:

Yes.

Dent:

-- and admit everything on his website is true. I would also like to say, Your Honour, that the statements that I'm providing right now are not direct quotations.

Judge:

Just the gist of what's --

Dent:

That is correct.

Judge:

-- compressed into --

Dent:

The transcript when it's done --

Judge:

Into your Task Report. Thank you.

Dent:

Yes.

Johnson:

And did you ask him, in the context of this, whether he would ever take the website down? And I'll ask you to reference about three lines later.

Dent:

Yeah. I have a note in here, he will never in his life take the website -- take down the website.

Johnson:

And then did you have some discussion with Mr. Fox about the technicalities of taking down the website or a website?

Dent:

Yes. Mr. Fox provided great detail on multiple different techniques in order to remove the ability of the website being online anymore.

Johnson:

All right.

Judge:

He appeared to be informed in that respect?

Dent:

Yes. Mr. Fox stated in the course of the interview that he is a software engineer, and I got the very distinct impression that he is incredibly intelligent when it comes to the mechanics of anything computer related.

Johnson:

And then towards the end of the interview and I'm now on the third page of your Task Action Report.

Dent:

Yes. Mm-hmm.

Johnson:

This is, I believe, the fourth line from the top.

Dent:

Mm-hmm.

Johnson:

Did Mr. Fox reference additional content for the website?

Dent:

He did. There's a note here, there's a lot more content that needs to be added and it's going to go up. It's very time-consuming and -- and I quote, "I haven't been the most productive," end quote.

Judge:

Thank you.

Johnson:

And then the next line after that, if you could share that with the court, please?

Dent:

Locking him up in jail isn't going to stop or change anything.

Johnson:

And then I take it you had some further conversation with Mr. Fox, I'm not going to ask you the details, regarding the Digital Forensic Unit at the Vancouver Police Department --

Dent:

We did.

Johnson:

-- etc.?

Dent:

We did, yes.

Johnson:

And then you concluded the interview; is that correct?

Dent:

That's correct.

Johnson:

And are you able to tell us approximately how long this interview lasted from start to finish?

Dent:

After reviewing my notes I realized I didn't write it down, but I can recall it lasted approximately an hour and a half.

Johnson:

And would it be fair to say that Mr. Fox was cooperative with you?

Dent:

Absolutely.

Johnson:

Thank you. Those are all the questions I have of this witness, Your Honour.

Judge:

So Mr. Fox, this is your opportunity to cross-examine the detective-constable in relation to his evidence. You should be sticking to the evidence that you've heard today and it's not one of going outside of that scope because it's narrowed down to these allegations of breach.

So the idea to cross-examination is to ask probing questions to undermine the reliability and ultimate credibility of this police officer if possible, or that perhaps you can challenge some of the comments or evidence he's given with respect to the conversation itself, but this is your opportunity.

Fox:

Thank you.

CROSS-EXAMINATION BY THE ACCUSED:

Fox:

Detective Dent, could you tell me when was the first time that you ever went to the website?

Dent:

The first time I went to the website was on the 16th.

Fox:

Of which month?

Dent:

Of September.

Fox:

Okay. And did you visit the website at all or try to access the website between the times of eight p.m. on August 20th through eight p.m. on August 22nd?

Dent:

I did not.

Fox:

And who is the registered owner of the website?

Dent:

I don't have that information.

Fox:

Who was the registered owner of the website on August 20th through 22nd?

Dent:

I don't have that information.

Fox:

Who has administrative access to the website?

Dent:

I don't have that information.

Fox:

Have you in the course of -- oh, well -- other than the interview and preparing for the interview with me have you done any investigation into this matter?

Dent:

No.

Fox:

So is it fair to assume that you have not contacted the hosting provider?

Dent:

No.

Fox:

Was the website taken offline between eight p.m. on August 20th and eight p.m. on August 22nd?

Dent:

I don't have that information.

Fox:

Who wrote the blog post that you were referring to earlier, "Dear David Eby"?

Dent:

At the bottom of that post is a signature block with Patrick Fox's name written on it.

Fox:

Mm-hmm. So the person who wrote that post, were they under any moral or legal obligation to put a specific name there, or could they have put any name?

Dent:

Your -- I don't know if I can answer that question. You're asking me the morality of somebody else.

Fox:

Okay. Forget the moral aspect of it then. Was it possible that the person who wrote that post could have put whatever they wanted for the name?

Dent:

Again, you're asking me what somebody else --

Fox:

Okay.

Dent:

-- could or could not do. I remember during our interview we talked about this --

Fox:

Mm-hmm.

Dent:

-- and you mentioned that perhaps Desi Capuano herself could have written your name down there.

Fox:

Did she? Did Desiree Capuano herself write that post?

Dent:

Again, I --

Fox:

Okay. Was that post written and put on the website before I was released from custody on August 20th, to the best of your knowledge?

Dent:

I don't have any knowledge in regards to that.

Fox:

Okay. Does that post and the contents in that post have any relevance or significance to whether or not the website was taken offline within fortyeight hours after my release from custody?

Dent:

The only relevance that I observed on that was a sentence stating that I will never take this website down.

Fox:

Okay. And of course, that would only be relevant if I actually wrote and posted that post, right?

Judge:

Well --

Fox:

Sorry.

Judge:

-- he can't answer that.

Fox:

Right, right.

Fox:

Did I at any point in my interaction with you state that after August 20th -- well -- okay, yes -- that after August 20th that I still own or control the website?

Dent:

In our conversation you would make statements to the effect of I have more information to put on and then stop yourself and correct yourself saying something to the effect of and by I, referring to yourself --

Fox:

Mm-hmm.

Dent:

-- I mean somebody.

Judge:

And what I'll say, Mr. Fox, I'm entitled to draw certain inferences from the evidence to put together the factual pattern for the offences. If this officer had a discreet interaction with you --

Fox:

Mm-hmm.

Judge:

-- he wouldn't have much information with respect to all of the background of details --

Fox:

Right.

Judge:

-- but it was from this interview that this evidence is now being entered in by Mr. Johnson.

Fox:

Right.

Fox:

In response to -- sorry, I'm asking -- moving -- so the comment that you had just made about statements that I had made that I have more information or evidence that I intend to publish on there, let me ask you this. Once the current probation orders against me expire and I return to my country of origin am I under any legal obligation to not post anything on the website?

Judge:

That's something that he cannot answer. That's something you get legal advice on.

Fox:

Right. Well, I know what the answer is.

Judge:

I'm just saying he can't answer that but a lawyer could certainly help you out.

Fox:

Right, right. The reason for that question was --

Judge:

That's good.

Fox:

Okay.

Fox:

So in our conversation did I state that I had transferred ownership or control of the website to another party at some point?

Dent:

The only comment that I can recall --

Fox:

Mm-hmm.

Dent:

-- in relation to that and I'm just going to refer to my Task Action Report here, was on the second page, approximately in the middle, I can count lines if you'd like, you wrote if some -- or sorry, I wrote -- if somebody was assisting with the website it would be somebody outside of Canada.

Fox:

Okay. So I'm not sure that really answers my question though. My question was did I make a particular statement or admission to you, that being that I had transferred ownership or control of the website to another party?

Dent:

I don't recall.

Fox:

Okay. I believe that you had mentioned earlier or made reference to a statement that I had made that I would never take down the website. Do you recall testifying about that a few moments ago?

Dent:

Yes.

Fox:

Okay. So -- give me a moment while I try to think of how I can phrase this. Would you say that that statement on my part would be reasonable if, in fact, I don't own the website? In the probation order --

Dent:

Mm-hmm.

Fox:

-- you may notice it explicitly states, blah-blahblah, including the website's published under the domain dub-dub-dub dot -- or www.desireecapuano.com and www.desicapuano.com. Do you agree it mentions both or --

Dent:

Yes.

Fox:

-- it states both of those domains?

Dent:

Yes.

Fox:

Who owns the domain name w -- desireecapuano.com?

Dent:

I don't know that information.

Fox:

Would it surprise you to know that Desiree Yvonne Capuano, my ex-wife --

Judge:

What you're now doing is essentially giving evidence, and that's not proper cross.

Fox:

Okay.

Judge:

You may want to take the witness box and I'll discuss that with you in due course.

Fox:

Right.

Judge:

But I know where you're going with that question. He's not -- he's not going to be able to answer that question.

Fox:

Oh. But the question was would it surprise him to know that?

Judge:

But that's --

Fox:

Okay.

Judge:

-- essentially giving evidence.

Fox:

With respect to the access logs that you had mentioned earlier, I had stated that I had seen certain IP addresses within the access logs?

Dent:

That's correct.

Fox:

Are those access logs publicly accessible? And I'm not speaking generally are they, but specifically for that website. Have they been made publicly accessible so that anybody can access them?

Dent:

I don't have that information.

Fox:

The -- well, okay. Did I at any point state to you that I did not take down the website between August 20 -- 20th and 22nd?

Judge:

Sorry, what's the question?

Fox:

Oh. Did I state to the detective in our interaction --

Judge:

Right.

Fox:

-- in our interview that I did not take down the website between August 20th and 22nd, during the period that's relevant to the probation order, the forty-eight hours after my release?

Dent:

Your Honour, the only notation I have in relation -- remotely to that question is I have noted down here, again, on the second page down about threequarters of the way down. If you had taken down the website within forty-eight hours and then put it back up you would have complied.

Fox:

Sorry, you're saying that's a statement that I had made?

Dent:

Yes.

Fox:

If I had taken it down and put it right back up I would have complied?

Dent:

Yes. That's the statement that you made during the interview, yes.

Fox:

Okay. But that's not really stating that I didn't take it down?

Dent:

Again, I don't have that information.

Fox:

Okay. Did you ask me if I had taken the website down within forty-eight hours of my release from custody?

Dent:

I don't recall if I asked you that or not.

Fox:

Would you like to check your notes?

Dent:

I -- I referred to my notes here.

Fox:

If you had asked me that I would think that would be a very significant thing and it would be in your notes. Sorry, that's just a suggestion.

Judge:

And you've now refreshed your memory and looked at the notes, any reference with respect to the question being asked?

Dent:

Other than that last comment I made. I don't see anything in here about me directly asking you if you had taken down the website.

Fox:

Okay.

Johnson:

On those dates.

Dent:

On those dates.

Fox:

Well, I can --

Dent:

Specifically on those dates.

Fox:

-- I can even broaden the question and say regardless of those dates, did I state that I did not -- actually did I say that I did or did not take down the website at any time? Did that topic even come up? Was it even asked of me?

Dent:

I recall that the website was still up at the time of the interview.

Fox:

Okay.

Dent:

And the day before. And so to answer your question I don't believe I asked you if you had taken down the website because I had knowledge that it was still active and up.

Fox:

Okay. I want to ask you about that a bit because consistently all of the officers involved in this had been saying that the website was still, and I'm putting air quotes around still, still up as of September 15th and 17th. The use of the word "still" suggests that it was up continuously from some point up until that point; that it had never gone down, but you've already admitted that you have no knowledge about whether or not the website was actually taken down at some point.

So is it fair to say that you can't actually claim that the website was still up. You can claim that it was up on that day --

Dent:

Mm-hmm.

Fox:

-- but do you have any knowledge or any evidence that it had been up continuously for that whole time?

Dent:

I have no knowledge. My involvement in this file was to interview you.

Fox:

Right. Okay. Then given that the charge against me is that I failed to take down the website within forty-eight hours of my release from custody, is it reasonable to say that you have absolutely no evidence at all as to whether or not that actually happened?

Dent:

My involvement in this file was to interview you.

Fox:

Mm-hmm.

Dent:

I did not review the file. I did not look into anything beyond preparing for interview with your -- oh, sorry -- preparing for an interview with yourself. So I have no knowledge of the intricacies of the file. I did not look into anything about the website being up or down --

Fox:

Mm-hmm.

Dent:

-- active or not. I reviewed the website on September 16th. I printed off the front page to present in our interview which I've shown to the court, and that is my knowledge.

Fox:

Okay. So then I think maybe I just have one more question here. Given that it seems to me the only question that's relevant to this trial is did I or did I not take the website down within forty-eight hours of my release from custody on August 20 -- between eight p.m. on August 20th through eight p.m. on August 22nd.

If that is the only question that's relevant then isn't it fair to say that you really have no relevant evidence to provide here?

Dent:

I cannot --

Fox:

Can you state -- okay.

Dent:

-- answer that question.

Fox:

All right. I believe -- let me just do a double-check here to make sure.

Judge:

Sure.

Fox:

Sorry, VPD or B.C. Corrections have lost my glasses so everything's a little bit blurry so I'm moving a little slowly.

Yes, I believe that would be all the questions I would have.

Judge:

Re-examination, Mr. Johnson?

RE-EXAMINATION BY CNSL C. JOHNSON:

Johnson:

Yes, just one question Detective-Constable Dent. You were asked by Mr. Fox whether you had asked him whether he had taken down the website initially between -- I think he said August 20th and 22nd and then just generally.

Dent:

Mm-hmm.

Johnson:

Do you recall that?

Dent:

I remember him asking that question, yes.

Johnson:

And just in response. I've already asked you about this, but I'll draw your attention, if I might, to page 2 of your Task Action Report.

Dent:

Mm-hmm.

Johnson:

To the fifteenth line from the top and it seems to -- here I can -- it seems to be an answer to that type of question.

Dent:

Yes.

Johnson:

But can you tell the court what he said about taking down the website?

Dent:

Again, he will never in his life take down the website.

Johnson:

Thank you, Your Honour. That's the only question I have.

Judge:

Thank you. I have no questions, detectiveconstable. You're excused and free to go.

Dent:

Thank you, Your Honour.

(WITNESS EXCUSED)

Judge:

So with respect to Exhibit A for -- is that the case for the Crown?

Johnson:

Yes. The Crown is making an application to have Exhibit A marked as Exhibit 1 in this trial.

Judge:

Any issue with respect to Exhibit A for identification?

Fox:

Wait -- with respect to for identification?

Judge:

With respect to its admissibility into the trial proper.

Fox:

Well, I would object only on the grounds that I don't see how it's relevant.

Judge:

That would be for argument.

Fox:

Right.

Judge:

Right. Exhibit A for identification, Madam Registrar, will become Exhibit 1 in this trial.

Clerk:

Thank you, Your Honour.

EXHIBIT 1: Documents pertaining to website (was A for identification)

Johnson:

Now, Your Honour, I did indicate to Mr. Fox, in fairness, at the beginning that if there was other -- because I'd been unable to call a couple of witnesses, I've finished calling my case. He indicated that he may or may not want further evidence. So if I can just canvass that with him for a moment.

Judge:

Sure. I'll stand down. You can talk to Mr. Fox. Actually why don't we take the morning break. It's a little early but we'll take the morning break.

After Mr. Johnson speaks to you, Mr. Fox, I will be asking whether or not you intend to testify. Keep in mind that the onus throughout rests with the Crown to establish that the case on -- beyond a reasonable doubt which is a high threshold, as you can appreciate, so it's up the Crown to establish that threshold. You don't have to take the stand. Of course once you take the witness stand and give your evidence you will be subject to cross-examination as well. So please keep that in mind. We'll take 20 minutes and Madam Registrar, if you can get me a copy of Exhibit 1.

Clerk:

Yes, Your Honour.

Judge:

And I'll have my intern come back to join me in the hallway. Thank you.

(PROCEEDINGS ADJOURNED FOR MORNING RECESS)

(PROCEEDINGS RECONVENED)

Judge:

And just so it's clear to me, Mr. Johnson. Count 1 and Count 2 are live counts; is that correct?

Johnson:

Yes, that's correct.

Judge:

Mr. Johnson spoke to you, Mr. Fox. I don't know what that discussion is and unless you want to bring it to my attention, otherwise it's between you and Mr. Johnson. The Crown has closed its case. This is your opportunity to make any -- no evidence or insufficient evidence motion. I can't, again, advocate for you with respect to that, or you can take the stand and give some evidence. You're not compelled to take the stand. That's entirely your call. Do you understand that?

Fox:

I do. Thank you.

Johnson:

Sorry, Your Honour, just before we get to that. I did confirm with Mr. Fox before the break that he's not requiring me to call any further evidence. That is, there's nothing further that he wanted to explore.

Judge:

Thanks, Mr. Johnson. So it's what -- it's your election at this time as to what you would like to do with respect to these two allegations because I asked -- they're both live allegations. They're somewhat different in a nuanced way, but in particular, Count 2 has got a different timeline you can see that to Count 1.

Fox:

Sorry, let me find the indictment here. I did have some issue with one of the counts

Judge:

Hypothetically, Mr. Johnson, if I was to find him guilty of either or it would be a Kienapple situation?

Johnson:

Yes. I -- actually I think what I'll do is I'll assist the court and Mr. Fox by saying that the Crown is proceeding on Count 1 and not Count 2.

First, it wouldn't actually be a Kienapple situation because there is no overlap between Condition 13 of the Holmes order and Condition 4 of the Phillips order. The condition of the Holmes order required me to engage in particular conduct within 24 hours of my release from custody on 2018-12-30; and the condition of the Phillips order required me to engage in that same conduct within 48 hours of my release from custody on 2020-08-20.

Rideout and Johnson are mistakenly thinking there would be a Kienapple situation because they're misinterpreting Condition 13 of the Holmes order and Condition 4 of the Phillips order to be imposing the requirement on me for the entire duration of the respective orders. But that interpretation is wrong.

Second, I cannot possibly be found guilty of Count 2, because Count 2 alleges that between 2020-08-19 through 2020-09-16 I breached Condition 13 of the Justice Holmes probation order which required me within 24 hours of my release from custody on 2018-12-30 to, essentially, remove the website from public access. By the time stated on the indictment (2020-08-19 through 2020-09-16), Condition 13 of the Holmes order no longer imposed the requirement on me. The count should have alleged that between 2018-12-30 through 2018-12-31 I breached Condition 13 of the Holmes order.

I think that would be the fair thing to do.

Fox:

In that case then I have no issue with Count 2. That was the one I was going to have issue with. I can't seem to find the indictment. I think I don't have a copy of it only -- but anyway it's not relevant if the Crown's not proceeding with Count 2.

Judge:

Well, it's quite important --

Johnson:

I can show Mr. Fox my copy.

Fox:

Oh, here it is. I've got -- I've got it.

Judge:

So it's Count 1 you're proceeding on, Mr. Johnson?

Johnson:

Yes. Count 1 relates to the probation order that Mr. Fox has admitted to in any event, and Count 2 is a Supreme Court --

Judge:

Seemed to be appropriate.

Fox:

Okay. I don't believe that I intend to call any evidence.

Judge:

You're waiving the right to take the witness box. That is your right, of course, to give evidence in your own defence. You're not -- you don't have to. The obligation is upon the Crown to establish all essential elements. You're aware of that. You're an intelligent man. And that it would be up to Mr. Johnson to convince me based upon the admissible evidence whether or not the case has been made out.

So at this particular stage you have no motions with respect to this matter. I take it you're not going to give evidence but I take it it's your submission that this case falls short of establishing proof beyond a reasonable doubt of the offence that -- I think that's your position; am I right?

Fox:

That is correct, yes.

Judge:

All right. I'm going to hear from -- as an officer of the court I'm going to hear from Mr. Johnson first and then hear from you with respect to your approach to Count 1, okay?

Fox:

Okay, thank you.

SUBMISSIONS FOR CROWN BY CNSL C. JOHNSON:

Johnson:

I can say very simply, Your Honour, that first of all with respect to Count 1, Mr. Fox made the admission that he was on that probation order pronounced by Judge Phillips on August the 19th. There is no issue that that order requires him to remove the website, www.desicapuano.com.

I don't disagree with Mr. Fox that there is no evidence before the court to enable the court to conclude who owns that website. But there is, I say, clear evidence that Mr. Fox was able to comply with the order and refused to do that. And that comes from the interview that Your Honour heard about with Detective-Constable Dent in September.

The Crown says that Mr. Fox wasn't required to remove the website within the first forty-eight hours. He's simply required to remove the website. And so the evidence is that the website was up on September the 16th.

Johnson is kind of wrong on this. Condition 4 of the Phillips order only required me to remove the website and to do so within 48 hours of my release from custody. If I removed it, but not within 48 hours then I would be in breach. If I removed it within 48 hours then I would have complied. If, after removing it within 48 hours, I put it back online then I would still have complied with Condition 4 of the Phillips order, but by putting it back online I would have breached Condition 12 of the Holmes order.

And I believe that is what Count 2 on this indictment was supposed to be: an allegation that I breached Condition 12 (not Condition 13) of the Holmes order. You see, that way if I claimed I didn't take the website down then I'm guilty of Count 1, and if I said I took it down but then put it back up I'm guilty of Count 2. But I think the Crown, in their typical fashion of gross incompetence, copied and pasted the text of the wrong Condition into Count 2. But that's their mistake, so I shouldn't be punished for it.

But, consider that even if they did base Count 1 on a breach of Condition 4 of the Phillips order and Count 2 on a breach of Condition 12 of the Holmes order, my defense here was that it's not my website anymore, I no longer own it or have any control over it, so I don't have the physical or legal capability to take it down. So they'd still be fucked because the Crown has the burden of proving the accused has the legal and physical capability of complying with the order before the burden shifts to the accused to establish a so-called "reasonable excuse" for failing to comply.

Fuck, they're stupid.

Mr. Fox in his statement to the police indicated that he will never remove the website. He also made a number of statements the result of which I say lead the court to the clear inference that the Crown has proven Mr. Fox's failure to comply beyond a reasonable doubt.

So the evidence, much of which wasn't challenged, from Detective-Constable Dent indicated that at the outset of the interview Mr. Fox said that it was important to have good quality audio and video for him to put it on the website. He also indicated that he wasn't going to admit that he had put it up or taken it down, but he did indicate that he was well aware that he had been ordered to take it down, but nevertheless he had a belief that the website was not illegal.

He also provided an explanation as to why he hasn't taken it down which was given to you by Detective-Constable Dent. And Mr. Fox indicated that he had not taken it down because it exposed misconduct and corruption that happens in the criminal justice system every day, etc., and named a few names of people who he felt were corrupt.

He did also indicate that he had been able to have access in some way to the access logs for the website. So in other words, he was able to determine that people from the City of Vancouver, the RCMP and Province of B.C. had access to the website or viewed it. That is another part of the evidence that I say leads to the inexorable conclusion that Mr. Fox did not take down the website and had the mens rea required for that.

He also indicated that he will never in his life take down the website, and in my submission, that in and of itself, having been directed to, again, leads to the inexorable conclusion that Mr. Fox is guilty here.

Okay, Mr. Johnson, I get it, you're either grossly mentally deficient or you're an amazing asshole. We've been over this numerous times, but apparently you're having great difficulty comprehending it: The website that was online from 2020-08-20 through 2020-9-17 was not put online by me. I have no control over it. I will never take it down because I am incapable of taking it down. It is not my website. That doesn't mean it's not going to go away for any other reason, but if it does go away it won't be because I took it down. Do you see now? Do you understand now, that by saying what I said I am not stating an intention to breach the probation order, I am stating that I will not do what I am incapable of doing - because I am incapable of doing it.

Come on, dude. Fuck off! You can't be this fucking stupid! And to be clear: the fact that Rideout agreed with Johnson on these issues means he's either just as stupid as Johnson, or just as petty and vindictive.

And then lastly, it's important for the court to take into account the evidence of Detective-Constable Dent that Mr. Fox indicated that he had a -- I'm not sure that he used the word -- but a vast body of knowledge as to how to take down a website. And he indicated in his statement that he -- I'm just looking for that -- he indicated that, quote, "There's a lot more content that needs to be added and it's going to go up, it's very time consuming. I haven't been the most productive." And he also indicated to Detective-Constable Dent that he had knowledge of several different ways as to how the website could be removed.

So in all of those circumstances given that Mr. Fox didn't deny having said those things to Detective-Constable Dent, or in fact, that they were not true, the Crown says that it has been proven beyond a reasonable doubt that Mr. Fox was ordered by this court to take steps to remove the website, www.desicapuano.com, and is steadfast in refusing to do that, and as a result of that the Crown says guilt is proven beyond a reasonable doubt.

Judge:

Thank you. Mr. Fox, this is your opportunity to make submissions in response to those submissions of Mr. Johnson.

Fox:

Okay. Sorry, just one moment, please.

Judge:

Sure, take your time.

SUBMISSIONS BY THE ACCUSED:

Fox:

Okay. It would be my position at this point that the Crown has failed to prove certain critical or fundamental aspects of their case.

The first is the issue of ownership or control of the website. In order for me to be able to take down a website I would have to have ownership or control of that website. And by the witness' own admission the VPD has no knowledge of who owns the website. I never stated that I did. I never stated that I didn't either because that topic simply didn't come up in the conversation with Detective Dent.

There's also no evidence at all presented that the website was or wasn't taken offline or taken down, if you want to call it that, at any time between when I was released from custody and then when I was arrested again. And as I had said to Detective Dent, as long as the website did get taken down or did come down, probably within the forty-eight hours, then I would have been in compliance with the probation order. If somebody else then went and put the website back online I would still be in compliance with the order.

Also, it's significant to point out that the probation order does not have a condition that would prohibit me or anyone else for that matter from putting the website back online after it was taken down. And I think that that is significant because in the original probation order on the criminal harassment charge that order actually had two conditions. One that required me to take the website down and then another one that prohibited me from publishing more information; whereas this one only has the one condition to take the website down.

With respect to the access logs. They are, in fact, publicly available on the internet. Anybody can go and view the access logs. That was done deliberately I'm sure. Well, it would have to be done deliberately. And with respect to any comments that I may have made to Detective Dent about having more material that I intend to publish, I believe it is significant to note that when the probation orders expire and I return to my country of origin my intention to continue maintaining the websites at that point would not be a violation of any Canadian law or any probation orders because I would no longer be on probation or in Canada.

Judge:

Yes. There's no -- I don't have any evidence what your country of origin is in this trial. I know what it is from past dealings --

Fox:

Right.

Judge:

-- but so I'll simply have to leave it at that, but your plan is to leave Canada at some point --

Fox:

Yes.

Judge:

-- to go to another country?

Fox:

Yes. Once I'm legally able to do so. And I believe it's also significant to point out that in my statements to Detective Dent I never once stated that I was the person who was maintaining or publishing anything on the website. For that matter again, I wasn't asked if I was the person who was doing it.

And finally, I think it is very important to point out that the probation order, in addition to requiring me to take down the website located at www.desicapuano.com it also requires me to take down the website located at www.desireecapuano.com which is, in fact, a domain and website owned by my ex-wife, the complainant, in these matters. I clearly -- well, I think it's clear that I could not possibly comply with that. And the fact that the order was attempting to require me to take down a website that I clearly do not own goes to show that it is entirely reasonable to conclude that I also do not own the desicapuano.com website.

And finally, I would like to -- oh, did I already -- yes, I would like to emphasize again that there was absolutely no evidence presented that the website was ever taken down or offline. All it was -- the only evidence that was presented was that on September 15th I believe it was the website was online again.

I believe it is entirely reasonable to conclude that at some point in that four week period the website was taken offline, but there was no evidence presented to show that one way or the other. And I believe that's all I have. Thank you.

Judge:

Thanks, Mr. Fox.

REPLY FOR CROWN BY CNSL C. JOHNSON:

Johnson:

Just very briefly in reply, Your Honour. I do point out that in the Crown's submission it is entirely speculative to suggest that someone else put up the website after it was taken down and there is no evidence in fact that it was ever taken down, and there is no evidence that someone else controlled the website. I say that that's speculative, particularly given the admissions made by Mr. Fox in the interview, and the website itself which is written in the first person in the name of Mr. Fox.

Judge:

Thanks, Mr. Johnson.

[REASONS FOR JUDGMENT]

Johnson:

With respect to sentencing, Your Honour, there are some -- there's a judgment from the Supreme Court that I filed on the last occasion and I just want to inquire with --

Judge:

Is this from a -- Madam Justice Heather Holmes.

Johnson:

Yes.

Judge:

I read it before when it was posted on the Supreme Court website but I haven't seen it recently.

Johnson:

What I'm going to suggest, Your Honour, is that -- I am seeking a lengthy jail term given that this is a multiplicity of breaches that have occurred. But I'm prepared to do that either at twelve o'clock. I want to give Your Honour the opportunity to read that decision because it contains much of the background, and I also want to be able to provide the court and Mr. Fox with an updated copy of his record which I -- the copy that I have is missing an entry.

Discussion of Court Ordered Psychiatric Assessment.

Rideout seems to be putting an awful lot of effort into trying to persuade me to agree to a psych assessment, without that assessment being recorded, and relying only on the psychiatrist's written report to the court.

I repeatedly tell Rideout I have no objection to participating in a psych assessment, as long as it's recorded and a copy of the recording is provided to me. Obviously, Rideout is resistant to this because then the court appointed psychiatrist would not be able to make the false diagnosis the court and/or the Crown want. But at the same time, Rideout obviously cannot admit that. So, instead he tries to entice me by suggesting that the psych report could expose mitigating circumstances which could result in a decreased sentence (which is, of course, a load of crap - psych reports prepared by court appointed psychiatrists rarely ever benefit the defendant).

Ultimately, Rideout orders the psych assessment regardless. But as you'll see later, the assessment never happened and Rideout blames me for that (2021-01-21 p1l23-30) even though it was because either the court or the Crown forgot to schedule it (2021-02-02 p1l19-33). Typical smug, superiority bullshit - they fuck up and make a mistake then try to make it seem like it's my fault. Have you ever noticed that the mentality and behavior of the Canadian judges and prosecutors is identical in so many ways to the mentality and behavior of Capuano?

Judge:

Mr. Fox, you're facing potentially a long jail sentence. However, have you ever talked to a psychiatrist about your -- you're a bright fellow. Would you be prepared to talk to a psychiatrist about your feelings and emotions and that sort of thing? It could potentially help you. You don't have to but -- because you're in jail anyways.

Fox:

Mm-hmm.

Judge:

You are going to get out at some point. It's not like you're not getting out. But if we had someone speak to you, would you be prepared to cooperate with a psychiatrist?

Fox:

I would cooperate fully only if it's recorded and I can publish those recordings which I know they're going to say no to. They already have before. I have had --

Judge:

Well, there's -- there's patient-client privilege.

Fox:

Which is to protect the patient and so if the patient waives that right, it's up to the patient.

Judge:

I mean, what you do with the report is your business --

Fox:

Mm-hmm.

Judge:

-- but there may be requirements on a probation order that you not publish certain things. However, as you say, if you go back to your country of origin, you may or may not be in compliance with their law with respect to any information. But I just want to know if you would cooperate with a psychiatrist and I'll decide what to do with the report, but you will be getting a copy of that report.

I told Rideout I'm willing to do a psych assessment, but only if it's recorded and I'm permitted to publish the recording. Then Rideout says I can do what I want with the report. What report? See, again Rideout doesn't even listen. Who's talking about the report? I said "recorded", not "reported".

I'm not interested in the report the psychiatrist would provide because I know how it works. The psychiatrists who work for the Forensic Psychiatric Services (FPS) are there to make whatever diagnosis the Crown and/or the court want them to make, regardless of the psychological condition of the accused. They will say, in their report, whatever the court wants them to say. And they will never agree to allow the sessions to be recorded because then they can't make a false diagnosis because if the accused publishes the recording it will prove that the diagnosis is false. And if you say the kind of stuff I just said then they'll claim you have paranoid delusions. And if you show them physical proof of them having done those things in the past they'll just look at you blankly like they're in a trance.

I had to do a psych assessment as part of the probation order on the criminal harassment charge. I wanted it to be recorded. FPS refused. When I went for the assessment session they made a big deal about me not bringing in any recording devices and made me leave my phone, laptop bag, jacket, et cetera, in the reception area so that I couldn't record the session. Little did they know I hid a digital recorder in my ass! So I recorded the session and published it anyway psych assessment interview. And guess what? They couldn't claim in their report that I had any mental illnesses because the recording of the session was publicly accessible on the internet. So they said I'm all fine and don't need treatment psych assessment report.

[By they way, I'm kidding about hiding the recorder in my ass. It was in an inside pocket in my sweater. I'm not that much of a freak, for Christ's sake.]

Fox:

I think in these cases, I've dealt with Forensic Psychiatric Services before. I had a psych assessment before, it was recorded and it was published. But I have a pretty good idea of how those types of agencies and departments function.

I've spoken with many other people in custody as well who have had PSRs and who have spoken with them.

Judge:

We're not going to get a PSR here.

Fox:

Right. Right. And I can say that there is absolutely no way that I would cooperate with any -- any dealings with a psychiatrist provided by the court or the government unless it's recorded and a copy of the recording is provided to me.

Judge:

You say there is a prior psychiatric report?

Fox:

Yeah. And I was found to be perfectly fine.

Judge:

When was that report done?

Fox:

That was -- I spoke with the psychiatrist January 2019.

Judge:

And it was contained in the court file somewhere?

Fox:

That I have no idea. It was a requirement of the probation.

Johnson:

I don't have a copy of that. I thought that Justice Holmes referenced -- that when she sentenced him -- a psychiatric report but that would have been before the date that Mr. Fox mentioned.

Judge:

Right. Yes.

Fox:

The Crown at that time -- at that sentencing was pushing for a psych assessment and it wasn't done but then it was added to the probation. So after my release from custody in December of 2018 then I had to have that one.

Johnson:

I don't -- that doesn't sound like an actual report though, Mr. Fox. That sounds like you were required to see one.

Fox:

Yes, an intake assessment or something, and then they did a report and I have a copy of the report that I got through Freedom of Information which hasn't been published yet because there just hasn't been time. But I do have it in paper format.

Re: My supposedly "obsessive behaviors"

Rideout says the reason he wants a psych report is he would like some collateral information about what's going on. He says he's concerned about my "obsessive behaviors".

At this point I run out of patience with Rideout and all the bullshit lip service of the entire legal process. I delve into a rant, detailing some of the things Capuano has done over the past 20 years that have caused me to despise her. And after all the things I mentioned about what Capuano has done and how her actions have directly harmed my life, Rideout says "And that's why it's my opinion that you have certain obsessive overtones."

Oh my God, do you see the fucked up mentality of people in Canada? Capuano should be allowed to do whatever she wants to me. She should be allowed to destroy my life and take away the child she abandoned and cause me to be deported then cause me to be sent to prison for 3 years based on false allegations. And I'm not supposed to do a single thing back to her. I'm not supposed to retaliate. Hell, I'm not even supposed to defend myself. I'm just supposed to lie on the ground and let her keep squishing my head into the mud. And if I do fight back, by doing nothing more than gathering proof of all the fucked up things she's done and publishing that proof on a website, then I'm "obsessive"? Fuck off! This whole fucking country with all it's man-hating, tyrannical feminists and their pussy whipped "white knights" can go fuck itself.

Judge:

Because I'd certainly like some collateral information as to what's going on.

Fox:

I can tell you what's going on in my head. My ex-wife took off when our son was a year and a half. I raised him by myself for nine years. I had no contact from her at all and then she shows up after nine years, grabs him, runs off to another State, tells a bunch of lies to the Family Court to try to get emergency custody. The court sees through her lies, orders her to return him to me after three months, but then she spends the next year and a half trying to cause all kinds of problems for me while I was living in Los Angeles.

I ended up getting deported to this country that I don't really want to be in in the first place, but I stay here for a while and everything was going fine, and then when I decided to go back to the U.S. then I get charged with this criminal harassment nonsense, and since then it's just been this going on and on.

Judge:

I know. It's gone on and on too long.

Fox:

Now, as far as why I hate my ex-wife so much and why I want her to get throat cancer and die, a person cannot abandon a child and then come back nine years later, grab the child and run off to another State and tell a bunch of lies about how the father's been hiding the child for nine years and expect that she can just cry in the court and get everything she wants. That's why I created the website to show everybody that she's not this sweet, caring, innocent person. She's an evil, manipulative, sociopath.

Judge:

And that's why -- it's my opinion only --

Fox:

Mm-hmm.

Judge:

-- not as a person but as the trial judge that you have certain obsessive overtones and that's why --

Fox:

Yes. I have not had any contact --

Judge:

Let me finish.

Fox:

Sorry, go ahead.

Judge:

Right. And I'm concerned about this obsessive behaviour and that perhaps if you spoke to a psychiatrist that would give me some insight and you some insight into what's going on with what I call with these triggers that get you going.

Fox:

These triggers? Well, the last time that I had any contact with my son was two days before I was arrested in 2016.

Judge:

How old is your son now?

Fox:

Just turned twenty a couple of months ago.

Judge:

I mean time's ticking by and pretty soon he's going to --

Fox:

My life is over, man. Come on. I was a software engineer. I had a fine life. I had a good career. I had my son. Everything was fine. And then this psycho comes back into my life. Everybody believes every word she says. She never has to show any proof of anything, but then I just try to defend myself.

Judge:

It's court orders that are important and require compliance and I'm just concerned -- not just, I am very concerned about your obsessive behaviours and would it not -- I mean I can order that there be a psych -- is the FPI-- I used to be defence counsel, Mr. Johnson knows, he does a lot of defence work. I did lots of big --

Fox:

Yes.

Judge:

-- defence cases, murders and so on where I had clients being seen by psychiatrists. There -- there are really good psychiatrists up here.

Fox:

Uh-huh.

Judge:

They are highly trained and you know that they're part of the Royal College.

Fox:

Yes. I have no doubt about their competency, but if their purpose, if their goal is to aid the court or aid the Crown and not me -- just like what the lawyers here --

Judge:

Their purpose --

Fox:

I'm representing myself.

Judge:

The purpose would be to aid me and to aid you, not the Crown.

Fox:

Okay.

Judge:

It's an aid for me.

Fox:

If they're fair and objective then there would be no reason in my mind why they would object to having it recorded and published. But let me give --

Judge:

That would be my call but I just need to -- because if we're going to go that route, we'll go that route because Mr. Johnson's going to be seeking a fairly significant jail sentence.

Fox:

He can seek five years, I don't care.

Rideout points out that Johnson is seeking a "fairly significant jail sentence". I tell him Crown can seek five years for all I care. My interest is in truth and justice. Like I said, they can lock me up for the rest of my life - as long as I'm able to publish and expose the corruption they've been engaging in in order to convict and imprison me, so I can prove that I'm not actually guilty of the allegations against me, then I don't give a crap.

But you'll notice, Rideout is really trying hard to get me to go along with the psych assessment. Rideout and the Crown are using the threat of a "very significant jail sentence" to try to convince me to agree to a psych assessment. You know why? Because they want the psych department to claim a diagnosis of some mental illness so they can use that to discredit me and to justify adding all kinds of outrageous conditions on a probation order. Because that's what they do. And once you've been "diagnosed" with a mental illness you're pretty much fucked for life. You will never have any credibility. Even if the diagnosis is false.

And that's why you should never participate in court ordered psychiatric treatment unless it's recorded and you get a copy of the recording. Because court appointed psychiatrists are not your friend, and they are not there to help you. This is not paranoia. If I was just being paranoid then they wouldn't adamantly refuse to let the sessions be recorded.

Judge:

But hold it -- it's me and you.

Fox:

Sorry, sorry.

Judge:

Right. Don't worry about Mr. Johnson, it's me and you that are discussing this. I could benefit a lot, but potentially you could benefit from a psychiatric assessment. It's not to say you're not fit or anything -- it's got nothing -- you are fit. You understand the process here, you're a bright guy. Is to see where I can go with you that might assist you. Because if there's going to be future probation, a probation order is supposed to be rehabilitative.

Fox:

But -- okay.

Judge:

Not punitive. It can have punitive aspects but it's mostly for your rehabilitation.

Fox:

I under -- understand that, but the court keeps ignoring this fact that there's case law to support this as well, that if a person has no status in Canada and they're ultimately going to be deported or leave Canada it's stupid and pointless to put resources into trying to rehabilitate them with probation which is why CBSA is supposed to deport people.

Johnson:

I wonder if I could just interject, Your Honour. Mr. Fox is entitled to obviously make submissions. It is in dispute that he -- he maintains that he's an American citizen. The evidence that the Crown has is that he's a Canadian citizen.

Judge:

I'm trying to remember.

Johnson:

Just to --

Judge:

I've dealt with him before and I --

Johnson:

Just to alert the court.

Judge:

I did a bail hearing with you a long time ago.

Fox:

Yes. The evidence that the Crown has is allegations from U.S. authorities. The evidence that I have is documents from IRCC that say I was not born in Canada. I mean that's evidence. Allegations from --

Judge:

I mean that's something -- certainly you can benefit, telling the psychiatrist for example.

Fox:

Right. Right.

Judge:

Do you see what I'm driving at?

Fox:

Yes. But again, I have no objection to speaking with a psychiatrist as long as it's recorded. Because here's what happens.

Judge:

They don't ever -- sometimes they record, they take notes.

Fox:

Yes, I understand that.

Judge:

And then they prepare a report for presentation to the court.

Fox:

Here's been my experience and this happened with Justice Holmes with the sentencing, the reasons for sentencing. I provided all this evidence. It should have been mitigating. Yet none of it shows up in her reasons for sentencing. It's the same thing that the psychiatrist would do as well. They'll ignore everything that's not consistent with what they want to.

I try to explain to Rideout that my experience has been that what certain types of people do is they ignore any evidence and information which is not consistent with what they want or expect to believe. And that is what I anticipate a court appointed psychiatrist would do. He would only pay attention to information which would support the diagnosis he wants to make; when necessary, he would twist, distort, or misrepresent my statements to fit that diagnosis; and otherwise, he would simply ignore any statements which would be contrary to that diagnosis. And the report he would provide the court would only contain information which would be consistent with the diagnosis he wanted to make, regardless of what actually occurred during the session.

And, of course, if the session wasn't recorded and I claimed the psychiatrist was misrepresenting my statements, or claiming I said things I didn't say, then I would have no way to prove it. And, of course, because he's a psychiatrist and I'm a convicted criminal, everybody would believe him and nobody would believe me.

And that is why I will only speak to them if it's recorded.

Judge:

I can absolutely assure you, sir, I would not ignore a psychiatric opinion. It's the weight I would attach to it. I would not ignore it. You'd get a copy of that.

Fox:

Right.

Judge:

The Crown would get a copy of that. It's a -- opinion evidence is designed to assist the court. It's my decision that's final, not the opinion of the psychiatrist and that's a -- what's called a NCRMD case, not criminally responsible, and that's not applicable here.

Fox:

Right.

Judge:

So it's opinion evidence and I can either accept it or reject it, but it's my opinion that finally counts with respect to the imposition of a sentence.

Fox:

And I'm not suggesting that you would ignore stuff that would be in the report. I'm suggesting that the psychiatrist would ignore these significant evidence that I provide that isn't consistent with what he's trying to present to the court. That's been my experience so far. And these are not just vague allegations that I'm making. They're all documented on the website, specific instances of me providing evidence --

Judge:

No, you're still dancing around a bit with this. I take it you're not that keen to talk to a psychiatrist?

Fox:

No. I will speak with a psychiatrist as long as it's recorded and a copy of the recordings are provided to me. Preferably video but audio would be fine.

Judge:

Well, normally they record. They have a tape recorder. They'll record some of that.

And all of a sudden, out of the blue, Rideout pulls a 180 and now he's claiming the Forensic Psychiatric Services (FPS) folks normally do record the sessions. Earlier, Rideout almost came right out and flatly said they don't every record the sessions, but caught himself before he finished the statement (p35l27-28).

Okay, judge, let me say this as clearly and directly as possible: Fuck right off! First, I absolutely know from my own first hand experience dealing with FPS that they most definitely do not, under any circumstances, allow the sessions to be recorded. And, second, do you think after all that discussion we've just had that if you suddenly say "Hey, you know what? They do record the sessions." I'm just going to believe you? Then again, the overwhelming majority of people I've encountered in Canada do, actually, blindly and completely believe every word out of the mouths of supposed "authority figures".

Fox:

Mm-hmm.

Judge:

Right now we're dealing with COVID-19 so they may be doing that by way of a telephone or MS Team, what's called Microsoft Team.

Fox:

Mm-hmm.

Judge:

A psychiatrist -- I would want him or her to observe you to -- and then you could see the psychiatrist as well. It builds a patient-doctor trust.

Fox:

Okay.

Judge:

Now, the information that would -- I'm going to direct, for the purposes of the sentence, that on an expedited basis, Mr. Johnson, that a psychiatrist assess Mr. Fox in relation to obsessive compulsive situational factors.

Fox:

Could I -- could I make one more point to respond what you were saying earlier about my obsessive behaviour.

Judge:

And recommendations for treatment for Mr. Fox. A copy today, Madam Registrar, of these proceedings. It is to be prepared on an expedited basis of everything that's happened in this courtroom, and to be provided through Mr. Johnson's office to the psychiatrist who is going to be dealing with the assessment, and a copy for Mr. Fox as well at North Fraser -- you're at North Fraser, right?

Fox:

I am, yes.

Judge:

Okay. I'm going to make sure you get a copy of these proceedings as well. So it's all open.

Fox:

Right. Well, I'm going to appeal it anyway so I'm getting a copy from here too.

Judge:

No, that's fine. I'm just saying what I'm going to do.

Fox:

Sure.

Judge:

And I'll have to have you back, and just so you know and I'm not holding Mr. Johnson to this 'cause you've got probably what's called time on remand. Mr. Johnson, what range of sentence and -- range doesn't straightjacket a court, it's just simply a guideline. What range of sentence would you be considering?

Johnson:

Eighteen months to two years in jail.

Judge:

Thank you. Which would mean, Mr. Fox, either way a probation order could be pronounced and a psychiatric opinion could assist the court with respect to conditions of probation.

I'm going to urge that, as well, in the communication -- keep in mind Mr. Johnson is an officer of the court, he'll follow court directions, I know that; that whoever is the assisting psychiatrist that if he or she is able to tape record what's taking place or take thorough notes, that will be done. You're not going to be cross-examining the psychiatrist. The psychiatrist there is to assist, and it could be extremely helpful to me, and I think helpful to you.

Fox:

Given --

Judge:

It may mitigate the sentence.

Fox:

Well, given that the Crown is talking about eighteen to twenty-four months, and given that I have that original probation order, I'm stuck here in Canada until December -- the end of December of next year anyway, I'm going to have no objection to just agreeing to that and moving along with this. If we could just sentence me to twenty-four months with no probation so that way when that's finished then I can leave the country because it seems ridiculous to me to try to keep a foreign national here in the country so you can continue to squeeze me and do all this stuff.

Judge:

I can't do that. I've now directed a preparation of a psychiatric report.

Fox:

Okay. Now, bear in mind I'm only going to speak to them if they record it and provide a copy of the recording to me.

Judge:

I'm going to have -- I'm going to have -- we're going to get going on this.

Fox:

Sure.

Judge:

And have you back -- back in front of me in pretty quick order to see if this is going to work or not work. If it doesn't work that's unfortunate because it could be quite a useful aid for me

I don't get why this judge is so obsessed with this God damned psych report. [Actually, that's not true. I completely understand, as explained in my comments above (p31l14-25, p34l24-26).] I've already told him exactly why I hate Capuano, and why I'm willing to spend to the rest of my life in jail if necessary in order to expose the corruption and misconduct that has been going on in my cases. But it's like he (and all the other judges and prosecutors) have some kind of mental block that whenever I explain something logically and rationally, their brains shut down until I'm finished explaining.

You don't need to be a psychiatrist (nor a psychologist) to understand your behavior. We all have access to the same textbooks and journals that psychiatrists have access to. It's not like they have some secret knowledge that's hidden from the rest of us. Stop being fucking sheep, people! Read a book! Educate yourselves! Stop always deferring to those so-called experts to tell you what's what. You have a brain - use it, for fuck sakes!

and we can get on with the sentencing process.

I don't think Mr. Johnson's position is going to stray much from his position today or in January when we're going to come back, because you're going to come back in front of me -- Madam Registrar, can we email the JCM, I think Carolina Marcher [phonetic] is in her office.

Clerk:

Yes, Your Honour.

Judge:

My availability for the week of January the 18th for 20 minutes or so. It won't be for sentence, it's just for -- I'm going to call it as a call date with Mr. Fox to see where we are with respect to a psychiatric assessment.

Johnson:

Just with respect to that week, Your Honour, I'm in Kelowna the beginning of that week, and so the days I can be available are the 21st and 22nd.

Judge:

If I'm available the 21st and/or the 22nd for 20 minutes or so with Mr. Fox, subject to protocols coming in by video link. Maybe we'll have a vaccine --

Clerk:

Thank you, Your Honour. So your availability January 21st or 22nd for 20 minutes?

Judge:

Yes, please.

Clerk:

Thank you.

Judge:

And I can double-book myself. Well, I can't, the JCMs can.

Johnson:

Could we -- this is for the -- an appearance --

Judge:

Just to see where we're at.

Johnson:

And so I'll suggest the 21st if that's suitable, that's the earlier of the two days and I can be available the morning or the afternoon that day.

Judge:

Okay.

Clerk:

One moment, Your Honour.

Judge:

Sure. And a copy of the transcript to me as well, please.

Johnson:

Could I provide Madam Clerk with my email address for the transcript.

Judge:

The transcript can be sent to me electronically. Do you want it sent to you electronically as well, Mr. Johnson?

Johnson:

Yes, please. And I will -- once I receive it I will print it and send it to Mr. Fox.

Fox:

Could I receive it electronically as well? I mean --

Judge:

Can you print it out at North Fraser?

Fox:

I can have pages printed out if I need or have the entire thing printed out. It's just that over time I started amassing more and more paper and the amount of stuff that gets onto a single CD, it's much easier to keep in my cell or to --

Judge:

It's much easier?

Fox:

Well, yeah. I mean, previously I had literally four legal boxes of material.

Judge:

Do you want Mr. Johnson to -- it could be pressed to disk.

Johnson:

I can have that sent to Mr. Fox electronically in the normal way that the Crown discloses evidence to Mr. Fox. Is that -- would you --

Fox:

Can I get it on a CD? I mean this is not disclosure material so it's not like there's some big secret or something like that, right?

Judge:

I don't know what Mr. Johnson's capacity at his office -- he's got some younger -- I shouldn't say younger lawyers -- he's got some associate lawyers --

Fox:

Yeah.

Judge:

-- that may know how to do that. If it can be done electronically, burn to disk and send it, Mr. Johnson, let's do that.

Fox:

They often provide things on CD or DVD.

Judge:

So we'll see what we can do to accommodate you.

Fox:

Thank you.

Johnson:

If I'm able to do that. I should say the Crown has a protocol for how they deal with giving information to Mr. Fox.

Judge:

He's holding a disk there.

Johnson:

If we can give him a disk I'm happy to do that.

Judge:

Madam Registrar?

Clerk:

Yes, I apologize, Your Honour. I was online with the JCM and I don't know if I missed anything that I need to advise the transcript people know.

Judge:

Just that it's to be sent -- I don't need the paper -- it's to be sent to me electronically.

Clerk:

Electronically.

Judge:

And electronically to Mr. Johnson. He will then take care of getting something electronically to Mr. Fox, and then he can also electronically get it to whoever the psychiatrist is.

Clerk:

Okay. Thank you, Your Honour. And Carolina Marcher indicates that you are -- she said that either date would work. You are in a trial court, she didn't know which one at this point so if we could just adjourn it to the JCM list.

Judge:

To the JCM list, return date 21st of January 2021 by video link. My preference is, Madam Registrar, that I be -- I can do it at 9:30 in a courtroom such as 101 or 102. It won't take very long. It's just to see where we're at and then I can go back to my trial court.

Johnson:

Thank you, Your Honour.

Fox:

Umm --

Judge:

Mr. Fox?

Fox:

But I would like to state one last thing with respect to my apparently obsessive behaviour. In addition to all of the other stuff that Capuano has done to me and to our son over the years, it has resulted in me being up here. Now, I am up here and I'm stuck up here so I continue to be subjected to her actions and she continues to be completely unaffected by this website and all.

I mean, consider if you will, this desicapuano website has been online for, what, about two years now. She has done absolutely nothing to get it take offline. She's done nothing in Arizona. It's hosted in Arizona.

Judge:

I don't know.

Fox:

She's not affected by any of this. And so how am I supposed to put this behind me and move on when my life continues to be adversely affected because of her conduct. It's not like it's over and I can move on and get back with my son or have a new life or something. I'm still going through it.

Judge:

Mm-hmm.

Fox:

So that's why I'm apparently obsessed about this.

Judge:

Okay. We'll go over to that date and place then, please, at 9:30 in the morning. Thank you, Mr. Fox. Thank you, Mr. Johnson.

Johnson:

Thank you, Your Honour.

Judge:

Madam Registrar, can you advise the JCM that I'm available to take on some other matters if need be.

Clerk:

Yes, Your Honour.

Judge:

Thank you.

(PROCEEDINGS ADJOURNED TO JANUARY 21, 2021, AT 9:30 A.M.)

Transcriber: J. Murao

Transcript of Trial Proceedings (2020-11-26)

Synopsis

INDEX

EXHIBITS

RULINGS