Her Majesty the Queen v. Robert Lepp
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
ROBERT LEPP Appellant
Counsel: Brian McCallion, for the Crown / Respondent Self-represented
HEARD: March 5, 2021
REASONS FOR DECISION
On appeal from the decision of The Hon. Mr. Justice Harpur Dated December 6, 2019 and July 17, 2020
Justice V. Christie
Overview
1On June 12, 2019, the Appellant, Mr. Lepp, was arraigned on two Informations before the Court, specifically:
First Information – 18-04971 – Crown elected to proceed summarily on August 7, 2018
a. Between December 1, 2016 and May 11, 2018 – criminal harassment of Helen Clarke, contrary to s. 264(3) of the Criminal Code;
b. Between December 1, 2016 and May 11, 2018 – repeated communication with Helen Clarke, without lawful excuse and with intent to harass, through telecommunication, contrary to s. 372(4) of the Criminal Code;
Second Information – 19-01431 – Crown elected to proceed summarily on February 25, 2019
c. August 23, 2018 – fail to comply with condition of recognizance, specifically that he not mention Helen Clarke, Jaclyn Solomon, Mandie Eddie, or the Time4Paws dog walking business in any online media – contrary to s. 145(3) of the Criminal Code;
d. August 25, 2018 – fail to comply with condition of recognizance, specifically that he not mention Helen Clarke, Jaclyn Solomon, Mandie Eddie, or the Time4Paws dog walking business in any online media – contrary to s. 145(3) of the Criminal Code;
e. August 29, 2018 – fail to comply with condition of recognizance, specifically that he not mention Helen Clarke, Jaclyn Solomon, Mandie Eddie, or the Time4Paws dog walking business in any online media – contrary to s. 145(3) of the Criminal Code;
f. August 30, 2018 – fail to comply with condition of recognizance, specifically that he not mention Helen Clarke, Jaclyn Solomon, Mandie Eddie, or the Time4Paws dog walking business in any online media – contrary to s. 145(3) of the Criminal Code;
g. May 14, 2018 – wilfully attempted to dissuade Helen Clarke, by threats, from giving evidence in a judicial proceeding – contrary to s. 139(2) of the Criminal Code;
h. Between July 5, 2018 and August 22, 2018 – repeated communication with Jaclyn Solomon, without lawful excuse and with intent to harass, through telecommunication – contrary to s. 372(4) of the Criminal Code.
2Mr. Lepp pleaded not guilty to all charges. The trial proceeded over several days and several witnesses.
3On October 15, 2019, at the close of the evidence, but prior to submissions, the Crown invited the Court to dismiss the count in relation to an alleged breach on August 23, 2018. This count was, therefore, dismissed. (Transcript of October 15, 2019, page 164)
4On October 17, 2019, at the end of submissions, Justice Harpur reserved judgment.
5On October 23, 2019, Justice Harpur sent an email to Mr. Lepp and the Crown as follows:
I note that Mr. Lepp was arraigned on June 12, 2019 on charges including obstruct justice under s. 139(2) C.C. and that, for that charge and all others, Mr. Elder stated that the Crown’s election was summary.
In reviewing s. 139(2) C.C. now, I have become concerned that, until June 21, 2019 when certain Criminal Code amendments came into effect, that offence was indictable only; that is, the Crown had no election by which it could proceed in provincial court but Mr. Lepp did have an election whether to be tried by a provincial court judge or by a Superior Court judge sitting with or without a jury.
This is an issue which I should address with you in court as soon as possible. I am scheduled to sit in Bradford court on Wednesday, October 30, 2019 beginning at 9:00 a.m. If both of you could make yourselves available in Bradford at that time, this issue could be addressed there. I expect we would not require more than 30 minutes. As I am now a per diem judge, finding courtroom availability in Newmarket in the immediate future may be challenging.
I would encourage Mr. Lepp to take legal advice concerning the issue in advance of October 30th.
Please advise my assistant, Nicole Anderson, of your availability.
(Appeal Book, page 40)
6This Indictable offence was ultimately stayed at the request of the Crown.
7On December 6, 2019, Justice Harpur released his decision in writing. In summary, he found Mr. Lepp not guilty with respect to several counts, including:
a. criminal harassment of Helen Clarke (count 1 in information 18-04971)
b. repeated telecommunication with Jaclyn Solomon without lawful excuse and intent to harass (count 7 in information 19-01431)
c. breach of recognizance on or about August 25, 2018 (count 2 in information 19-01431)
Mr. Lepp was found guilty of the following charges:
d. repeated telecommunication with Helen Clarke without lawful excuse and with intent to harass (count 2 in information 18-04971)
e. breach of recognizance on or about August 29, 2018 (count 4 in information 19-01431)
f. breach of recognizance on or about August 30, 2018 (count 5 in information 19-01431)
8Subsequent to the conviction, Mr. Lepp brought an application to stay the proceedings, arguing that his right to trial within a reasonable time had been infringed. This application was dismissed.
9As for sentence, the Crown requested a global thirty-day custodial sentence, probation for two years and a DNA order, the last with respect to the breach offences, for which it was available but not mandatory. Mr. Lepp took the position that he had not offended and indicated that he was appealing the convictions, however, submitted that a fit sentence would be an absolute discharge.
10On July 17, 2020, Justice Harpur sentenced Mr. Lepp as follows:
a. For harassing telecommunication – 60 day conditional sentence, probation for 24 months
b. August 29, 2018 breach – suspended sentence (2 days of enhanced presentence custody noted), probation for 24 months
c. August 30, 2018 breach – suspended sentence (3 days of enhanced presentence custody noted), probation for 24 months
The Court declined to make a DNA order.
Requested Relief and Grounds of Appeal
11Mr. Lepp appeals from both conviction and sentence and requests the following relief:
a. Reversal of the guilty verdict;
b. Absolute discharge or dismissal of all charges; and
c. Financial compensation
This court notes that, in the Appeal Book (page 25), there was also a notice of appeal relating to proceedings that took place before Justice Rose resulting in a conviction for breach of recognizance. This court has not been provided with any transcripts or arguments in relation to such a conviction. In fact, the Appellant referred to several other proceedings that are not relevant to this court’s determination. This summary conviction appeal deals only with the conviction and sentence imposed by Justice Harpur on December 6, 2019 and July 17, 2020.
12Focusing only on the proceedings that took place before Justice Harpur, Mr. Lepp alleged a number of errors as part of this summary conviction appeal, specifically that:
a. He was arraigned under s. 372(4) when it should have been s. 372(3); in other words, Mr. Lepp was arraigned under the “punishment” section for this offence;
b. The facts do not support the required elements of s. 372(4). Specifically, none of the emails referred to were meant only to harass, rather each had a legal purpose, including those to police, Aurora Bylaws, Town Council, and the Time 4 Paws owner;
c. The harassing communication charge was laid outside of the six-month limitation period. Mr. Lepp took the position that there was no such communication in May 2018, as the emails at that time had a lawful excuse and did not harass anyone. The previous email to this was on November 29, 2017, therefore, outside of the six month limitation given the date of the swearing of the information;
d. Mens rea was not proven with respect to the breach charges;
e. The trial judge failed to permit defence counsel for Mr. Lepp. Mr. Lepp alleged that defence counsel was denied for him due to an “oral claim” made by a witness (Solomon) suggesting a conflict of interest with his paralegal, Angela Rivet. According to the Appellant, Justice Kenkel ordered one s. 486 counsel be appointed to do cross-examination of three female witnesses, however, no s. 486 counsel appeared prepared for trial on June 11, 2018. Further, the Appellant submitted that Justice Kenkel ordered on May 2, 2019 that the Appellant’s paralegal, Angela Rivet, could also ask questions in addition to the assigned s. 486 counsel. The Appellant submitted that the Crown misled the trial judge as to Justice Kenkel’s order and, therefore, the trial judge refused to permit Ms. Rivet to fully participate.
f. The trial judge “misused an amicus curiae meant to ensure the Appellant was treated fairly”;
g. The trial judge “continued the trial despite first day failings of the Crown to provide s. 486 counsel” for the Appellant;
h. The trial judge decided early in the trial that the “contract” the complainant signed with the Town of Aurora did not explain why the emails were exchanged cordially between the complainant and the Appellant from summer 2016 through fall 2017. The Appellant submitted that the signed “contact” - PKS-011-15 - was, in the middle of the trial, ruled not a factor by Justice Harpur, leading to the conclusion that he pre-judged a critical issue;
i. The trial judge did not properly understand technology and therefore came to erroneous conclusions;
j. The trial judge accepted and used, verbatim, a “reasons for sentence” document from the Crown, without filling in appropriate blanks on his judgment;
k. The Appellant was arraigned on an Indictable charge, intermixed with Summary charges, and the court heard evidence on this Indictable charge. The error was not discovered until the end of testimony. The Appellant submitted that this biased Justice Harpur;
l. The Crown assigned illegal recognizance of bail terms throughout the period of the alleged acts;
m. The volume and frequency of related charges since May 30, 2018 should be indicative of malicious prosecution;
n. There were errors made by Justice Kenkel, the case management judge, including:
i. mixing 7 summary conviction offences with one indictable offence into one trial without a jury;
ii. refusing to order Crown pre-trial meetings to exchange evidence;
iii. making a decision to go to trial without seeing any evidence from the defence.
Brief Background Facts
13The relevant facts of the case can be briefly summarized for the purpose of this appeal as follows:
a. Mr. Lepp and Helen Clarke met in 2015 or 2016 when both attended “Canine Commons”, a leash-free dog park in Aurora;
b. Ms. Clarke ran a dog walking/dog boarding business at the time, “Time 4 Paws”, and used the park to walk the dogs in her care.
c. Ms. Clarke was also the lead volunteer of a number of people who had agreed to help maintain the park, and who had signed an Agreement with the Town on May 14, 2015. The Agreement was titled, “Community Partnership Program – Agreement No. PKS-011-15 – Aurora Leash Free Dog Park Agreement”. The term of the Agreement was for a period of five years, commencing on May 1, 2015. The Agreement also stated:
The Canine Commons Committee shall identify to the Town a spokesperson to be contacted in relation to this Agreement and the operation of the Park. The Canine Commons Committee shall also provide at least one alternative contact person to the Town and at all times keep update the Town on any changes to the names or contact information of any spokesperson or alternative contact. All communication to the Town regarding this Agreement shall be directed to Jim Tree, Parks Manager, and the Town agrees to provide the Canine Commons Committee with the name of an alternate contact should the need arise during the Term of this Agreement.
The terms and conditions on the use and maintenance of the park were set out in Schedule A to the Agreement. The Agreement was signed by eight Committee Members, including Helen Clarke.
d. In May 2016, Ms. Clarke was diagnosed with breast cancer. As a result of her treatment and recovery, her ability to carry on her responsibilities as a dog park volunteer was compromised, although she continued to participate.
e. With Ms. Clarke’s agreement, Mr. Lepp began communicating with Aurora, as well as with a Facebook group of park users whom Ms. Clarke had assembled.
f. On September 28, 2016, Mr. Lepp sent an email to Carole Wright, Administrative Assistant with the Town of Aurora, outlining seven concerns he had with the park, including loose paving stones at the park entry. This email was forwarded to Sara Tienkamp, Supervisor of Parks for response. Ms. Tienkamp responded to Mr Lepp by email on October 5, 2016 and, in respect of the loose paving stones, stated, “This was installed by the dog park volunteers at some point and we do not have the time to deal with it. Perhaps you can contact the volunteers on the committee.”
g. Mr. Lepp continued to communicate about the park with Aurora and Ms. Clarke into December 2016. For example, on December 1, 2016, Mr. Lepp emailed several individuals with the Town of Aurora, as well as Helen Clarke, setting out a list of concerns relating to the park, including sharp wires on gates, collapsing mesh, trip hazards, etc. Shortly after, Ms. Clarke sent an email to the same individuals supporting Mr. Lepp’s position.
h. On December 2, 2016, Ms. Clarke responded to an email from Jim Tree, Parks Manager, who indicated that they “have been receiving e-mails from a user of the park who seems to be having issues with the state of the park” and asked Ms. Clarke for “insight” she could provide. Ms. Clarke responded on the same day, copied Mr. Lepp and others, clarifying Mr. Lepp’s role. She stated in part:
…Bob is being our voice right now (all be it – very loud). I am being treated for breast cancer and he has been helping me out.
She then set out some of the issues with the park and then stated, “I have never really been concern about recognition but Bob has been going thru the contract as well as any other relevant information. And is hi-lighting issues….I am still (with additional help) looking after the day to day maintenance of the park. Bob is taken it upon himself to interface with the town during my recovery…
i. Later the same day, Ms. Clarke and Mr. Lepp communicated by email and agreed on a “good cop/bad cop” manner in which they would continue to seek Aurora’s support. They continued to approach Aurora in this manner until December 21, 2016.
j. On December 3, 2016, Mr. Lepp sent an email to Ms. Clarke which stated in part, “I’m beginning to feel a little stupid making posts nobody responds to. Should I stop now?...” A few minutes later, Mr. Lepp sent a further email, which stated in part, “Anyway if at any time I get oppressive just tell me to shut up”.
k. At some point in December 2016, Mr. Lepp created a Facebook post which Ms. Clarke took some issue with. In an email dated December 20, 2016, Mr. Lepp stated in part:
Teresa Latchford tells me this morning that she made contact with you. I hope you’re not too upset with me but I had been lobbying her to do an article about you. If it is stressing you at all please let me know and I can call her off…
l. In an email dated December 21, 2016, Ms. Clarke stated:
Thank you for everything that you have done. We have renewed the communication with the town and things are progressing. I actually asked that recognition be kept limited as I am not comfortable with publicity. I appreciate you not putting my name in further posts.
m. Also on the same day, Mr. Lepp sent an email to Doug Clarke, Ms. Clarke’s husband, asking his opinion on whether his wife would be offended if Mr. Lepp nominated her for recognition with the Town volunteerism award. Shortly after, on the same day, Doug Clarke, sent an email to Mr. Lepp, advising that “Helen does get stressed out by being mentioned in the Facebook posts and emails.” As for the nomination, he suggested that Mr. Lepp discuss this with her.
n. On December 24, 2016, Mr. Lepp sent an email to Ms. Clarke and her husband, which stated in part as follows:
I had to stop the good cop bad cop charade. It is affecting my family. My wife is scared of a lawsuit…
I told her you would be a witness to the whole “character flaw” thing. Would you testify to the bribery attempts if they were to sue?
As long as we have that on them they will do nothing.
People on your group accuse me of bullying and no one defends me at all anymore. I sent her details to check out with you…
Sorry I had to disrupt your day. I never mentioned your name but everyone knows “Volunteer” is you. Please be truthful to their questions.
o. On December 28, 2016, Mr. Lepp emailed Ms. Clarke about having observed “a man…putting sand down for the first time ever…”. He and Ms. Clarke then exchanged several emails about the park and Aurora, ending with an email from Ms. Clarke to Mr. Lepp at 9:48 pm, which stated, “If you believe this why don’t you arrange to meet with them to discuss. Continuing to write emails and posts won’t help the cause. Diplomacy is the way to go now. Everything is public record now. There is nothing left to be gained by sending further emails.”
p. On December 29, 2016 at 12:20 am, Mr. Lepp emailed Ms. Clarke, and stated in part:
Meet why? So they can lie some more?
There is too much to be told to stop putting pressure on them. The pressure makes them invent new reasons every day why they have not spent any money in 13 years. You know that’s true, please confirm you know they spent nothing in 13 years. That my big mouth got you your chips. No amount of your begging got you the chips….
The email is somewhat aggressive in nature.
q. At 9:17 am, on December 29, 2016, Ms. Clarke responded, “….that’s enough. You don’t know what’s going on. You are merely speculating and it’s not helping now.”
r. At 2:34 pm, Mr. Lepp responded in an email, again aggressively, stating in part as follows:
…Get something in writing from whoever you trust at the Town that they will cover you personally against all and any lawsuits for any reason if it happened on town property…
You say I’m not helping. I am not trying to help anyone but users of the park. I am not mentioning your name. I am not trying to get help for you. Excepting the advice about defending a lawsuit. Maybe you’ll get lucky and she doesn’t sue.
s. On December 30, 2016, Mr. Lepp sent an email to Doug Clarke requesting information about the park to assist with a timeline of facts he was preparing. He stated, “I am not sure if Helen will help….If you think int is something which will not upset her…otherwise just say no and I’ll keep digging online or ask town for help.”
t. Mr. Clarke responded on the same day, stating in part, “Helen never wanted to quit. I have nothing the dog park. I would like to tell you though your actions have added considerable stress to Helen at a time when she she is fighting cancer. I would like to respectfully ask you to stop contacting the both of us.”
u. On July 22, 2017, Mr. Lepp emailed all Aurora councillors and copied Ms. Clarke among others. The email was a seven page complaint concerning both Aurora’s inattention to his dog park concerns and Ms. Clarke’s use of the park for the purpose of her dog-walking business and her bringing into the park more dogs than she could “control”. The email states, “I copied our local press”.
v. On November 7, 2017, Mr. Lepp again emailed all Aurora councillors, copying Ms. Clarke, and complained about fencing which had been installed in the dog park. The email stated in part as follows:
I am copying Helen Clarke-Jennings, I promised her husband not to bother her. But I have to find out whether she approved the new fence and the entire design. If she approved this mess I will shut up. She can take the heat. Since Downey has pushed her around for 10 years he may be doing it now. She MAY be afraid to speak up, so please Councillors, one of you phone her and ask her what she thinks…
w. On November 29, 2017, Mr. Lepp emailed Ms. Clarke directly, copying all Aurora Councillors and others, reiterating his warning about Ms. Clarke’s financial jeopardy if a dog park user were hurt in the park. In the email, he stated in part:
I am aware you do not want to hear from me, BUT, the fact is you are in charge of the park volunteer committee.
x. Ms. Clarke responded in an email on the same day which stated in part:
If you have an issue with a town please follow the proper procedures in filling your complaints / comments.
Please remove me from your contact list and never text or contact me again. Stop following me and taking pictures of me. It is just down right creepy and disturbing.
y. Mr. Lepp responded with a three-page email later that same day, copying councillors and others, stating in part as follows:
…Block me if you wish. I can tell you how.
I can express my thoughts to you freely in emails. I am not harassing. I do nothing but send emails. NO mail, no visits, no meetings.
You chose to run the dog park, the only dog park I can use. You cannot just say “don’t bother me with complaints.” Well, you CAN say it but you cannot tell people not to complain about how our taxes are spent, that would be too easy for all municipal employees to state and not have to do any work all day.
All incidents are your problem as the Town gives you 100% responsibility for the park. I don’t agree with that decision, but that is what they did to you when you signed their one-sided contract. Because you have signed a legally binding contract you can personally be sued for malpractice, such as if someone gets bit. …
z. Ms. Clarke contacted the police following the last November 29, 2017 email. The police took no action at that time.
aa. On the evening of May 10, 2018, Mr. Lepp emailed all Aurora councillors and copied Ms. Clarke. The email stated in part:
Lead dog park volunteer Helen Clarke brings more dogs into the park than she AND her staff can control. Today the staff let four dogs get loose out of the van. They could easily have been killed….
The lead volunteer knows the rules and ignores them ALL because she knows she is in charge of administering the rules…
bb. Ms. Clarke once again reported Mr. Lepp to the police. She also emailed Mr. Lepp back, stating in part as follows:
I have reported you to the police. I have blocked you from contacting me. The fact that you have changed you email to get through to me is a cyber crime.
This email is slander and defamation of character.
I do not have a contract with the town. I am not the lead volunteer for the park. Therefore, you have no reason to contact me.
Never contact me again for any reason and stop following me.
cc. On May 11, 2018, Mr. Lepp emailed Ms. Clarke’s sole proprietorship, Time 4 Paws, copying the Aurora councillors, YRP officers, and others, with several pages of complaint about Ms. Clarke’s and Aurora’s perceived misconduct.
dd. Also on May 11, 2018, Mr. Lepp issued a claim in Newmarket Small Claims Court seeking damages for malicious making of false claims to the police.
ee. In late May 2018, Ms. Clarke was served with the claim and retained paralegal, Jaclyn Solmon.
ff. The police investigated and Mr. Lepp was arrested on May 30, 2018.
gg. Mr. Lepp was placed on a recognizance of bail containing a term “not to mention Helen Clarke, Jaclyn Solomon, Mandie Eddie or the TIME 4 PAWS dog walking business in any on-line media”.
hh. On August 29, 2018, Mr. Lepp wrote a response to a Google Review. The review starts with a criticism of Mr. Lepp from “Daria Morgendorffer” and an indication that he was facing charges. Mr. Lepp’s response was lengthy. In that response, he referred to “Helen” and to her unnamed business and to their misconduct at the dog park. Mr. Lepp acknowledged at trial that the reference to “Helen” was a reference to Helen Clarke and that the reference to her business was a reference to TIME 4 PAWS.
ii. On August 30, 2018, D.C. Ward received an email from Jaclyn Solomon, specifically Exhibit 7A. This was described at trial as a copy of contents from the electronic “blog” of “boblepp.com”, a website D.C. Ward found to be registered to Mr. Lepp. D.C. Ward accessed the blog that day and saw on it what he described as a “Google drive”, with a lengthy web address ending with the words “Your vote?”. D.C. Ward clicked on the drive and saw the electronic version of documents entered as Exhibit 7b and 7c at the trial. Exhibit 7b is a copy of the “Aurora Lease Free Dog Park Agreement” signed by Ms. Clarke and others on May 14, 2015. Exhibit 7c is a copy of the upper half of the first page of the agreement and bears in the upper left corner the typed note “Contract Helen Clarke signed and volunteers.pdf”.
Analysis
Arraigned on the wrong charge
14Mr. Lepp was certainly arraigned with reference in the count to s. 372(4) - the punishment section. This occurs with great regularity.
15The only real question is whether Mr. Lepp was aware of, and understood, the charge brought against him. The wording of the count as read out to Mr. Lepp on June 12, 2019 was very clear - that “between the 1st day of December, in the year 2016, and the 11th day of May, in the year 2018, at the Town of Aurora, in the Regional Municipality of York, did without lawful excuse and with intent to harass Helen Clarke, repeatedly communicate with Helen Clarke by means of telecommunication…” There is nothing ambiguous about the wording. It was clear that the Crown was alleging that the conduct fell under s. 372(3) of the Criminal Code. The reference to the section number was superfluous.
16There is no merit to this ground of appeal.
The facts do not support a conviction under s. 372(4)
17Justice Harpur spent some time in his decision dealing with the two allegations involving this count, one in relation to Helen Clarke, the other in relation to Jaclyn Solomon. Ultimately, Justice Harpur found that Mr. Lepp was guilty as this offence related to Helen Clarke, but not as it related to Jaclyn Solomon.
18It must be noted that by the time Justice Harpur referred to this count, he had already decided that Mr. Lepp was not guilty of criminal harassment of Helen Clarke. He had spent several paragraphs describing how he had found the emails to be harassing and that “Mr. Lepp was aware of or reckless about Ms. Clarke’s harassment”, however, determined that Ms. Clarke’s evidence did not “establish fear of harm to her ongoing psychological well-being, as opposed to fear of continuing, episodic ‘badgering’ by Mr. Lepp.” Therefore, Mr. Lepp was entitled to an acquittal on the criminal harassment charge.
19However, in relation to repeated harassing telecommunication, the court stated as follows:
43…There is no issue as to whether Mr. Lepp’s communications to Ms. Clarke were repeated between December 1, 2016 and May 11, 2018. There is also no issue as to whether Mr. Lepp’s emails constituted telecommunications; the term is not defined in the Criminal Code but a purposive approach to s. 372(3) C.C. leads me to the conclusion that communications by way of the internet fall as much within the mischief intended to be enjoined as do telephone calls, at which the previous iteration of this section of the Criminal Code was aimed.
44As set out above in these reasons at paragraphs 31 to 42, I have found Mr. Lepp’s emails to be harassing, although not at a level which generated fear in Ms. Clarke for her safety in the sense of ongoing emotional or psychological health. Such fear is not an essential element of this offence, however.
45Mr. Lepp’s defence to the charge is that his emails were sent, not to harass Ms. Clarke, but rather with the lawful purpose of communication with the only and proper person to receive his concerns about the dog park; as Mr. Lepp said in his 3:36 p.m. email of November 29, 2017 (Exhibit 4, Tab 11), “You chose to run the dog park. You cannot just say ‘don’t bother me with complaints’.”
46I do not regard this as a defence with any substance, for two reasons. First, as Mr. Elder observed in argument, Mr. Lepp repeatedly told Ms. Clarke in his communications to her and others that she could “press delete” (July 22, 2017) or “block him” (November 29, 2017). These suggestions rather undermine Mr. Lepp’s insistence Ms. Clarke was his sole and essential sounding board.
47Second, whatever legitimacy there was to his initial communications to Ms. Clarke in her role as lead dog park volunteer, it came to an end when he was advised by her and Mr. Clarke in late December 2016 that contact must end. As indicated above in these reasons, Mr. Lepp’s excuse that Ms. Clarke was legally obliged to receive his communications in untenable; she had assumed no contractual obligations to him and did not, as a volunteer assistant at the dog park, somehow become Aurora’s official interface with dog park users. Ms. Tienkamp’s October 5, 2016 suggestion to Mr. Lepp that, with respect to the loose interlock pavers issue he might want to contact the volunteers, cannot reasonably be elevated to some sort of municipal fiat authorizing all dog park communications between Mr. Lepp and Ms. Clarke…
48Even if Ms. Clarke could properly be regarded as a municipal official, such persons are as entitled to the protection of s. 372(3) C.C. as any member of the public. That protection does not bar telecommunication or even repeated telecommunication but it does bar repeated telecommunication lacking a lawful purpose which “torments, plagues or badgers”, in the language of the Ontario Court of Appeal in R. v. Kordrostami…
The decision continued.
20In acquitting Mr. Lepp in relation to the count involving Ms. Solomon, Justice Harpur referred to R. v. Nadir, [1999] O.J. No. 322 (Sup. Ct.) and [2004] O.J. No. 2440 (C.A.), in acknowledging that the repeated communication, to fall within s. 372(3) must be for the exclusive purpose of harassing. In relation to Ms. Solomon, Justice Harpur was not satisfied that the communication was for this sole purpose as he stated, “the subject matter of his emails were not entirely beside the point”. Therefore, Mr. Lepp was acquitted.
21It is clear from Justice Harpur’s reasons that he considered the essential elements of this offence, including whether there was a lawful excuse given Ms. Clarke’s relationship with the Town of Aurora. His findings of fact and application of the facts to the law are sound and reasoned.
22There is no merit in this ground of appeal.
The harassing communication charge was laid outside of the six-month limitation period
23For clarity, the date range on the harassing communication charge in relation to Helen Clarke was December 1, 2016 to May 11, 2018. The information was sworn on June 19, 2018 - within six months of May 11, 2018. However, Mr. Lepp took the position that there was no such communication in May 2018, as the emails he sent in May had a lawful excuse and did not harass anyone. The previous email was on November 29, 2017, therefore, outside of the six month limitation given the date of the swearing of the information.
24At the outset of the trial, Mr. Lepp requested that the first two charges, with date ranges from 2016 to 2018 be “withdrawn” as he argued that those acts “arose prior to six months ago”. (Transcript of June 12, 2019, page 40) The Crown indicated that this had been resolved before Justice Kenkel, the case management judge. Mr. Lepp also described raising this issue before Justice Kenkel and that Justice Kenkel disagreed with him and he was “thrown out of the courtroom”. Mr. Lepp confirmed that no appeal had been taken from Justice Kenkel’s decision. (Transcript of June 12, 2019, page 41)
25On June 13, 2019, Mr. Lepp raised this issue again and insisted that the matter had not been decided by Justice Kenkel. No transcript was presented at the time, but the Crown suggested that the defence could raise this issue again at the trial once everyone had a chance to review the transcript from Justice Kenkel. (Transcript of June 13, 2019, pages 172-173)
26On July 4, 2019, Mr. Lepp appeared before Justice Ghosh requesting that the transcript of the proceedings before Justice Kenkel, in relation to this issue, be placed before Justice Harpur, as Justice Kenkel had not ruled definitively on the issue, and that he was permitted to raise it again at trial. Justice Ghosh personally undertook to get the transcript to Justice Harpur. After a break in the proceedings, Justice Ghosh confirmed that he had already sent an email to the trial coordinator directing this transcript to Justice Harpur. The email stated in part:
…The timely transmission of this transcript is of utmost importance to Mr. Lepp as he believed he has been improperly barred from bringing certain applications before the trial judge due to a misapprehension of Justice Kenkel’s earlier direction / ruling as the pretrial or case management judge. (Transcript of July 4, 2019, page 29)
Mr. Lepp indicated that this satisfactorily addressed his concern.
27On July 5, 2019, when this matter returned before Justice Kenkel, His Honour said as follows:
…those were comments on a ruling for an application of summary dismissal of the charges and that application was dismissed.
The accused is free to bring up that same application to the trial judge if he wishes. I’m not sure – he also if he wishes to provide the ruling, the prior ruling, that probably would be a fair thing to do…but he’s free to do it and it’s just that his application to summary dismiss the thing before it got to trial was dismissed, so…he’s in front of the trial judge, Justice Harpur has jurisdiction over it, I’ll let His Honour deal with everything that flows from that…
(Transcript of July 5, 2019, pages 5-6)
28On July 22, 2019, Mr. Lepp raised this issue again with Justice Harpur, stating that there was no harassing behaviour in the six-month period prior to the charges being laid. The Court stated:
The Court: You’re right that it would be premature for me to come to a conclusion without having heard the trial evidence that there wasn’t any harassment in the six months preceding the laying of the information. The Crown’s position is that there was such…harassment…Until I’ve heard all the evidence, I can’t make a decision about that. So as long as the allegation is outstanding as it is, I’m obliged to comply with the case law…which tells me that where some of the events alleged precede the six-month limitation period and some fall within…I’m to consider all of them. And that, I think, is what Justice Kenkel was attempting to convey back on whatever is the date of this transcript, November the 30th, 2018, when you brought a similar application before him. (July 22, 3-4)
The Court: …But I am prepared to accept that the matter can be raised by you again today. It has been. I have read the application…And I am, I am dismissing the application with respect to the Crown’s allegations which precede the six-month limitation period. And the reason for that is that the Crown has alleged and there are outstanding allegations of harassment within the six-month limitation period as part of it continuing harassment on your part…
(Transcript of July 22, 2019, page 5)
29In his reasons for judgment, Justice Harpur clearly found that the repeated harassing communication continued up to and including May 2018. At para 34 of his decision, Justice Harpur stated:
34As to whether Ms. Clarke was harassed by Mr. Lepp’s post-December 30 communications, she testified to distress about her business reputation and standing in the community from the time of her receipt of a copy of Mr. Lepp’s email to Aurora on July 22, 2017 critical of her park use. She also testified that she was distressed about that matter and her financial jeopardy as a park volunteer after receiving Mr. Lepp’s emails to her and Aurora on November 29, 2017. She testified that her distress was unremitting until, and reinforced by, Mr. Lepp’s emails to Aurora and her business on May 10 and 11, 2018. Her evidence that Mr. Lepp’s communications were an ongoing source of real concern is corroborated by the fact that she contacted the police both in November 2017 and in May 2018.
37…I am not persuaded by Mr. Lepp’s submission that Ms. Clarke’s momentary aggressiveness on this occasion derogates from her evidence that she was tormented by the concerns raised by Mr. Lepp’s communication to and about her in the summer and fall of 2017 and earlier in May 2018.
While, for other reasons, Justice Harpur ultimately found that these communications did not amount to criminal harassment under s. 264(3), he certainly found that the communication was harassing as it related to s. 372(4).
30The six-month limitation issue was dealt with on several occasions by both Justice Kenkel and Justice Harpur. Each time, the Court disagreed with Mr. Lepp’s characterization of the issue, given that the allegation related to a continuing offence that ended on May 11, 2018. The fact that Mr. Lepp believed that any potential offending communication ended in November 2017 does not end the inquiry. Justice Harpur did not agree with that characterization and held that the harassing communication continued until May 11, 2018. Given the evidence before him, this was a reasonable finding on the part of the trial judge.
31There is no merit in this ground of appeal.
Mens rea was not proven with respect to the breach charges
32With respect to a breach of recognizance, the Crown must prove that the accused had the appropriate mens rea, in that the accused knowingly and voluntarily performed or failed to perform the act or omission which constitutes the actus reus of the offence. With respect to the mens rea, Justice Harpur found as follows:
61The phrase “on-line media” is vague. Mr. Elder submitted that a common sense definition, given the alleged mischief the recognizance was intended to bring to an end, is any reference to these persons or the business, in (1) any written material placed on the internet by Mr. Lepp; or (ii) any communication by Mr. Lepp by means of the internet. In his submissions, Mr. Lepp fairly conceded an understanding of the former prohibition, to the extent that he knew he could not place on the internet any material referencing these persons or the business which could be seen by “others”, that is, persons other than those to whom he might be sending such material directly by email or text.
62A person who is bound by a restriction in a recognizance is entitled to know what it means precisely, precisely what it is they can and cannot do. Given the vagueness of the phrase “on-line media”, I do not agree with the broad restriction urged by the Crown to the effect that any reference to the named persons or business in material placed by Mr. Lepp on the internet in any manner would constitute a breach.
Justice Harpur went on to find Mr. Lepp not guilty of the August 25th, 2018 breach charge, given that he agreed with Mr. Lepp’s characterization of “on-line media”. He performed a complete legal analysis, concluding that the information was not posted for the public, therefore, the August 25th breach was not proven.
33As it related to the August 29th allegation of breach, Justice Harpur stated in part as follows:
66Exhibit 5 at trial is what was described by Ms. Clarke, Detective Constable James Ward and Mr. Lepp as a “Google review”. Mr. Lepp acknowledged that he wrote the response portion of it on or about August 29, 2018, at which time he remained subject to the aforementioned recognizance term…
67Mr. Lepp testified at trial that the reference in the response to “Helen” was, indeed, a reference to Helen Clarke and that the reference to her business was, indeed, a reference to TIME 4 PAWS. He said he revisited his response shortly after posting it and deleted the reference to “Helen”. His submission concerning the allegation of breach is, again, that the response did not “mention” Helen Clarke” or “TIME 4 PAWS”, as well as that his words were not placed on “on-line media”.
34Given the evidence, including the testimony of Mr. Lepp, the facts in relation to this allegation of breach were not controversial. Mr. Lepp conceded having posted the response on August 29, 2018. He knew he was subject to the bail term at issue. He understood that he could not place on the internet any material referencing these persons or the business which could be seen by persons other than those to whom he was sending such material directly. Mr. Lepp agreed that “Helen” was a reference to Helen Clarke and that reference to her business was a reference to “Time 4 Paws”. Mr. Lepp’s only argument was that he did not “mention” any of the prohibited people or business. Justice Harpur disagreed with Mr. Lepp’s characterization of “mention” and found that a use of the full name of the person or business was not required. As to whether this was placed on “on-line media”, the court found that the response was capable of access by the “internet public at large” and, therefore, fell within “Mr. Lepp’s (and my) restricted definition of ‘on-line media.’”
35As it related to the August 30th allegation of breach, Justice Harpur stated in part as follows:
70Exhibits 7a, 7b and 7c at trial were introduced through D.C. Ward. He said he received Exhibit 7a from Ms. Solomon on August 30, 2019. Mr. Lepp was still bound on that date by the recognizance. D.C. Ward described the document as a copy of contents from the electronic “blog” of “boblepp.com”, a website D.C. Ward found to be registered to Mr. Lepp. D.C. Ward said he proceeded to access the blog that day and saw, on its last page, what he described as a “Google drive” – the rather lengthy web address preceding the words “Your vote?” He said he then clicked on the drive and saw the electronic version of the documents he reproduced in Exhibits 7b and 7c. Exhibit 7b is clean copy of the “Aurora Lease Free Dog Park Agreement” signed by Ms. Clarke, among others, on May 14, 2015. Exhibit 7c is a copy of the upper half, approximately, of the first page of that agreement and bears in the upper left corner the typed note “Contract Helen Clarke signed and volunteers”.
71…Mr. Lepp does not suggest that the blog was not his but submits, again, that a blog is not a placing of material on “online media”.
72…It seems to me to be almost the opposite of a targeted or directed electronic communication, such as an email or a text. It is, rather, one or a series of posts by a person on his or her website to which others who choose to visit the website have access. One who posts a blog online has no more confined the ambit of those who might view its contents than one who tacks information to a bulletin board in a public space…
73Mr. Lepp rightly submits that the reference to Ms. Clarke is not contained in his blog itself, Exhibit 7a, but rather in the “hyperlink” or “Google drive” comprising Exhibits 7b and 7c. Mr. Lepp relies in this regard on the decision of the Supreme Court of Canada in Crookes v. Newton, 2011 SCC 47, 2011 S.C.C. 47. He submits that by reason of the intervening hyperlink step required to view material naming Ms. Clarke, he cannot be taken to have “mentioned” her merely by inclusion of the hyperlink in a blog which does not, itself, refer to her…
Justice Harpur then distinguished Crookes, and stated that, “This would be permitting him to accomplish indirectly that which he was forbidden to accomplish directly.” Further, Justice Harpur found that “the blog falls into the exception in Crookes as a ‘presentation of content from the hyperlink material in a way that actually repeats the…content’. The thought being expressed in the blog is incomplete unless the reader has viewed the hyperlink. It is necessarily incorporated in the blog.” It is of note that at one point in his submissions on this appeal, Mr. Lepp acknowledged that he was upset that he had been arrested and “I blogged the document to tell people I was right”.
36There was no question in this trial as to whether Mr. Lepp knowingly did what was prohibited in the bail recognizance. Mr. Lepp admitted doing that which was suggested. He disagreed with whether his conduct amounted to a breach, in that he did not “mention” the prohibited names or business, or did not mention those names on “on-line media”. Justice Harpur considered Mr. Lepp’s arguments very carefully and provided thorough reasons for his conclusions. Justice Hapur’s analysis was a sound one. He determined that Mr. Lepp was guilty based on the controverted facts. He was entitled to find him guilty.
37There is no merit to this ground of appeal.
Issues relating to representation by counsel / paralegal at trial
38The trial took place over a number of days. At the trial, Danielle Trombly acted as 486 counsel, cross-examining Helen Clarke and Jaclyn Solomon. In addition, paralegal Angela Rivet, assisted Mr. Lepp throughout.
39The trial was scheduled to commence on June 11, 2019. Sometime previously, on May 2, Justice Kenkel made an order for the appointment of 486.3 counsel, specifically, for that counsel to conduct the cross-examination of two of the anticipated Crown witnesses. Mr. Lepp submitted that he was initially led to believe that Mr. Starer was assigned to be 486 counsel on both this trial as well as a separate preliminary hearing that was scheduled for June 18, 2019. Mr. Lepp met with Mr. Starer approximately a week before the commencement of the trial, and in the midst of that meeting, Mr. Lepp was advised that Mr. Starer was not assigned as 486 counsel on this trial. (Transcript of June 11, 2019, page 4-5)
40On May 26, 2019, Assistant Crown Attorney, David Moull, emailed Mr. Lepp to advise him that Ms. Trombly was assigned as 468 counsel to this trial. Ms. Trombly stated that she made efforts to reach out to Mr. Lepp without success. Therefore, by the first day scheduled for the trial, 486 counsel and Mr. Lepp had not met. (Transcript of June 11, 2019, page 5)
41Before Justice Harpur, on June 11, 2019, Mr. Lepp stated:
Mr. Lepp: When the Court told me I had one lawyer, I’d only have to bring one lawyer up to speed, everything is the same issue, Your Honour. I spent six hours with Mr. Starer just on the 18th….This lady has spent – knows nothing of my case. (Transcript of June 11, 2019, pages 5-6)
Mr. Lepp explained that many of the issues in the trial and the preliminary hearing were the same and that there was a lot of overlap. Further, when asked whether he had spent any time with Ms. Trombly, Mr. Lepp stated:
Mr. Lepp: No, she never contacted me, Your Honour. I was not given contact information for her, where she worked, what her law firm name is, what her phone number is, what an e-email address is, what a text message address is. I have nothing. Your Honour, I have a proposal that I think will solve it. Ms. Rivet, Angela Rivet, of Newata Legal, Your Honour, was my paralegal earlier on in this case. She's been in working for me for a couple of years. I was intimately aware of the people involved on both sides, and I've retained her to ask questions for my behalf. May 2nd, also, Judge Kenkel said "You can bring your own representative as well to ask questions as well as the 486 lawyer". So coming here this morning, I have Mr. Starer and I have Ms. Rivet who's here today on a limited scope basis, which I would like extended, just to ask my questions.
(Transcript of June 11, 2019, pages 6-7)
42After asking the Crown and clarifying that the only matters proceeding were summary conviction matters, the following exchange took place:
The Court: Is there any reason Mr. Lepp or sorry, Mr. Elder, why Ms. Rivet could not appear as agent for Mr. Lepp with respect to these charges?
Mr. Elder: If she is conducting the cross-examination I don’t necessarily see an issue. My concern, however, might be a jurisdictional one because Justice Kenkel made the 486.3 order, and 486.3 specifies counsel. So I leave that with Your Honour. I’m not necessarily objecting to her doing the cross-examination but there may be a jurisdictional question then. (Transcript of June 11, 2019, page 8)
43The Court then stated:
The Court: …The issue is whether or not Ms. Rivet, a paralegal, should proceed with the cross-examination of these complainants or Ms. Trombly, a lawyer, should proceed with the cross-examinations, and I wonder if either of the potential complainants have had discussed with them the prospect of being cross-examined by a paralegal as opposed to a lawyer.
Mr. Elder: I haven’t discussed that with them. I don’t see why that would be an issue. I can say that. As long as obviously Ms. Rivet has satisfied herself of her scope of practice under the Law Society rules, I don't see a reason that that would be a problem.
The Court: And your concern from the Crown's perspective is that Justice Kenkel, having made an order which appoints counsel, a term which connotes a practicing lawyer, it would not be appropriate for me as the trial judge to alter that order by permitting someone who is a paralegal to conduct the cross-examination?
Mr. Elder: As a purely jurisdictional question, yes, Your Honour. I’m not trying to second guess Your Honour’s authority as trial judge. It’s just something that struck me…in the wording of the Statute.
Ms. Rivet then asked for a moment to speak to Mr. Lepp which was granted. The Crown also went to speak to the complainants. Upon returning, Mr. Elder raised a potential conflict of interest:
Mr. Elder: …I've just spoken to both the people who are the complainants subject to the 486.3 order. The concern is conflict of interest actually. I understand from Ms. Solomon, who is a paralegal, that there has been litigation between the two parties…..Essentially all the parties, so between Mr. Lepp and Ms. Clarke. Ms. Solomon represented Ms. Clarke, and I understand at various points Ms. Rivet has represented Mr. Lepp. There has also been Law Society complaints….so with respect to conflict of interest I think that is an issue. Notwithstanding that, I wouldn’t have any issue, I don’t think. (Transcript of June 11, 2019, pages 9-12)
The Crown then suggested that the court hear from Ms. Trombly to get her position.
44Ms. Trombly then advised the court that she was appointed in April and accepted the certificate. She indicated that she had called the number she was provided for Mr. Lepp, had left voicemail and had not heard back. (Transcript of June 11, 2019, pages 12-13)
45The Court then pointed out: “Yes. The Information says that on April the 3rd, then counsel, who I guess is you, Ms. Rivet, were removed from the record”. Ms. Rivet confirmed that to be accurate. The court then asked, “Is that because you were being replaced by someone or you’re simply getting off?” (Transcript of June 11, 2019, page 13)
46Ms. Rivet then stated:
Ms. Rivet: No, I removed myself at that time, and Mr. Lepp has retained me, and I’m going to assist him during trial today, not representing him….I’m only to assist, and at that time when I was representing Mr. Lepp, I believe the s. 486 was a non-issue because I was at that point going to be representing him for the three day trial. (Transcript of June 11, 2019, page 13-14)
47There was then a discussion about the potential conflict. The Court then requested that the Crown obtain affidavit evidence as to the potential conflict so that the court could make an informed decision. The Court stated: “If that’s presented both Mr. Lepp and to the Court I’ll then consider whether or not, in my view, there is a conflict which prevents Ms. Rivet from proceeding. If I decide that there isn’t, then subject to any further submissions from counsel or from Mr. Lepp, I would be inclined to allow Ms. Rivet to proceed on his behalf.” (Transcript of June 11, 2019, page 16) The Court took the position that the 486 order could be revisited. (Transcript of June 11, 2019, page 17). The Court then broke for just over half an hour.
48When court began again, the court stated:
The Court: Mr. Lepp and counsel, before we get too far down this issue of a conflict, down that road that is, I wanted to alert you to what had struck me as I reviewed the apt provisions in the Criminal Code. Section 2 of the Criminal Code defines counsel as a barrister and solicitor. Justice Kenkel's order was made under 486.3 and it appoints counsel. It does the not appear to me that when the Crown has brought an application under 486.3 the Criminal Code provides for the option of a paralegal. The two options available to the Court seem to be to allow the application and appoint counsel, that is to say a barrister and solicitor, or to reject the application and to allow the accused person to conduct cross-examination, him or herself. There's simply nothing in the Code about the appointment of a paralegal. I haven't found anything that tells me the rationale behind that, but certainly the rationale behind s. 486.3 of the Criminal Code is to ensure that a Court receives a full and fair account from a witness and that the witness not be distracted in some fashion from that. It may be that Parliament's thinking was that the best way of ensuring a full and fair account from a witness was to ensure that in proper circumstances the person who conducted the person's cross-examination was a lawyer. I say all this because I'm concerned that my original take on this, which was that it may be possible for me to allow Ms. Rivet to proceed with the cross-examination may simply not be an available option in this case. So before I got you to fill out affidavits and file those with me, I would like you to address your minds to this issue of whether or not I have jurisdiction to do anything other than as already has been done, that is to say the appointment of a lawyer to conduct these cross-examinations, something that has already been done. If that is my ultimate conclusion then it seems to me that with due respect to Ms. Rivet the only route available to me, if this trial is to begin today, is for Ms. Trombly to proceed as the counsel who has been appointed. So let me hear first from the Crown. (Transcript of June 11, 2019, pages 18-20)
49Further discussion then ensued between the Court, the Crown and Mr. Lepp.
50It is the view of this court that the discussion that ensues is somewhat misguided. When Ms. Rivet was on the record for Mr. Lepp earlier in the year, she clearly could have represented him at a trial, which would have included cross-examination. The Crown clearly did not intend to bring a 486 application until Ms. Rivet was no longer representing Mr. Lepp, leaving the reality that he would then conduct any cross-examination on his own. Even with a 486 appointment in place, Mr. Lepp still had the ability to choose counsel or a paralegal to represent him at the trial. The 486 appointment does not and cannot preclude Mr. Lepp from obtaining qualified representation if he wished. The 486 application is simply to ensure that Mr. Lepp does not conduct the cross-examination of the two complainants on his own. Mr. Lepp must have been given complete control over whether he retained representation. If Mr. Lepp retained representation then the need for 486 counsel would go away.
51However, in this case, Ms. Rivet made it clear in submissions that she was not there to represent Mr. Lepp, but rather to assist him. Ms. Rivet’s role will become clearer below. This, therefore, left Mr. Lepp unrepresented at trial. Therefore, the 486 counsel was necessary as previously determined by Justice Kenkel. Ms. Rivet never suggested that she was there to cross-examine any witnesses, in fact, as will be seen below, her suggestion was quite the contrary.
52As for a conflict of interest, there would appear to be no evidentiary basis presented to Justice Harpur to support that. To go further, simply because Ms. Rivet had represented Mr. Lepp on other matters involving Ms. Solomon, this would never amount to a conflict of interest. It is not as if Ms. Rivet represented Ms. Clarke or Ms. Solomon in the past. It is very common that a lawyer or paralegal would continue to represent a client on a future matter. It happens with great frequency.
53This court is of the view that Ms. Rivet could have represented Mr. Lepp, however, that was not an option, as Ms. Rivet made it clear that she was not retained to cross-examine witnesses but rather simply to assist.
54The attention then turned to Ms. Trombly, and the court asked how much time she would need to spend with Mr. Lepp to proceed with the cross-examinations. She stated as follows:
Ms. Trombly: Your Honour, I do have concerns now about the time constraints that Mr. Lepp is telling me that he sat down for six hours with his other counsel to chip into this matter. I mean I've reviewed disclosure on my own, but I haven't had the advantage of six hours to sit down to talk with him, and I mean obviously we've thrown a little bit of a wrench in the plans here with my inability to get ahold of him prior to today. So I mean if I were ordered to go forward I would be asking for an adjournment of the trial so that I can sit down with him and get at least those six hours with him. (Transcript, June 11, 2019, page 25-26)
The Crown did not oppose an adjournment.
55After hearing further submissions from Mr. Lepp, the court stated:
The Court: Mr. Lepp, I am going to give you some time to talk to Ms. Trombly about her proceeding to conduct the cross-examinations on your behalf. I am not going to alter the Order that has been made by Justice Kenkel, not because I think I don't have jurisdiction to do so, but because it seems to me I would be right back in the same position Justice Kenkel was in, and that is being directed by the Criminal Code to appoint counsel in this situation, that is to say a barrister and solicitor. Again, I cannot tell you why Parliament has decided that that is a necessity, but they seem to have done so by using the term "counsel" in the legislation, and counsel is a defined term which excludes paralegals. It may be, as I say, that the effort is to ensure the fullest and fairest of cross-examinations, and Parliament may have thought that was better conducted through a lawyer than a non-lawyer. Whatever the reasoning I am stuck with that provision in the Criminal Code. Since even if I were to strike Justice Kenkel's Order or vacate it, and the Crown would be bringing another application under s. 486.3 before me for again the appointment of a barrister and solicitor to conduct these cross-examinations. Faced with that, I would either be making that appointment, and the onus would be, or at least, yes, the onus of establishing that that was inappropriate would be upon you in that application given the nature of the charges that you are facing. Even if I were to come to the conclusion that counsel need not be appointed to conduct cross-examinations, as far as I can see, the legislation leaves me in a position where you are the person who is to conduct the cross-examinations, and that is a very unlikely outcome on a second 486.3 application in this case. So all of that to say that I think the appropriate thing to do is to leave Justice Kenkel's order in place. That results in Ms. Trombly being the appointed counsel. I accept that you and she have not had a sufficient opportunity to talk with one other in order for her to prepare adequately for these cross-examinations, and I'll see to it that you do have as much time as is reasonably required. Ms. Rivet, I am not sure where that leaves you in this proceeding. Was the intention that you would come back on board solely for the purposes of cross-examination if you were allowed to do so? (Transcript of June 11, 2019, page 29-31)
56Ms. Rivet responded: “Your Honour, I believe Mr. Lepp would like for me to assist while he represents himself…And I think that it will be required, and I think that I can bring some value to his case that he’s presenting, but I would not be – I have no intent on cross-examining if you are upholding the Order.” Ms. Rivet also made it clear that she would not be calling evidence on behalf of Mr. Lepp. (Transcript of June 11, 2019, page 31). The Crown took no objection to Ms. Rivet’s role at the trial, in that she would sit at counsel table and assist Mr. Lepp, as long as she was not speaking on the record, calling evidence or examining witnesses.
57By this time, it was 10 minutes to 11:00. The court suggested a break until 2 at which point Ms. Trombly and Mr. Lepp could advise the court in terms of their preparation for cross-examination. (Transcript of June 11, 2019, page 32) Mr. Lepp immediately stated that this would not be enough time and Ms. Trombley confirmed this. The court then suggested to adjourn to the following morning. (Transcript of June 11, 2019, page 37). Ms. Trombly again stated that this was not enough time and suggested a couple of days to go through all of the documentation. The Crown then suggested to at least return the following morning to check in on the status of things, which the court was inclined to agree with.
58At this point, Ms. Rivet stood and stated:
Ms. Rivet: Thank you, Your Honour. I'm happy to assist in prepping Ms. Trombly with getting her prepared, as well as I'm happy to assist during the cross-examination where I would just again be sitting with Mr. Lepp and Ms. Trombly and help maybe with the cross-examinations. I do know this case inside and outside for the last year and a half.
The Court agreed with this suggestion and stated: “Well, that may have the effect of expediting the preparation by Ms. Trombly.” (Transcript of June 11, 2019, page 38)
59The court did not arraign Mr. Lepp on June 11, given that the judge was a per diem judge concerned that if the trial did not start the following day, it might lead to delays in having him return to complete the case. The case was then adjourned to the following morning.
60On the following morning, June 12, 2019, Ms. Trombly stated as follows:
Yes, Your Honour, I spent several hours with Mr. Lepp yesterday, and I am ready to proceed forward with the trial today. (Transcript of June 12, 2019, page 3-4)
Ms. Rivet was seated at counsel table with Mr. Lepp and Ms. Trombly and confirmed for the court that she would be “providing assistance to Mr. Lepp”. (Transcript of June 12, 2019, page 4) Mr. Lepp did not take any objection to proceeding that day.
61Justice Harpur then addressed Mr. Lepp directly and offered some guidance as to how the trial would proceed, including giving him time to review the “Guide for Accused Persons in Criminal Trials” document generally provided by the Ontario Court of Justice. (Transcript of June 12, 2019, page 5-8) Mr. Lepp then indicated that he had read this document the week prior. (Transcript of June 12, 2019, page 8) When asked if he had any questions, Mr. Lepp stated:
Mr. Lepp: The questions I have all relate to exactly from the first question how the three of us are allowed to interaction moment by moment. (Transcript of June 12, 2019, pages 8-9)
The Court responded:
The Court: As long as it’s not interfering with the giving of testimony by a witness, there’s no reason why you can’t consult with both Ms. Rivet and Ms. Trombly at counsel table. (Transcript of June 12, 2019, page 9)
Ms. Rivet then attempted to clarify that Mr. Lepp may require time to consult with Ms. Trombly and Ms. Rivet with respect to proposed cross-examination. The court responded:
The Court: Well, I don’t mind having a pause occur, subject to what I hear from Mr. Elder following the examination-in-chief of the Crown’s witnesses and prior to you’re beginning cross-examination, Mr. Lepp. That would give you the opportunity to consult with Ms. Rivet and my (sic) Trombly if you wish to about any questions beyond that they might have that you haven’t thought of. (Transcript of June 12, 2019, page 9)
The Crown indicated that he had no difficulty with that.
62Mr. Lepp then explicitly asked whether he could have a break in the hall for a few minutes after each witness. The Court then stated:
The Court: I'm rather hoping that this won't be so complicated that that is required as opposed to a quick discussion with counsel as to what needs to be asked. A better system, I think, would be one whereby presumably you're going to have your own set of questions, Mr. Lepp, following witnesses' examination-in-chief. You can proceed with those questions, and you can then ask Ms. Rivet and Ms. Trombly if they think there are things that you should go into that you haven't already. (Transcript of June 12, 2019, page 10)
Mr. Lepp’s response was “excellent”. (Transcript of June 12, 2019, page 10)
63Mr. Lepp then further confirmed that if he was “huddling quietly with my two counsel you’re okay with that?”, to which the court responded: “I am. It can't interfere with the giving of evidence by the witness. You don't want to be huddling at a stage where the witness is actually giving evidence because you'll miss the evidence.” (Transcript of June 12, 2019, page 10) Mr. Lepp agreed with this and seemed very satisfied with the explanation the court provided.
64The Court then gave further explanation to Mr. Lepp as to how the trial would proceed and asked Mr. Lepp if he had any questions. (Transcript of June 12, 2019, pages 12-16) Mr. Lepp stated that the first witness the Crown intended to call was someone that he was not expecting and was not ready for. The Court suggested that the witness be called in examination-in chief and that the court would then allow a break for Mr. Lepp to consider that evidence and formulate a cross-examination. Mr. Lepp said, “Excellent. Good solution”. (Transcript of June 12, 2019, page 18) Mr. Lepp then asked about his own testimony to which Justice Harpur responded that he would want to wait until he heard the Crown’s case to decide whether he wished to testify. (Transcript of June 12, 2019, page 18) Finally, Mr. Lepp asked for clarification on Ms. Trombly’s role, indicating that his understanding was that she was simply to ask questions and no other role in the case. The Court clarified, “Well, her role is to equip herself to conduct the cross-examination of the complainants.” (Transcript of June 12, 2019, page 21) Mr. Lepp then expressed concern about the Crown making a resolution offer through Ms. Trombly. The Court then explained that resolution offers are typical in a criminal case.
65The trial commenced.
66Later on June 12, 2019, Ms. Rivet was permitted to address the court as to a matter of concern she had regarding a conflict that may arise in relation to an affidavit that she had signed on another matter, which Mr. Lepp intended to present at evidence at the trial (Transcript of June 12, 2019, page 133) The Court responded that he would only be willing to hear evidence from Ms. Rivet, directly from Ms. Rivet, as opposed to an affidavit (Transcript of June 12, 2019, page 134). Mr. Lepp indicated that he would not be calling Ms. Rivet. (Transcript of June 12, 2019, page 134) Therefore, there was no issue with her sitting at counsel table. (Transcript of June 12, 2019, page 137)
67Ms. Trombly did make objections and submissions during the evidence of Ms. Clarke. (Transcript of June 12, 2019, pages 147, 158) At the end of the examination-in-chief, Ms. Trombly indicated that she was prepared to start the cross-examination. The court took an afternoon break and the cross began. (Transcript of June 12, 2019, pages 169-170) The cross-examination took place that afternoon from 3:47 pm - 4:25 pm, on the morning of June 13, 2019 from shortly after 9:37 am (after discussing some scheduling) to 10:55 am, and further starting at 11:14 am for only a few minutes to address a few questions. At one point during the cross-examination, Mr. Lepp stated in response to an answer from Ms. Clarke in cross, “Hearsay, hearsay. It’s hearsay.” (Transcript of June 12, 2019, page 177) Mr. Lepp also made submissions during the cross-examination, as to the relevance of the “Community Partnership Program – Agreement No. PKS-011-15 – Aurora Leash Free Dog Park Agreement”. (Transcript of June 13, 2019, pages 17-20) Ms. Rivet then tried to clear up the issue, however, the court would not allow submissions from her. Ms. Rivet then asked to consult with Ms. Trombly, who then made submissions (Transcript of June 13, 2019, page 20) Ultimately, the court decided that the interpretation of the agreement was not relevant and Ms. Trombly agreed to direct her questions elsewhere. Ms. Trombly indicated that her questions were more directed at a video that she wished to play, however Mr. Lepp stated that he was not ready with the video and asked her to move on. Ms. Trombly then turned to a general occurrence report. (Transcript of June 13, 2019, pages 21-2) Mr. Lepp appeared to rise a few times during cross-examination and the court cautioned him abut this. At one point, Ms. Trombly indicated that it was distracting. (Transcript of June 13, 2019, page 32)
68With respect to Jaclyn Solomon, Ms. Trombly cross-examined her on June 13, 2019, starting at page 137 and continuing to page 165 of the transcript. At the end of June 13, 2019, Ms. Trombly asked to be excused from the proceedings as her role in cross-examining the two witnesses was complete.
69At the end of the day on June 13, 2019, Ms. Rivet raised the fact that Mr. Lepp wanted to retain her for the remainder of the trial and that she was happy to do so but that there was an earlier issued raised about a conflict. The court suggested that Ms. Rivet and the Crown attempt to work it out, but if not, he was prepared to hear the matter prior to the return dates in July. (Transcript of June 13, 2019, pages 173-180)
70On July 5, 2019, when the matter came before Justice Kenkel for issues related to representation at another preliminary hearing, Mr. Lepp stated, “Ms. Tremblay (sic) did an excellent job”, “She did a fabulous job”, “In two days we got through all the witnesses and I was extremely happy with her performance”, “Ms. Tremblay (sic) was assigned and did an admirable job”, “I’m happy with Ms. Tremblay (sic)”. (Transcript of July 5, 2019, page 23-25) In fact, on that day before Justice Kenkel, Mr. Lepp was asking for Ms. Trombly to be 486 counsel at his separate preliminary hearing. Even in submissions during the hearing of this appeal, Mr. Lepp stated that Ms. Trombly did a “great job”.
71As for Ms. Rivet’s representation of Mr. Lepp, when the matter returned on July 22, 2019, the Crown stated:
Mr. Elder: We have Mr. Lepp here and Ms. Rivet is still assisting him I understand…
Mr. Elder: I understand she’s not though coming on record.
(Transcript of July 22, 2019, page 1)
There was no further discussion of Ms. Rivet representing Mr. Lepp at that time.
72During the cross-examination of Officer James Ward, Ms. Rivet and Mr. Lepp spoke off the record a number of times.
73On July 24, 2019, the Court offered for Ms. Rivet to conduct the examination-in-chief of Mr. Lepp. When Mr. Lepp was asked if he was agreeable with that procedure, he said, “No…I’ve written a narrative and it’s not suited to question/ answer”. (Transcript of July 24, 2019, page 175) Ms. Rivet then made some submissions, in that she would need some time to prepare to do the examination-in-chief if permitted as she previously thought that a conflict of interest was going to be raised and had just recently found out that it was not being raised. The Crown opposed any adjournment but suggested a “middle ground” in that Mr. Lepp would say what he wanted to say in narrative and then, if he wished, Ms. Rivet could have the chance to ask him further questions. Mr. Lepp stated, “Oh, I like that”, “I’m happy with that”. (Transcript of July 24, 2019, page 176) The Court agreed and that was the way the examination-in-chief proceeded. (As an aside, it does not appear that Mr. Lepp was ever sworn or affirmed.) Mr. Lepp then commenced giving evidence with questions from the Court and assistance from Ms. Rivet locating documents. Around the afternoon break, the Court suggested that Mr. Lepp and Ms. Rivet take some time to organize the examination-in-chief with documents readily at hand, available to be referred to. The evidence continued for the remainder of the day. At one point, the court offered to stop asking questions if Mr. Lepp felt it was prejudicial. (Transcript of July 24, 2019, page 197) Mr. Lepp suggested that he wanted to provide the complete chronology of events. The Court accepted a prepared chronology and marked it as an exhibit. (Exhibit 10) Mr. Lepp continued testifying with the court asking clarifying questions. Ms. Rivet also conducted a re-examination.
74As part of this appeal, Mr. Lepp referred to the fact that Justice Harpur “misused an amicus”. There was no appointment of amicus for the trial proper. While Justice Harpur did mention the possibility of appointing amicus curiae when submissions were being made, this never occurred. The Court did appoint amicus to assist with the preparation of materials for the Appellant’s 11(b) application, however, there was certainly no prejudice to Mr. Lepp as a result of this appointment. Amicus is appointed to assist the Court. In this case, amicus prepared thorough materials that argued for a stay of proceedings.
75In reviewing the entirety of the transcripts, it is the impression of this Court that the proceedings were exceedingly fair to Mr. Lepp. Justice Harpur, while often questioning the relevance of areas of cross-examination, allowed Mr. Lepp a great deal of flexibility in his questioning, especially when it came to suggesting that Ms. Clarke may have a motive to lie or mislead. The Crown also was very conservative about his objections, and in fact encouraged the Court to allow questioning that seemed irrelevant. The Court even considered the availability of Ms. Rivet when scheduling further dates. At one point, Mr. Lepp forgot the question he was asking. The Court thought it was a good question and had the reporter read it back so that Mr. Lepp would not miss the opportunity. On July 22, 2019, the Crown referred again to each count and advised Mr. Lepp what evidence he was relying on to prove each count. When it came to closing submissions, the Court offered Mr. Lepp the option of going first, given that he called evidence, or rather, to have the Crown go first and then respond to what he said. Mr. Lepp stated, “I think that’s an excellent idea. I’m still looking for what the issues are. So thank you. I’ll – I accept your proposal.” (Transcript of October 15, 2019, page 160) The Court even allowed Mr. Lepp to briefly reopen the case on October 17, 2019, however, it appeared that the new information went to a potential argument of entrapment or abuse of process and so the evidence was cut short to be determined on another day if a conviction occurred.
76This Court has provided this review of the proceedings to demonstrate that it was never the intention of Ms. Rivet to represent Mr. Lepp fully at this trial, including cross-examining witnesses. In fact, Ms. Rivet made it clear that this was not her intended role at the trial. Therefore, the 486 appointment was clearly necessary given the circumstances of this case. Ms. Trombly, very capably, carried out that role and Mr. Lepp expressed on numerous occasions that he was extremely satisfied with her work. When Mr. Lepp was offered the assistance of Ms. Rivet to conduct his examination-in-chief, he refused to have that done. Considering all of the circumstances, Mr. Lepp was provided with a great deal of assistance from Ms. Trombly, Ms. Rivet and the Court.
77There is no merit to these grounds of appeal.
Relevance of the "contract"
78The Appellant submitted that the trial judge decided early in the trial that the “contract” Helen Clarke signed with the Town of Aurora was irrelevant to the proceedings, and did not explain why the emails were exchanged cordially between the complainant and the Appellant from summer 2016 through fall 2017. The Appellant submitted that the signed “contact” - PKS-011-15 - was, in the middle of the trial, ruled not a factor by Justice Harpur, leading to the conclusion that he pre-judged a critical issue.
79There is no merit to this ground of appeal. Justice Harpur, while questioning the relevance, allowed the issue of the “contract” to be raised on a number of occasions during this trial. Justice Harpur referred to the “Aurora Leash-Free Dog Park Agreement” in his final judgment. Justice Harpur was entitled to question relevance of issues raised during the trial. On many occasions, Justice Harpur allowed prolonged questioning on areas that were not obviously relevant to allow Mr. Lepp some latitude.
80Justice Harpur’s view that the contract was not directly relevant to the issues he was being asked to decide is valid. There is absolutely no basis to suggest that Justice Harpur pre-judged this case in any way. As previously stated, his management of this trial is to be commended, as he was exceedingly fair and helpful to Mr. Lepp.
Trial judge did not properly understand technology
81The Appellant submitted that the trial judge did not properly understand technology which led to erroneous conclusions. It is the view of this court that this is a completely unfair characterization of the trial judge.
82The trial judge listened intently to Mr. Lepp’s evidence / submissions in relation to issues of technology on various occasions. The Court engaged in the discussion with Mr. Lepp, asking relevant questions and making astute observations. Ultimately, Justice Harpur took a “purposive approach” in defining “telecommunication”, focusing on the mischief that the section intended to capture. Justice Harpur agreed with Mr. Lepp and applied a conservative definition to the term “on-line media”.
83There is no indication that the judge did not properly understand technology or that this led to erroneous conclusions.
Use of a "verbatim 'reasons for sentence' document from the Crown" / reasonableness of sentence
84At the sentencing hearing, the Crown requested a global thirty-day custodial sentence, probation, and DNA, while Mr. Lepp requested an absolute discharge.
85Justice Harpur’s reasons for sentence released on July 17, 2020, were clearly meant to guide him through an oral judgment as opposed to a decision that was perfected for publication. The reasons were 15 pages in length, were thorough and thoughtful. The blanks left in the judgment were clearly left in order to get further clarification from the Crown and Mr. Lepp on information that the judge did not have, such as Mr. Lepp’s son’s name and a day and time period for Mr. Lepp to be able to attend to the necessities of life.
86The sentence imposed was fair and reasonable in the circumstances. Much of Mr. Lepp’s behaviour was targeted toward Helen Clarke, who was ill at the time. He was found to have breached his bail on two consecutive days in relation to the same person. Justice Harpur reviewed the factual findings that supported the convictions, Mr. Lepp’s personal circumstances, the positions of both parties, the suitability of a discharge when considering the public interest, the need for denunciation and deterrence, the principle of restraint, and ultimately the suitability of a conditional sentence and probation. Justice Harpur even carefully considered the request for DNA and refused to make such an order.
87The sentence is within the appropriate range and cannot be seen as harsh or excessive. There is no merit to this ground of appeal.
Straight indictable charge was included as part of the trial
88On June 11, 2019, there appeared to be several Informations before the court, despite the fact that the Crown had been asked on early occasions to “clean up” the Informations. Mr. Elder for the Crown stated:
Mr. Elder: …there’s a few Informations before the Court. I expect him only to be arraigned on two of those Informations, and I’ll discuss that in a little more detail soon… (Transcript of June 11, 2019, page 2)
89A short time later when the judge asked to see the Informations on which the trial was proceeding, the Clerk stated:
Well, there’s two sets here, Your Honour. (Transcript of June 11, 2019, page 7)
The Crown offered to “separate” the Informations for the court. (Transcript of June 11, 2019, page 7) The Court then asked if the charges were indictable to which Mr. Elder responded:
Mr. Elder: No. So the charges, I expect him to be arraigned on today, have been elected by summary conviction….There are some straight indictable matters that appeared on a previous Information which are a separate prelim. (Transcript of June 11, 2019, page 7)
A few moments later, Mr. Elder provided the court with the two Informations to be dealt with at the trial. (Transcript of June 11, 2019, page 8)
90On June 12, 2019, just before arraignment, Mr. Elder withdrew count 3 on the seven-count Information, an allegation of breach arising from August 28, as he had no reasonable prospect of conviction.
91As previously referred to, Mr. Lepp was arraigned on two counts on one Information and six counts on another Information. One of those charges, the allegation that he, on May 14, 2018, wilfully attempted to dissuade Helen Clarke, by threats, from giving evidence in a judicial proceeding, contrary to s. 139(2) of the Criminal Code, was, at the time, a straight indictable offence. The Court did not notice this until October 23, 2019, after the trial had completed but prior to giving a decision. The count was then stayed at the request of the Crown.
92It is the view of this court that Informations should be “cleaned up” at the earliest possible time. Replaced Informations should be withdrawn. When the Crown is aware that they are not proceeding with certain charges on an Information, those charges should be withdrawn at the earliest opportunity. At the very latest, this should be done at the judicial pre-trial stage or trial confirmation hearing. By the morning of trial, it should be absolutely clear what charges are being proceeded on. The Crown has an obligation to ensure that charges are “electable” when they are electing, so that the accused has the opportunity to make appropriate elections, where available, at the earliest possible time. There should be no confusion on the morning of trial what charges are being proceeded on, whether those charges are electable offences, and what is the election of the accused. This should be worked out in advance at the many court appearances that precede a trial.
93Having said that, in my view, there was no prejudice to Mr. Lepp from the inclusion of this indictable charge. There is absolutely no suggestion that Justice Harpur was biased in any way by the inclusion of this charge. In fact, it was Justice Harpur that raised this matter and made sure it was dealt with expeditiously upon realizing it was an issue. There is no reference to facts pertaining to this charge in the reasons for judgement on conviction or sentence. The inclusion of this charge had no effect on the verdict whatsoever.
94While it is unfortunate that this occurred, especially in a trial where the accused was self-represented, in my view there was no prejudice caused to Mr. Lepp.
Other Issues Raised
95As stated above, Mr. Lepp raised a number of other issues such as:
a. The Crown assigned illegal recognizance of bail terms throughout the period of the alleged acts;
b. The volume and frequency of related charges since May 30, 2018 should be indicative of malicious prosecution;
c. There were errors made by Justice Kenkel, the case management judge, including:
i. mixing 7 summary conviction offences with one indictable offence into one trial without a jury;
ii. refusing to order Crown pre-trial meetings to exchange evidence;
iii. making a decision to go to trial without seeing any evidence from the defence.
96Clearly none of these stated grounds are relevant issues for this court to consider.
97Finally, Mr. Lepp did not directly raise a ground of appeal related to the 11(b) ruling. However, the Crown did refer to the 11(b) ruling in their material. This court questioned Mr. Lepp as to whether he was raising this as a ground of appeal, to which he stated that he was not sure if he could challenge this on appeal. Given that this court was not entirely sure whether Mr. Lepp was raising this as a ground of appeal, it will be briefly addressed.
98In his reasons dismissing the 11(b) application, Justice Harpur accepted Mr. Lepp’s position as to the appropriate test to be applied, however, he did not find the time to be unreasonable. Justice Harpur stated that the trial:
involved a self-represented defendant unfamiliar with trial procedure, a trial of seven charges (reduced to six on its next-to-last day), offence dates covering a period of more than one and one half years, multiple complainants and seven days of trial time.
Justice Harpur concluded that the elapsed time of under 16 months did not markedly exceed the time it ought to have taken. It is of note that during the trial, when further dates were needed, there was an occasion that the defence was unavailable for the earliest date offered, given a consideration of Ms. Rivet’s schedule.
99Justice Harpur’s reasons were in accordance with Jordan principles. If this is a ground of appeal, there is no merit.
Conclusion
100As a general point, it is not for this summary conviction appeal court to re-try the case. See R. v. Smits, 2012 ONCA 524, 36 M.V.R. (6th) 217 (C.A.), at para. 67 [citations omitted], citing R. v. Grosse (1996), 1996 6643 (ON CA), 29 O.R. (3d) 785, 107 C.C.C. (3d) 97 (C.A.), at pp. 791-792 [cited to O.R.].
101Mr. Lepp spent a great deal of time providing this court with background narrative and information regarding who he believes is behind these charges and, generally, what he has been through over the last number of years. As this court reminded Mr. Lepp, it is not for this summary conviction appeal court to hear evidence and make its own decision on those facts. The role of this summary conviction appeal court is more limited.
102For all of the foregoing reasons, the appeal against conviction and sentence is dismissed.
V. Christie
Released: April 1, 2021