Online harassment was only a 'game' of witty banter, says Patrick Fox's lawyer

Closing arguments wrapped up in a Vancouver courtroom Monday in the case of Patrick Fox, a Burnaby, B.C., man accused of criminally harassing his ex-wife online.

Fox's lawyer told the 12-member B.C. Supreme Court jury they may not like his client or the language he used in emails and online about his former wife, but that does not mean he is guilty.

Tony Lagemaat characterized the back-and-forth between Fox and Desiree Capuano as an intense custody dispute that ended in a nasty game of "witty banter" and insults," not threats aimed to cause fear.

Earlier in the day, Crown Counsel Mark Myhre urged the jury to convict saying the accused's "obsessive all-consuming hatred" for his ex left her fearful and tormented.

"He would like to see her dead. And he actually did try to make that happen," Myhre told the jury.

But Fox's lawyer later countered pointing out that Capuano initiated many emails, then "taunted and provoked" her ex.

She called him various names, from sunshine to Sally, describing him in some of their 400 emails as sad, pathetic, high, lonely, sub-human, delusional — even at one point comparing him to Cthululu, a mythical cosmic entity created by author H.P. Lovecraft in a 1928 short horror story.

Lagemaat admitted his client used vulgar and insulting language, but pointed out to the jury the trial is not a contest about who said the worst thing. 

He said that Capuano never needed a tissue, despite "crying" during her direct evidence and became hostile under cross-examination.

He read out emails in which Capuano toyed with Fox, thanking him for the "shrine" of a website that gave her an ego boost, adding "looking forward to more."

Lagemaat said she did not act like a woman who was afraid, despite testifying that Fox left her fearing for her life.

Fox represented himself on a charge involving firearms that ended up in California, saying he did not believe the Crown proved those guns were ever shipped. He was polite, quiet-spoken and seemingly efficient in acting for himself, even earning praise from the judge for keeping his submissions short.

To convict Fox of criminal harassment, the Crown must prove repeated communication and threatening conduct that caused fear for physical, emotional and psychological well-being, Fox's lawyer explained.

And he attacked a key piece of evidence the Crown used to illustrate that Fox frightened his former partner.

In an email, Fox described how he told his own son he hated Capuano so much he would have "no qualms" about shooting her if — as the Crown noted in court — "he could get away with it."

But in closing, his lawyer underlined the last part of that email, saying it is clear Fox had no violent intentions.

"I would never deliberately cause you physical harm," Fox wrote.

The judge is expected to charge the jury tomorrow, and deliberations in the trial are expected to begin soon after, weeks ahead of schedule.