NEWMARKET COURT FILE NO.: CR-19-02717-00AP and CR-19-10726-00AP

DATE: 20201006

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ROBERT LEPP

Appellant

B. McCallion, for the Crown

Self-Represented

HEARD: September 18, 2020 (by Zoom videoconference)

DAWE J.

I. Overview

[1] Robert Lepp has been before the criminal courts for several years facing various charges. The original criminal charges against him arose out of disputes between him and various persons associated with the Town of Aurora park system, which have also led to civil litigation. More recently, he has faced charges of breaching court orders that prohibited him from “mentioning” the names of the original criminal complainants on his blog. Some of these latter charges have resulted in convictions, which Mr. Lepp has appealed. This judgment addresses two of his summary conviction appeals.

[2] In April 2019 Mr. Lepp was charged with two counts of having breached a term of his bail recognizance, contrary to what was then s. 145(3) of the Criminal Code.[^1] It was alleged that he had posted entries on his blog on two different dates in March 2019 in which he had “mentioned” the names of one or more of the original criminal complainants. On December 4, 2019, following a two-day trial in the Ontario Court of Justice at which Mr. Lepp represented himself, Rose J. found Mr. Lepp guilty of one count and acquitted him of the second count.

[3] The blog post that gave rise to the finding of guilt had included a photograph of a stack of documents from Mr. Lepp’s civil action, including his Statement of Claim, in which the three original criminal complainants were named as defendants in the style of cause. When the photo in the blog entry is viewed on a sufficiently large computer screen, the names in the document become visible.

[4] Rose J. placed Mr. Lepp on probation for three years, on terms that replicated some of his bail terms, including the term that prohibited Mr. Lepp from “mentioning” the names of the original three complainants on his blog. The next day, Mr. Lepp made a further blog post that included an image of a letter sent to his wife by opposing civil counsel. One of the names that Mr. Lepp had been ordered not to “mention” appears in the body of this letter.

[5] Mr. Lepp was arrested on Friday, December 6, 2019 and charged with breaching both his bail and his probation orders. He was held in custody over the weekend and on Monday was brought before Madam Justice M. Henschell in the Ontario Court of Justice. Mr. Lepp, who on this occasion was represented by counsel, proceeded to enter a plea of guilty to the breach of probation charge (Criminal Code, s. 733.1(1)). Henschell J. accepted his guilty plea, and also accepted a joint submission on sentence and imposed a fine on Mr. Lepp.

[6] Mr. Lepp, representing himself, separately appeals both convictions to this Court, and also appeals against the sentence imposed by Rose J. on the breach of recognizance charge.

[7] On September 18, 2020 I heard his two appeals back-to-back by Zoom videoconference and reserved my decisions.

[8] For the reasons set out below, I have concluded that Mr. Lepp’s appeal against his December 4, 2019 conviction for breaching his bail order must be allowed and a new trial ordered on this charge. In my view, the trial judge’s interpretation of the mental element of the s. 145(3) offence cannot be reconciled with the Supreme Court of Canada’s subsequent decision in R. v. Zora, 2020 SCC 14. I do not agree with the Crown that this error was harmless in the circumstances of this case, and accordingly do not find that Mr. Lepp’s conviction can be salvaged by invoking the curative proviso. However, I would not give effect to Mr. Lepp’s argument that the trial judge erred by not staying the charge for abuse of process, and would order a new trial rather than entering a stay of proceedings.

[9] I have reached a different conclusion in relation to Mr. Lepp’s appeal against his December 9, 2019 conviction for breaching his probation order. To the extent that Mr. Lepp seeks to challenge this conviction by attacking the validity of the probation order itself, he is barred from doing so by the rule against collateral attack. I am in any event not persuaded by his argument that the name of the particular complainant whose name he posted on his blog should not have been included in the probation order term. Mr. Lepp also challenges the validity of his guilty plea, but he has not supported his claims that his plea was involuntary and inadequately informed by adducing any fresh evidence. In my view, neither claim is supported by the existing record. Accordingly, Mr. Lepp’s appeal from this second conviction is dismissed.

II. Mr. Lepp’s appeal against the December 4, 2019 bail breach conviction and sentence

A. Factual background

1. Mr. Lepp’s bail orders

[10] On August 23, 2018 Justice of the Peace R. Zito issued a bail order releasing Mr. Lepp on various charges. Term #4 of this bail order stated that he was:

… not to mention Helen Clarke, Jaclyn Solomon, Mandie Eddie or the TIME 4 PAWS dog walking business in any on-line media.

The first named person, Ms. Clarke, is the owner of the “Time 4 Paws” dog walking business. At one time she and Mr. Lepp were both volunteers who helped run a leash-free dog park in Aurora, but their relationship soured and Ms. Clarke eventually made several criminal complaints against Mr. Lepp. He in turn commenced civil proceedings against her and others, including the Corporation of the Town of Aurora.

[11] The second named person, Ms. Solomon is a paralegal whom Ms. Clarke retained to represent her in connection with Mr. Lepp’s civil suit. Ms. Solomon later made criminal complaints of her own against Mr. Lepp, and he in turn has made her a defendant to his civil action.

[12] The third named person, Ms. Eddie, is a former Town of Aurora by-law enforcement officer who in June 2017 issued a ticket to Mr. Lepp for having his dogs off leash in a park. She later made criminal complaints against him and has also sued him for defamation.[^2] He in turn has named her as a defendant to his ongoing civil action.

[13] Mr. Lepp was subsequently charged with several counts of breaching the August 23, 2018 bail recognizance, and on September 1, 2018 Justice of the Peace C. McLean made a new bail order in relation to both the original and the new charges. Term #4 of the new bail order was identical to Term #4 of the previous August 23, 2018 bail order, as set out above.

2. The March 18, 2019 blog post and bail breach charge

[14] On March 18, 2019, Mr. Lepp posted an entry on his blog, labelled “BL19-031”, in which he discussed an application that had been brought by the Town of Aurora to have him declared a “vexatious litigant” under s. 140 of the Courts of Justice Act.[^3] His blog post included a photograph in which he compared the materials he had filed in his civil action against the much larger stack of documents that had been filed by the Town of Aurora, with accompanying commentary about the relative sizes of the two stacks. The top page of the stack of Mr. Lepp’s filings was the front page of his Statement of Claim and showed the style of cause in his civil proceedings, in which Ms. Clarke, Ms. Solomon and Ms. Eddie are all named as defendants.

[15] On April 2, 2019 Mr. Lepp was arrested and charged in relation to this blog post with failing to comply with Term #4 of the bail order, contrary to s. 145(3) of the Criminal Code. He was also charged with a second count relating to a different blog entry, labelled BL19-043, which he was alleged to have posted on March 26, 2019. This second blog entry was alleged to have included a scan or photo of the style of cause from a 2017 civil judgment, not involving Mr. Lepp, in which Ms. Eddie was one of the named defendants.

3. The trial proceedings

[16] The Crown elected to proceed summarily on the two s. 145(3) charges, and on December 2, 2019 Mr. Lepp appeared for trial in the Ontario Court of Justice before Mr. Justice D. Rose (“the trial judge”). After some discussion, Mr. Lepp confirmed that he intended to represent himself.

[17] After Mr. Lepp was arraigned and entered pleas of not guilty on both counts, the trial judge sought to assist him by giving him an overview of the essential elements of the s. 145(3) offence. He explained that Mr. Lepp was charged with breaching the term of his bail that barred him from mentioning the names of the three listed people “in any on-line media”, and then told Mr. Lepp:

So, the Crown has to prove that you were bound by a recognizance and that you violated that recognizance by mentioning these people and that business in online media. The Crown bears the burden of proof, Mr. Lepp, so those are the essential elements of the offence. They have to prove that there is a recognizance and it mentions you; you were before the court and you did those things and you did so intentionally. [Emphasis added]

[18] The trial continued over the next two days. The Crown called as witnesses two police officers who gave evidence about how they had gone to Mr. Lepp’s website on different days and had seen the March 18, 2019 BL19-031 blog post. A printout of this blog post and a video made by one of the officers showing him visiting the website on his computer and displaying this blog entry on his screen were made exhibits. In the printout of the blog post the text of the documents in the photo is blurred and indecipherable. However, the video shows the photograph blown up to a larger size on the officer’s computer screen, which allows the names of the three complainants to be made out as they appear in the style of cause in Mr. Lepp’s Statement of Claim.

[19] With respect to the second charge, the police had received a document by email that purported to be a printout of the March 26, 2019 blog entry (BL19-043), but when they went to Mr. Lepp’s website this post could no longer be viewed.

[20] After the Crown closed its case Mr. Lepp called one defence witness, a senior police officer who, as the trial judge later noted in his reasons, “knew little about this particular case” and did not have much relevant evidence to give.

4. The trial judge’s decision

[21] The trial judge gave his judgment orally on December 4, 2019. He began by noting that he was satisfied that Mr. Lepp was bound by the September 1, 2018 bail recognizance on the relevant dates in March 2019. He then turned to the issue of mens rea, and stated:

The defence argues that [the] mens rea component of the charge is not made out. Mr. Lepp argues that there is no evidence of willfulness. There can be direct evidence of mens rea or it can be inferred from the facts of the case. In this case I am satisfied that the blog post 19-031 was intentionally posted. The nature of the blog post involves intention. It takes some doing to post material to a web site. That is a matter of intention. Blog post 019-031 is clearly something that was intentionally posted. It is a long posting of sentences which follow some coherent form. It is topical insofar as the blog discusses ongoing disputes with municipal authorities and individuals. The nature of the posting, namely that it had to be sent to a website for incorporation into its blog space, as well as the format and content of the blog furnish overwhelming evidence that the blog post 019-031 was intentionally posted.

[22] In the balance of his reasons, the trial judge explained why he was satisfied that Mr. Lepp was the author of this blog post, and why his website “was a form of online media”. He then concluded:

Having reviewed the video exhibit 3 and heard the evidence of Detective Constable Irwin, I am satisfied that blog 019-031 has on it an image of the front page of a Superior Court action. It is not perfectly clear, but it is clear enough that I can easily find the following names on it. Plaintiff, Robert Lepp. Defendants, Regional Municipality of York, the York Regional Police Services Board, York Regional Police, The Corporation of the Town of Aurora, Mandie Eddie a.k.a. Mandie Crawford, Helen Clarke a.k.a. Helen Clarke-Jennings, Jaclyn Solomon. Ms. Clarke, Ms. Eddie and Ms. Solomon are all named persons in the recognizance dated 1st of September 2018, condition number four, namely the no posting on the internet term, or online media term.

He accordingly found Mr. Lepp guilty on the first s. 145(3) count.

[23] The trial judge went on to explain that he was acquitting Mr. Lepp on the second count because “no witness saw blog 019-043 online”, raising a reasonable doubt in his mind as to whether it had actually been posted on “online media”, contrary to Mr. Lepp’s bail term.

B. Analysis

1. The Supreme Court of Canada’s judgment in R. v. Zora

[24] Coincidentally, on the same day the trial judge gave his judgment in Mr. Lepp’s case, the Supreme Court of Canada heard argument in R. v. Zora, supra, an appeal from British Columbia that called on the Court to resolve a longstanding juristic debate over the correct interpretation of the mental element of the s. 145(3) offence. The Supreme Court of Canada released its decision six months later, on June 18, 2020, at which time Mr. Lepp’s summary conviction appeal from his December 4, 2019 conviction had not yet been heard.

[25] Mr. Lepp’s appeal was heard by Zoom videoconference on September 18, 2020.[^4] Before the hearing, on September 15, 2020, I advised the parties that pursuant to the Supreme Court of Canada’s decision in R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, I would be seeking submissions from them about the impact of Zora on the trial judge’s mens rea analysis.

[26] Writing for the unanimous Court in Zora, Martin J. noted that “[c]ourts across the country have divided on whether the mental element for the crime of breaching a bail condition … are to be assessed subjectively or objectively.”[^5] She explained further that some courts had interpreted the offence as only requiring proof of the minimal subjective intention to do the act contravened the bail condition:

Some cases follow the Manitoba Court of Appeal in Custance [R. v. Custance, 2005 MBCA 23], which simply required that the accused “knowingly and voluntarily performed or failed to perform the act or omission which constitutes the [actus reus] of the offence”, which appears to mean the Crown only needs to prove that the accused intentionally committed the act or omission, but does not need to show that the accused knew their conditions while committing that act or omission (paras. 10 and 12).[^6] [Emphasis added.]

[27] Martin J. rejected both the objective fault interpretation and this minimal subjective fault interpretation of the s. 145(3) offence, stating (at para. 4):

I conclude that the Crown is required to prove subjective mens rea and no lesser form of fault will suffice. Under s. 145(3), the Crown must establish that the accused committed the breach knowingly or recklessly.

She explained further (at para. 109):

[S]ubjective mens rea under s. 145(3) can be satisfied where the following elements are proven by the Crown:

1. The accused had knowledge of the conditions of their bail order, or they were wilfully blind to those conditions; and

2. The accused knowingly failed to act according to their bail conditions, meaning that they knew of the circumstances requiring them to comply with the conditions of their order, or they were wilfully blind to those circumstances, and failed to comply with their conditions despite that knowledge; or

The accused recklessly failed to act according to their bail conditions, meaning that the accused perceived a substantial and unjustified risk that their conduct would likely fail to comply with their bail conditions and persisted in this conduct.

[28] Martin J. observed that while an accused’s erroneous understanding of the scope of a bail term would be a mistake of law that would not give rise to a defence, “[g]enuinely forgetting a condition could be a mistake of fact and would negate mens rea”. She explained further (at paras. 116-17, citations omitted and emphasis added):

The second component of the mens rea for s. 145(3) can be met by showing that the accused acted knowingly or recklessly in breaching their condition. Knowledge in this second component means that the accused must be aware of, or be wilfully blind to, the factual circumstances requiring them to act (or refrain from acting) to comply with their conditions at the time of breach …

This second component can also be met by showing that the accused was reckless. … Recklessness requires that accused persons be aware of the risk of not complying with their condition and proceed in the face of that risk … Knowledge of risk is key to recklessness. Therefore, the accused must still know of their bail conditions in order to be aware of any risk of non-compliance. The accused must also be aware of the risk that the factual circumstances requiring them to act (or refrain from acting) to comply with their bail conditions could arise and continue with their course of conduct despite the risk. Recklessness is not, and should not through misapplication, become the same as negligence. Recklessness has nothing to do with whether the accused ought to have seen the risk in question, but whether they subjectively saw the risk and continued to act with disregard to the risk.

2. Did the trial judge err in his mens rea analysis?

[29] In my view, the trial judge’s reasons for judgment show that he interpreted the s. 145(3) offence as requiring the Crown to prove that Mr. Lepp had posted the blog entry intentionally rather than accidentally, but as not requiring the Crown to show that Mr. Lepp had known that the post would violate his bail conditions or that he had subjectively perceived any such risk. Although the trial judge did not specifically refer to the Manitoba Court of Appeal’s decision in Custance, supra, he effectively adopted the Custance interpretation of the s. 145(3) mental element, under which:

… the Crown only needs to prove that the accused intentionally committed the act or omission, but does not need to show that the accused knew their conditions while committing that act or omission.[^7]

[30] As discussed above, Zora disapproves of this interpretation of the s. 145(3) offence and requires the Crown to prove a higher degree of subjective fault on the part of the accused. In Mr. Lepp’s case, Zora requires the Crown to prove that:

i) when he posted the offending blog entry he either knew or was wilfully blind to the existence of the bail term it contravened; and

ii) that he either:

a. knew or was wilfully blind to the fact that the blog post would in fact contravene this bail term; or

b. that he acted “recklessly”, in the sense that he subjectively perceived that there was “substantial and unjustified risk” that the blog post would “likely fail to comply with [his] bail conditions”, and went ahead and posted it anyway.

[31] The trial judge’s reasons do not address any of these factual issues.

[32] The Crown makes two alternative arguments as to why this omission by the trial judge is not a reversible error. First, the Crown submits that the trial judge did not “err” because his decision was “based on jurisprudence that was accepted” at the time of his judgment, even though this line of authority was later disapproved of by the Supreme Court of Canada in Zora.

[33] This argument misapprehends the nature of appellate review when a judgment rendered after a defendant’s trial clarifies or changes the law. In R. v. Wigman, 1985 CanLII 1 (SCC), [1987] 1 S.C.R. 246, the Supreme Court of Canada held that in this situation a defendant whose case is still “in the system” can claim the benefit of the later decision, noting at para. 30:

This rationale is grounded in the principle that an accused should not be convicted on the basis of the interpretation of a statute which, at the appropriate time, is known to be wrong.

[34] Mr. Lepp falls squarely within the Wigman rule. Accordingly, it is not my task on appeal to decide whether the trial judge’s approach to mens rea was defensible or even correct at the time he made his decision.[^8] Instead, I must consider whether his legal analysis can be squared with what the Supreme Court of Canada has now held to be the correct interpretation of the mental element of the s. 145(3) offence.

[35] In the alternative, the Crown argues that the trial judge was not obliged to address what Zora has now established to be the essential mental elements of the s. 145(3) offence because “mens rea wasn’t a live issue” in this case, based on how Mr. Lepp conducted his defence. Specifically, Crown counsel took me to three transcript passages in which he submits Mr. Lepp was effectively conceding the issue of mens rea.

[36] I find this argument entirely untenable, for multiple reasons. First, the question of whether the trial judge erred in his mens rea analysis turns on his actual reasoning process, not on the approach that he might have taken if he had understood the law differently. His reasons indicate that he thought that to establish mens rea the Crown only had to prove that Mr. Lepp had posted the blog entry intentionally. He did not say that there were other mental elements that the Crown would ordinarily have to prove, but which he was not addressing because he thought Mr. Lepp was conceding these elements. In my view, the trial judge’s reasons must be taken at face value as reflecting his actual thought process.

[37] Second, if the trial judge had actually concluded that Mr. Lepp was conceding some of the essential mental elements of the s. 145(3) offence, it would have been an error for him to say nothing about this in his reasons. Trial judges must explain their reasoning with sufficient clarity to “tell the parties affected by the decision why the decision was made” and to “permit effective appellate review”: R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51 at para. 11. They cannot skip over essential elements of a charged offence based on tacit and entirely unexplained findings that these elements have been conceded by the defence. To be clear, I do not think the trial judge actually made this error here. Rather, I read his reasons as not addressing what Zora now establishes to be the essential mental elements of the s. 145(3) offence simply because he interpreted the elements of the offence differently.

[38] Third, the three transcript passages the Crown cites in support of its claim that Mr. Lepp was “conceding the recognizance” and that “the issue [was] really the actus reus, not the mens rea” in my view actually show precisely the opposite. The first passage on which the Crown relies is a comment by Mr. Lepp to the trial judge that:

The essential elements require that … it is proven that there was a recognizance, that there was … an act that was willful.

The second passage is to the same effect: Mr. Lepp suggested to one of the Crown’s police witnesses:

Detective Loughry, you have to prove to the court that … I wilfully breached [the] recognizance.

In his final submissions at the end of the trial, Mr. Lepp reiterated his argument that the Crown had to prove that his alleged breach was “wilful”.

[39] While the Crown correctly observes that in these passages Mr. Lepp was “addressing the mens rea issue”, I do not think that they reasonably support the Crown’s further claim that Mr. Lepp was acknowledging “that he understood the terms of the recognizance”. The inference that Mr. Lepp would in March 2019 still have remembered the bail terms he entered into seven months earlier may well have been available on the record as a whole. However, I do not see how Mr. Lepp’s repeated comments that the Crown had to prove his breach was wilful can be read as an affirmative concession by him that he remembered the terms of his bail at the time of the blog post.

[40] In any case, Mr. Lepp was plainly not conceding what Zora now recognizes as the second essential mental element of the s. 145(2) offence: namely, the requirement that the Crown prove that Mr. Lepp, at a minimum, subjectively perceived a “substantial and unjustified risk” that his blog post would in fact breach his bail conditions. To the contrary, Mr. Lepp’s repeated insistence that the Crown prove that his breach was “wilful” can in my view be most readily understood as an assertion, albeit framed imperfectly in legal terms,[^9] that he was disputing that the Crown had proved the necessary degree of subjective fault.

[41] Indeed, this is made even clearer by the third transcript passage on which the Crown relies, in which Mr. Lepp asked DC Loughry:

Did you consider that I had no idea whatsoever that I had breached that – the image I posted was so infinitesimally small that I couldn’t even read it?

He followed this by asking a further question:

So, you don’t know for sure that I didn’t create that blog on my iPhone, as I do most of my work?

In the context of this case, where it had been established that the offending names in the blog post photograph only became legible when the photograph was viewed on a relatively large computer screen, Mr. Lepp was evidently staking out the position that the Crown had not proved that he knew or suspected that posting the photo would result in the prohibited names to be “mentioned” on his blog because he it did not occur to him that the text in the photo would be readable. Under Zora, the Crown was obliged to prove, at a minimum, that Mr. Lepp had subjectively perceived a “substantial and unjustified risk” that the names on the documents in the photo would be readable. I do not see how the questions Mr. Lepp put to the officer can possibly be understood as him conceding this point. Instead, he seems to have be doing precisely the opposite, and expressly indicating that he was disputing this very issue.

[42] In summary, I am satisfied that the trial judge’s reasons mean what they say, and that he believed that the Crown could establish the mens rea of the s. 145(3) offence by proving that Mr. Lepp had posted the blog entry intentionally rather than by accident. By taking this approach he erred in law, having regards to the now binding authority of Zora, supra. I do not accept the Crown’s argument that the trial judge tacitly considered all of the Zora mental elements of the s. 145(3) offence, but chose not to mention them in his reasons because he thought Mr. Lepp was conceding them. This is simply not a plausible reading of his reasons, nor do I think it would have been open to him to take this approach, in part because the record does not actually show Mr. Lepp making any such concessions. Indeed, it shows that he did precisely the opposite.

3. Can Mr. Lepp’s conviction be upheld by applying the curative proviso?

[43] The “curative proviso” in s. 686(1)(b)(iii) of the Criminal Code, which applies to summary conviction appeals through the operation of s. 822, allows a court to dismiss an appeal on the grounds that there “was ‘no substantial wrong or miscarriage of justice’ despite an error of law”: Zora, supra at para. 124. The burden is “appropriately placed on the Crown to satisfy the reviewing court that despite the error no substantial wrong or miscarriage of justice has occurred”: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 23.

[44] In R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272 at para. 53, Moldaver J. explained:

… that there are two situations where the use of s. 686(1)(b)(iii) is appropriate:

(1) where the error is harmless or trivial; or (2) where the evidence is so overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict.[^10]

[45] In this case, the trial judge’s failure to properly consider all of the mental elements of the s. 145(3) offence cannot be dismissed as “harmless or trivial”. As Martin J. explained in Zora, supra at para. 124:

Mens rea is an essential element of a criminal offence and identifying the wrong fault standard is not a “harmless or trivial” error. A subjective mens rea would have required the trial judge to consider Mr. Zora’s state of mind, which clearly could have had an impact on the verdict.

In my view, the same can be said in Mr. Lepp’s case. Indeed, as McLachlin C.J.C. noted in R. v. Khawaja, 2012 SCC 69, [2012] 3 SCR 555 at para. 93:

Generally speaking, if an appellate court finds that the offence for which an appellant was convicted includes an additional essential element, fairness would require ordering a new or directed trial.

[46] I am also not satisfied that the evidence of mens rea in this case was so overwhelming that the trial judge would have “inevitably convict[ed]” Mr. Lepp even if he had properly considered the two essential mental elements of the s. 145(3) offence now established by Zora. With respect to the first element, I accept that it was an available inference in this case that in March 2019 Mr. Lepp had not forgotten that he was still bound by the bail term imposed in September 2018 that barred him from “mentioning” the complainants’ names “in any on-line media”. However, I do not think the evidence supporting this inference was so overwhelming that the trial judge would have inevitably found that this element of mens rea had been proved on the criminal standard if he had properly turned his mind to the issue.

[47] In any event, the evidence supporting the second essential element of mens rea in this case was even weaker. Although the text in the document shown in the posted photograph became readable when the blog entry was displayed on a laptop computer screen, it is completely illegible in the letter-size printout of the blog post that was filed as an exhibit, and would presumably have been equally unreadable to someone viewing the blog on the even smaller screen of a smartphone. Smartphones are now ubiquitous, and in the absence of any evidence that Mr. Lepp ever viewed the photograph on a large-screen device I do not think that the trial judge, if he had properly considered the issue, would inevitably have concluded that Mr. Lepp must necessarily have turned his mind to the risk that the text in the photograph would be visible to at least some of the people who visited his blog.

[48] Moreover, the trial might well have unfolded differently if the parties and the trial judge had both had the benefit of Zora. If Mr. Lepp had clearly understood that the Crown had to prove that he had subjectively adverted to the risk that the photograph in the blog post could be blown up to reveal the names in the style of cause, it is at least reasonably possible that he might have conducted his defence differently. For instance, he might have taken the witness stand and given evidence that he had created the blog post on his iPhone and not thought of the possibility that the text in the photo might be visible on a larger screen, instead than merely raising this possibility in his cross-examination of DC Loughry. As it was, however, the trial judge had expressly told Mr. Lepp when the trial began that the Crown only had to prove that he had made the blog post “intentionally”. In my view, it is impossible to know in hindsight how this well-meaning but misleading advice may have affected the conduct of Mr. Lepp’s defence. This further satisfies me that the Crown has not met its burden of demonstrating that the trial judge’s legal error did not give rise to a “substantial wrong or miscarriage of justice”: see Khajawa, supra at para. 90-91.

C. Conclusions

[49] For these reasons, I am satisfied that Mr. Lepp’s December 4, 2019 conviction for the s. 145(3) offence cannot stand. I am also satisfied that the appropriate remedy for the legal error I have identified is to order a new trial. This makes it unnecessary for me to consider the other grounds of appeal Mr. Lepp raises that would, if successful, also lead to a new trial order. However, I must address one particular ground Mr. Lepp raised in his factum, since success on this ground would lead to a judicial stay of proceedings being entered rather than a new trial being ordered.

[50] At the outset of his trial Mr. Lepp brought an unsuccessful abuse of process application. On appeal, he states that different charges he faced in the Superior Court of Justice had been stayed “because of the same abuse motion”, and submits that as a matter of consistency the trial judge in the case at bar was required to reach the same result.

[51] However, the key premise of Mr. Lepp’s argument is incorrect: the record shows that the indictable charges against him in the Superior Court were not judicially stayed for abuse of process, but were instead stayed by the Crown under s. 579 of the Criminal Code. It is well-settled law that “a stay of the charges by the Crown prior to a plea being entered is not a final determination for the purpose of … res judicata”: R. v. T.G., 2017 ONSC 3213 at para. 33.[^11] Accordingly, the Crown’s stay of these charges was not a judicial determination in Mr. Lepp’s favour that bound the trial judge in the case at bar.

[52] I am also satisfied that the trial judge did not err by dismissing Mr. Lepp’s abuse of process application on its merits. He stated:

The fact is, having heard this, there is nothing I have heard that approaches the level of an abuse of process. The test for an abuse of process is very very high. It is an exceptional remedy and there is simply nothing I have heard, which is remotely near that test.

Having read the transcript of Mr. Lepp’s oral submissions at trial, I agree with the trial judge’s assessment and with his conclusion. Accordingly, I would not give effect to this ground of appeal.

[53] In the result, Mr. Lepp’s conviction appeal is allowed, his December 4, 2019 conviction for the s. 145(3) offence is quashed, and a new trial is ordered on this charge. This makes it unnecessary for me to consider or address Mr. Lepp’s sentence appeal, since the probation order imposed by the trial judge falls away once the underlying conviction is quashed. It will be up to the Crown to decide if in the circumstances proceeding with a new trial is in the public interest.

III. The second appeal (December 9, 2019 breach probation conviction)

[54] Mr. Lepp’s second appeal is against his December 9, 2019 conviction for breaching his probation order, to which he pleaded guilty. To the extent that I understand his arguments, which are not always easy to follow, he appears to be challenging the validity of this conviction on two different bases.

A. The validity of the relevant term of the probation order

[55] Some background context is necessary to understand Mr. Lepp’s first line of attack, in which he challenges the validity of the term of the December 4, 2019 probation order that he was convicted of breaching. Mr. Lepp was specifically charged with breaching a term stating that he was:

Not to mention, that is speak, write, email, post or mention in any other manner or by any method on social media, online media, video, printed blog, online blog, or otherwise mention in any other manner or by any method Helen CLARKE, Jaclyn SOLOMON, Mandie EDDIE or the Time for Paws dog walking business in any online media, Except in a court room or on court documents in a courtroom or through a member of the Law Society for purposes of matters before the court.

The language of this term is identical to a term of the bail order that Mr. Lepp was under at the time the probation order was made. The specific factual allegation that led to his December 9, 2019 guilty plea and conviction was that he had breached this term by posting on his blog a copy of a letter from civil counsel that included the name of Mandie Eddie, but not any of the other listed names.

[56] As of December 4, 2019, Mr. Lepp was no longer facing any pending criminal charges that related directly to Ms. Eddie. A charge of defamatory libel in which she was the complainant had been stayed by the Crown on November 13, 2019, and although on December 4, 2019 Mr. Lepp still faced three charges of breaching the term of his bail that prohibited him from “mentioning” the names of the three listed persons “in any online media”, these charges were all based on allegations that Mr. Lepp had “mentioned” Ms. Clarke’s name in particular, rather than any of the other listed names.[^12]

[57] Mr. Lepp maintains that Ms. Eddie’s name should have been removed from his bail terms once the last criminal charge relating to her had been stayed. He states further that Fuerst R.S.J. had directed the Crown to make this amendment on November 13, 2019, but that the Crown had failed to do so.

[58] Mr. Lepp’s first argument on appeal, as I understand it, is that if the Crown had amended his bail terms before Rose J. made the probation order on December 4, 2019, Rose J. would not have included Ms. Eddie’s name in the relevant term of the probation order, since it appears to have been copied directly from the bail order that was in force at the time. If Ms. Eddie’s name had not been included in the probation order term, Mr. Lepp would not have been in breach of this term when he posted the letter that included her name on December 5, 2019.

[59] To the extent that Mr. Lepp is arguing that this somehow undermines the validity of his December 9, 2019 conviction for breaching the probation order term that did include her name, the argument fails for multiple reasons, some factual or evidential, and some legal.

[60] First, there is nothing in the record before me to support Mr. Lepp’s contention that Fuerst R.S.J. ever ordered the Crown to take steps to vary his bail to remove Ms. Eddie’s name. To the contrary, her November 13, 2019 endorsement simply states:

At the request of the Crown, all counts on this Indictment are stayed.

Mr. Lepp places great reliance on my own bail review decision on December 11, 2019, two days after his guilty plea, to remove Ms. Eddie and Ms. Solomon’s names from his bail recognizance. I did so in part because at that point no charges involving them as complainants were still before the courts. However, the situation was different on November 13, 2019, since at that time Mr. Lepp was still facing the two charges of breaching his bail order that were ultimately tried before Rose J., both of which involved allegations that he breached his bail by “mentioning” Ms. Eddie’s name online. Moreover, my decision that naming Ms. Eddie in the bail order was no longer “necessary for the protection or safety of the public” was in part based on the fact that as of December 11, 2019 Mr. Lepp was already barred from “mentioning” her name by the terms of Rose J.’s December 4, 2019 probation order.

[61] Second, the underlying premise of Mr. Lepp’s argument – that Rose J. would not have named Ms. Eddie in the probation order if her name had already been removed from the identically-worded bail term – appears to me to be unsound. The bail breach charge on which Rose J. sentenced Mr. Lepp was based on his having “mentioned” all three of the listed persons in his blog post, and the Crown had presented victim impact statements from all three, including Ms. Eddie. In his reasons for sentence, Rose J. expressly concluded that Mr. Lepp had used his blog to engage in “a form of on-line bullying”, and stated that in his view “Ms. Clarke, Ms. Eddie and Ms. Solomon are all entitled to protection”. Accordingly, I think it is very likely that Rose J. would have included Ms. Eddie’s name in the probation order even if it had at that point been removed from the similarly worded bail term. Probation orders, unlike bail orders, can properly include terms that are “imposed to change an accused person’s behaviour or to punish an accused person”.[^13]

[62] Third, even if the underlying factual premises of Mr. Lepp’s argument were entirely correct, his argument would still fail as a matter of law. Whether or not the December 4, 2019 probation order should have included Ms. Eddie’s name, the order that was made did include her name. Unless and until this order was varied or set aside by a court, it was binding on Mr. Lepp. Moreover, he was precluded by the “collateral attack rule” from challenging the validity of the probation order as a defence to a charge that he had breached one of its terms. As Iacobucci J. explained in R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333 at p. 348:

This rule holds that “a court order, made by a court having jurisdiction to make it,” may not be attacked "in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment" (Wilson v. The Queen, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594, per McIntyre J., at p. 599). The lack of jurisdiction which would oust the rule against collateral attack would be a lack of capacity in the court to make the type of order in question, such as a provincial court without the power to issue injunctions. However, where a judge, sitting as a member of a court having the capacity to make the relevant type of order, erroneously exercises that jurisdiction, the rule against collateral attack applies.

[63] There is no dispute that Rose J., having found Mr. Lepp guilty of a charge on which the Crown had elected to proceed summarily, had jurisdiction to sentence him to a period of probation. Accordingly, even if Rose J. was wrong to frame the probation order in the terms that he did, the order was still valid and binding on Mr. Lepp on December 5, 2019, when he acknowledged breaching the order by posting an image of the letter that included Ms. Eddie’s name on his blog.

[64] Mr. Lepp also notes that in June 2020 I made a further variation to his bail and struck out the similarly worded term in his bail order for multiple reasons, one of which was that I found the language of this term to be unduly vague: see R. v. Lepp, 2020 ONSC 3435. However, the rule against collateral attack bars Mr. Lepp from challenging the term of his probation order on vagueness grounds as a defence to a breach charge: see R. v. Lee, 1999 CanLII 2341(Ont. C.A.). Moreover, it should be noted that the specific vagueness concern I raised in my June 2020 judgment (at para. 38) was that it was:

… far from clear whether the term is meant to only restrict Mr. Lepp’s ability to “mention” the named persons and the business online, or whether the restriction is meant to apply more broadly to all uses of these names by him out of court or outside of court documents.

The specific breach to which Mr. Lepp pleaded guilty on December 9, 2019 involved him posting a document with Ms. Eddie’s name online, which was plainly prohibited by the probation order no matter how broadly or narrowly the problematic term is interpreted.

B. The validity of Mr. Lepp’s guilty plea

[65] Mr. Lepp’s second line of attack is to challenge the validity of his December 9, 2019 guilty plea before Henschell J.

[66] In R. v. T. (R.), 1992 CanLII 2834 (Ont. C.A.), Doherty J.A. explained (at paras. 12-14, citations omitted):

Where the validity of a guilty plea is raised for the first time on appeal, the appellant has the onus of showing that the plea was invalid. The appellate court will examine the trial record and any additional material proffered by the parties which, in the interests of justice, should be considered in assessing the validity of the plea. In this case, both parties had submitted material which, in my view, should be received and considered in assessing the validity of the pleas.

A guilty plea is a formal admission of guilt. It also constitutes a waiver of both the accused's right to require the Crown to prove its case beyond a reasonable doubt and the related procedural safeguards, some of which are constitutionally protected: …

To constitute a valid guilty plea, the plea must be voluntary and unequivocal. The plea must also be informed, that is the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea …

He noted further that “a guilty plea entered in open court will be presumed to be voluntary unless the contrary is shown” (at para. 16).

[67] In this case, Mr. Lepp argues that his plea was both involuntary and not fully informed. However, he made no attempt to present any fresh evidence on appeal to support these assertions. As the British Columbia Court of Appeal noted in R. v. Wiebe, 2012 BCCA 519 at para. 22:

When an appellant seeks to set aside a guilty plea on the basis the plea was invalid and thus a miscarriage of justice under s. 686(1)(b)(iii) of the Criminal Code, it is axiomatic that if the proof of invalidity is not apparent on the record, the appellant must establish the invalidity by placing evidence before the court. This Court has traditionally required the appellant to file his or her own affidavit and any other affidavit that might be relevant to the issue.

[68] In this case, Mr. Lepp did not file any affidavits. He nevertheless made extensive oral submissions at the appeal hearing about the factual circumstances that led him to plead guilty, and about his own thoughts and motivations at the time. Although I permitted Mr. Lepp to speak, I emphasized at the time that these submissions had no evidential value and were thus of no assistance to me.

[69] Insisting that fresh evidence be tendered in affidavit form is not a mere formality, but serves two important purposes. First, it gives the opposing party advance notice of the new evidence and a fair opportunity to prepare a response. Second, it gives the opposing party the chance to test the new evidence by cross-examination.

[70] In this case, where there has been no cross-examination, I would not be able to properly assess or weigh the new information Mr. Lepp tried to convey to me during his submissions. I must accordingly entirely disregard Mr. Lepp’s attempts to give evidence in the form of submissions and decide this ground of appeal based on the record that is properly before me.

[71] The transcript of the guilty plea and sentencing proceedings shows that during the hearing Crown counsel told the court that Mr. Lepp had made a blog post that included:

… a letter sent to Mr. Lepp from a lawyer representing multiple parties in civil litigation. Within that letter was explicitly the name Mandie Eddie. And, as part of this plea, Mr. Lepp is admitting that he wilfully posted that letter, knowing that in doing so he was breaching the probation he was placed on the day prior …

Mr. Lepp’s counsel proceeded to agree that these allegations were admitted, with the exception that the letter had actually been addressed to Mr. Lepp’s wife. He then added:

[H]e understands that by putting it up, whether he thought it was objectionable or not, that it was a direct violation of is probation. Correct?

Mr. Lepp then responded: “Correct”.

[72] In my view, Mr. Lepp’s admission of guilt to Henschell J. was unequivocal. Although Mr. Lepp has now begun equivocating, suggesting in his submissions to me that he had not actually known when he posted the letter on his blog that it contained Ms. Eddie’s name, his submissions on appeal are not evidence. Based on the record that was before Henschell J., Mr. Lepp’s admission of guilt was unambiguous and unequivocal.

[73] Mr. Lepp focused his submissions on appeal primarily on his claim that his guilty plea was involuntary because he was suffering from serious health problems at the time of his plea that made him especially anxious to be released from custody.

[74] In this regard, the evidential record supports Mr. Lepp’s position to some extent. It is undisputed that at the time of his guilty plea Mr. Lepp was 70 years old, and that he entered his plea on a Monday after having been arrested on Friday and spending the weekend in custody. The transcript also reveals that he was brought to court in a wheelchair and was unable to stand during the plea and sentencing proceedings. During his sentencing submissions Crown counsel acknowledged that “there are some legitimate health problems that Mr. Lepp is facing and faced in custody”, and Mr. Lepp’s own counsel then expanded on this by stating:

[H]is time in custody has been very unpleasant. He’s had incredibly high blood pressure. He’s had heart surgeries. He’s been handcuffed and placed in a detention facility. It’s been very difficult for him.

In her reasons for accepting the joint submission on sentence, Henschell J. observed:

I have no doubt, because of your medical situation that your time in custody must have been a difficult time for you.

[75] However, it is not enough for Mr. Lepp to show that he was suffering from health problems that gave him a strong incentive to want to obtain his immediate release. Rather, as Doherty J.A. noted in T.(R.), supra at para. 18, Mr. Lepp must establish that his “emotions reached a level where they impaired [his] ability to make a conscious volitional choice.” To the same effect, in Andreadis et al. v. Pinto et al., 2009 CanLII 50220 (Ont. S.C.), Brown J. (as he then was) noted (at para. 22):

A voluntary plea refers to the conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate.

[76] I am not satisfied on the record before me that Mr. Lepp was under such severe emotional distress on the day of his plea that he was left incapable of making a “conscious volitional choice” between his options. While he may in hindsight regret his decision to plead guilty in order to get out of custody, that is not enough to justify setting his guilty plea aside on appeal.

[77] Mr. Lepp also argues that his guilty plea was not fully informed because he was unaware that a conviction would interfere with his ability to travel with his wife to the United States for vacations.

[78] While the existence of unanticipated “collateral consequences” can sometimes affect the validity of a guilty plea, it is Mr. Lepp’s burden to show that his plea and resulting conviction has actually resulted in some collateral consequence that is of real importance to him. In their majority reasons in R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, Moldaver, Gascon and Brown J.J. explained (at para. 4):

[F]or a plea to be informed, an accused must be aware of the criminal consequences of the plea as well as the legally relevant collateral consequences. A legally relevant collateral consequence is one which bears on sufficiently serious legal interests of the accused.

[79] In this case, Mr. Lepp has not shown that his guilty plea has in fact triggered any “legally relevant collateral consequences”: he has not presented any evidence that having a conviction for this particular offence on his record will actually affect his ability to enter the United States.

[80] Mr. Lepp has also failed to meet the second requirement of Wong: namely, the requirement that he demonstrate “subjective prejudice”. As the Wong majority judges explained (at para. 6):

In our view, the accused should be required to establish subjective prejudice. Meaning, accused persons who seek to withdraw their guilty plea on the basis that they were unaware of legally relevant consequences at the time of the plea must file an affidavit establishing a reasonable possibility that they would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions. To assess the veracity of that claim, courts can look to objective, contemporaneous evidence. The inquiry is therefore subjective to the accused, but allows for an objective assessment of the credibility of the accused’s subjective claim.

In this case, Mr. Lepp has not provided an affidavit. As a result, there is no evidence that the prospect of being unable to travel to the U.S. would have mattered to him at the time he entered his plea, nor that there is any reasonable possibility that he would have made a different decision if he had known about this supposed collateral consequence at the time.

[81] Mr. Lepp’s argument that his guilty plea was not fully informed accordingly founders for lack of evidence at both stages of the inquiry: he has not shown that the resulting conviction will actually affect his ability to travel to the United States, nor has he provided any evidence that he would have acted any differently if he had known that this was the case.

[82] In summary, Mr. Lepp has failed to demonstrate that there is any reason to think that his guilty plea was anything other than unequivocal, voluntary and adequately informed. There is accordingly no basis for me to interfere with Henschell J.’s decision to accept Mr. Lepp’s plea and find him guilty.

C. Conclusions

[83] I would accordingly not give effect to any of Mr. Lepp’s grounds of appeal against his December 9, 2019 conviction for breaching his probation order, and would dismiss this appeal.

IV. Disposition

[84] In the result, Mr. Lepp’s first appeal (CR-19-02717-00AP) is allowed, the conviction for breaching a term of his bail recognizance contrary to s. 145(3) of the Criminal Code entered on December 4, 2019 is quashed, and a new trial is ordered on that charge.

[85] His second appeal (CR-19-10726-00AP) against his conviction for breaching a term of his probation order contrary to s. 733.1(1) of the Criminal Code, entered on December 9, 2019, is dismissed.

Released: October 6, 2020 The Honourable J. Dawe

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ROBERT LEPP

REASONS FOR JUDGMENT

The Honourable J. Dawe

Released: October 6, 2020

[^1]: Section 145 of the Criminal Code was repealed and re-enacted in modified terms by Bill C-75, which received Royal Assent on June 21, 2019. The offence of breaching a term of a bail order is now found in s. 145(4).

[^2]: See Eddie v. Lepp, 2019 ONSC 6946.

[^3]: Aurora’s application to have Mr. Lepp declared a vexatious litigant was ultimately dismissed in October 2019, although Edwards J. did strike a number of paragraphs of Mr. Lepp’s Statement of Claim without leave to amend: see The Corporation of the Town of Aurora v. Lepp, 2019 ONSC 6041; aff’d 2020 ONCA 528.

[^4]: Mr. Lepp’s appeal was originally scheduled to be heard on June 26, 2020, but the hearing was postponed because of the shutdown of the courts due to the COVID-19 public health crisis.

[^5]: Zora, supra at para. 31.

[^6]: Zora, supra at para. 111 (emphasis added). Martin J. noted that this interpretation had been adopted by courts in Quebec, Nova Scotia and Newfoundland and Labrador: R. v. Edgar, 2019 QCCQ 1328 at para. 109; R. v. Al Khatib, 2014 NSPC 62, 350 N.S.R. (2d) 133 at para. 27; R. v. Companion, 2019 CanLII 119787 at para. 48 (N.L. Prov. Ct.); R. v. L.T.W., 2004 CanLII 2897 at para. 22 (N.L. Prov. Ct.).

[^7]: Zora, supra at para. 111.

[^8]: Indeed, if Mr. Lepp had been tried in Manitoba the trial judge would have been required by stare decisis to follow the Manitoba Court of Appeal’s decision in Custance, which would have been binding on him. However, Mr. Lepp would still have been entitled to argue on appeal that the trial judge “erred” in light of the Supreme Court of Canada’s subsequent decision in Zora. It should be noted that in R. v. Smith, 2008 ONCA 101, the Ontario Court of Appeal had implicitly interpreted s. 145(3) in a manner contrary to the Manitoba Court of Appeal’s interpretation in Custance. However, Smith was a brief endorsement in which the interpretive issue was not squarely raised, and several other Ontario judges had cited Custance for the proposition that the Crown only had to prove that the accused had “the intention to commit the acts which constitute the actus reus of the offence”, without referring to Smith: see, e.g., R. v. Feliciano, 2019 ONCJ 263 at para. 40; R. v. Ellis, 2016 ONCJ 168 at para. 34.

[^9]: As Martin J. noted in Zora at para. 117 the s. 145(3) offence does not require the breach to be “wilful”, and thereby allows the Crown to establish subjective mens rea by proving recklessness rather than actual knowledge or wilful blindness. However, as she explained, recklessness is a subjective fault standard, in that it requires the Crown to prove that the accused “subjectively saw the risk and continued to act with disregard to the risk”.

[^10]: See also R. v. Khan, supra, at paras. 28-31.

[^11]: See also R. v. Spence (1919), 1919 CanLII 582, 31 C.C.C. 365 (Ont. C.A.); R. v. Tateham (1982), 1982 CanLII 371, 70 C.C.C. (2d) 565 (B.C.C.A.), R. v. Burrows, (1983) 1983 CanLII 3123, 6 C.C.C. (3d) 54 (Man. C.A.).

[^12]: These charges were being tried separately in the Ontario Court of Justice before Harpur J., who gave his decision finding Mr. Lepp guilty on two of these counts and not guilty on the third count on December 6, 2019: see R. v. Lepp, unreported, December 6, 2019.

[^13]: See R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509 at para. 67(j).