COURT FILE NO.: CV-18-594616
DATE: 20210816
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TINA DUNCAN
Plaintiff
– and –
MARNEE BUCKLES AND ROBERT LEPP
Defendants
Gwendolyn L. Adrian, for the Plaintiff
Robert Lepp, for himself
HEARD: June 24 and 25, 2021
R.F. GOLDSTEIN J.
[1] This matter started out as a minor residential dispute over a fence. It has become a completely pointless legal imbroglio that has managed to ensnare several otherwise uninvolved people.
[2] Mr. Lepp and Ms. Buckles made disparaging online statements about Tina Duncan. She sued them both. Mr. Lepp never filed a defence. On May 25, 2020, Justice Favreau granted default judgment in Ms. Duncan’s favour against Mr. Lepp: Duncan v. Buckles and Lepp, 2020 ONSC 3219. Justice Favreau ordered Mr. Lepp to remove all of the online content that he had posted in relation to Ms. Duncan. Justice Favreau also ordered Mr. Lepp to refrain from publishing any further defamatory statements about Ms. Duncan.
[3] Unfortunately, Mr. Lepp did not comply with Justice Favreau’s order. Justice Myers found him in contempt: Duncan v. Buckles and Lepp, 2021 ONSC 1158
[4] Mr. Lepp now come before the court for sentencing.
BACKGROUND
Marnee Buckles And Tina Duncan Have A Dispute Over A Fence
[5] Marnee Buckles and Tina Duncan own adjacent properties in Aurora, Ontario. Ms. Duncan bought her house in 2017. She installed a fence with a gate. The purpose of the fence was to keep her dog in the yard. Ms. Buckles complained that the fence and the gate encroached on her property. Ms. Duncan hired a surveyor and discovered that Ms. Buckles was right about the gate. She moved it. Ms. Buckles still complained that the fence did not comply with the Town of Aurora bylaws. She asked the Town’s bylaw inspectors to examine the fence. They agreed that the fence posts were too high. Ms. Duncan lowered the posts. Ms. Buckles still complained that the fence was illegal. The bylaw inspectors disagreed. They refused to do anything else about the fence.
Marnee Buckles Hires Bob Lepp to “Help”
[6] And there the matter should have ended. After all, it was a fence. It was not a minefield or a crocodile-infested moat. Unfortunately for everyone, Ms. Buckles could not let it rest. She conducted a social media campaign against Ms. Duncan. In January 2018 she also hired Mr. Lepp to “help”.
[7] Mr. Lepp appears to have come to Ms. Buckles’ attention due to an online campaign that he carried out in relation to a dog park. In 2015 or 2016 Mr. Lepp met Helen Clarke, a local dogwalker. Ms. Clarke was part of a community group of volunteers who had agreed with the Town of Aurora to maintain the dog park. Mr. Lepp became involved with the group. Ms. Clarke was the group’s spokesperson but in May 2016 she was diagnosed with cancer. She was unable to carry on with her duties. Mr. Lepp took it upon himself to communicate with the Town and other members of the group. Things began to go wrong. Mr. Lepp’s emails and online posts became more aggressive and persistent. Mr. Lepp began to formulate and disseminate various conspiracy theories involving the Town and various individuals. Ms. Clarke asked Mr. Lepp to stop including her. Eventually she asked him to stop emailing her. She blocked him. He continued to send her emails from a different account. Ms. Clarke complained to the police. So did others. The police charged Mr. Lepp with various offences in relation to harassment. His bail conditions required that he not communicate with Ms. Clarke and others. Mr. Lepp seems to have viewed those bail conditions as optional. He was eventually convicted of one count of communication with intent to harass and two counts of breach of recognizance.
[8] Ms. Buckles apparently noticed what Mr. Lepp was doing in his private war against the Town. She liked what she saw. She wanted some of that for her fence problem. She hired Mr. Lepp.
Marnee Buckles And Bob Lepp Declare An Online War Against Tina Duncan; Tina Duncan Sues
[9] Mr. Lepp’s first act “helping” Ms. Buckles was to start an online petition to have the fence removed. His “help” escalated to an online campaign against Ms. Duncan and others. He asked, rhetorically, “Who does this person know politically that allows her to act this way?” He suggested that she received special treatment from the Town because of an alleged connection to the mayor (she had a sign on her lawn during the election). He accused Ms. Duncan of blocking access to the gas line; he made other claims that were demonstrably false or found to be false by a court.
[10] In February 2018 Ms. Duncan served a libel notice on both Ms. Buckles and Mr. Lepp. The libel notice demanded that both of them remove posted statements. Ms. Buckles, perhaps having had second thoughts about Mr. Lepp’s “help”, did so. Mr. Lepp did not. As Justice Favreau described it, he escalated:
After he was contacted by Ms. Buckles, Mr. Lepp immediately undertook a relentless campaign against Ms. Duncan and her fence. As reviewed above, he implied that she deliberately broke the law, that she misused political connections, that she was a liar and that she was motivated by vindictiveness. After Ms. Duncan gave Mr. Lepp notice under the Libel and Slander Act, he redoubled his campaign. He continued to attack Ms. Duncan and sought to undermine her lawyers. He continued these efforts after the claim was commenced, and even after Ms. Buckles lost her Small Claims Court action and that Court found that the fence was lawful. Mr. Lepp had no personal stake in the situation, yet he took Ms. Buckles's cause on as though it were his own, and maliciously pursued Ms. Duncan. He had no motive other than what appears to be a history of disagreement with the Town's politics. His actions were malicious and completely unfounded.
Marnee Buckles Sues Tina Duncan Over The Fence; Loses Decisively
[11] Ms. Buckles also sued Ms. Duncan in Small Claims Court over the fence. A trial occurred in the Small Claims Court. The Small Claims Court found that the fence was lawful and did not encroach on Ms. Buckles’ property. The Small Claims Court dismissed the action in October 2018.
[12] During the hearing before me, Mr. Lepp spent a considerable amount of time trying to convince me that the fence was illegal – despite my repeated admonitions to him that we were not re-litigating the fence or any of the other issues that have caused Mr. Lepp’s various legal predicaments.
[13] Let me say this about the fence: a court heard evidence and determined that it did not encroach on Ms. Buckles’ property. That is the end of that and, as Justice Myers emphasized, Mr. Lepp needs to let it go. It is not even his fence.
Justice Favreau Finds Bob Lepp Defamed Tina Duncan
[14] In March 2018 Ms. Duncan sued Ms. Buckles and Mr. Lepp. Ms. Buckles filed a statement of defence. Mr. Lepp, as I have mentioned, did not. He was noted in default. He tried to set it aside. That attempt was dismissed by Justice Schabas: Duncan v. Buckles and Lepp, 2019 ONSC 5044. Mr. Lepp initially filed a notice of appeal from Justice Schabas’s judgment. He abandoned that appeal.[^1]
[15] Justice Favreau found that Mr. Lepp had indeed defamed Ms. Duncan. As she stated at para. 40 of her decision:
Cumulatively, the public statements made by Mr. Lepp about Ms. Duncan would negatively impact her reputation:
a. His statements suggested that she intentionally acted unlawfully;
b. His statements suggested that she received preferential treatment from the Town because of an improper political connection;
c. He directly stated that she was a liar; and
d. He used a number of direct derogatory terms such as that she was rude and vindictive.
[16] Mr. Lepp tried to argue that his statements about the fence being unlawful were true. Justice Favreau rejected that argument. She found that the Small Claims Court had already found that the fence was lawful. As well, and significantly, at para. 49 Justice Favreau made the following finding:
I am also satisfied that, if Mr. Lepp had defended the action on the basis of the defence of fair comment, he would not have succeeded in this defence. Mr. Lepp's unrelenting spate of negative comments about Ms. Duncan, the nature of the personal attacks on Ms. Duncan and his persistence in those attacks even after the Small Claims Court found that the fence was lawful demonstrate malice.
[17] Justice Favreau awarded $50,000 in general damages to Ms. Duncan; $10,000 in aggravated damages; and $10,000 in punitive damages. She ordered Mr. Lepp to attend for an examination in aid of execution. Mr. Lepp has not paid anything. Justice Favreau also granted a permanent injunction to Ms. Duncan.
[18] Mr. Lepp appealed Justice Favreau’s decision. He failed to perfect the appeal in a timely manner. He applied to extend the time to perfect. That application was dismissed.
Bob Lepp Breaches The Order; Justice Myers Finds Him In Contempt
[19] In early 2021 Ms. Duncan’s lawyers brought a motion to have Mr. Lepp found in contempt. They alleged that Mr. Lepp had breached Justice Favreau’s injunction. Justice Myers agreed starting at para. 53 of his decision. He found nine separate incidents of contempt. I can do no better than simply quote his findings:
In an email published to a number of people on August 17, 2020, Mr. Lepp repeated his allegation that Ms Duncan had undertaken illegal acts and admitted her lies in Small Claims Court. These were listed as defamatory statements by Favreau J. at paras. 40 (a) and (c) and therefore violate the injunction in para. 67 of her reasons.
In a blog post dated August 30, 2020, Mr. Lepp says that Ms. Duncan admitted to her trespass in Small Claims Court. He said that the Small Claims Court judge "declared the trespass" and that Ms. Duncan continues to "litigate those lies".1F2 Calling Ms. Duncan a liar was listed as a defamatory statement by Favreau J. at para. 40 (c) and therefore violated the injunction in para. 67 of her reasons.
In an email to numerous people dated September 4, 2020, Mr. Lepp said that Ms. Duncan lied and she knew her fence trespassed. In court, he wrote, she admitted that she had lied all along. These were listed as defamatory statements by Favreau J. at paras. 40 (a) and (c) and therefore violated the injunction in para. 67 of her reasons.
I note for good measure that in this email, Mr. Lepp also alleges that Ms. Duncan bought off Schabas J. and her lawyer bought off Favreau J.
In a letter to members of Ms. Adrian's firm dated October 2, 2020, Mr. Lepp stated that Ms. Duncan admitted she lied and that everything in her suit was a lie in the Small Claims Court. He stated that Ms. Duncan was a long-time friend of the Mayor and he is the reason that the fence was not inspected by the town. These were listed as defamatory statements by Favreau J. at paras. 40 (a), (b), and (c) and therefore violated the injunction in para. 67 of her reasons.
In a blogpost date October 16, 2020, Mr. Lepp commented on an article in the Toronto Star about the case written by prominent real estate lawyer Robert Aaron. He said that Ms. Duncan constructed a "spite fence" and knowingly trespassed. These were listed as defamatory statements by Favreau J. at paras. 40 (a) and (d) and therefore violated the injunction in para. 67 of her reasons.\
In an email dated October 16, 2020 to numerous people, including the Toronto Star, he repeated his "spite fence" accusation. Mr. Lepp repeated his accusation that Ms. Duncan knew that her fence was illegal when she built it. These were listed as defamatory statements by Favreau J. at paras. 40 (a) and (d) and therefore violate the injunction in para. 67 of her reasons.
Mr. Lepp sent counsel for Ms. Duncan and others a copy of his email dated November 4, 2020 sent to others that repeats the "spite fence" statement and says that Ms. Duncan "used her friendship of Mayor . . . to get [a bylaw officer] to NOT inspect her fence" [Emphasis in original].
Mr. Lepp also wrote:
Duncan testified in Small Claims she had been lying all along. Adrian ASKED her ion [sic] she lied and she admitted she lied.
This is an example of Mr. Lepp's submission that all he has done is quoted the transcript and commented on it. But this is not a quote from the transcript. Ms. Adrian never asked Ms. Duncan if she lied. Ms. Duncan never admitted she lied. It is all Mr. Lepp's extrapolation to fit his conspiracy theory.
Mr. Lepp's statements in this email were listed as defamatory statements by Favreau J. at paras. 40 (a), (b), (c) and (d) and therefore violated the injunction in para. 67 of her reasons.
In a letter dated November 18, 2020 to lawyers in Ms. Adrian's office, Mr. Lepp repeated twice his allegations that Ms. Duncan acted unlawfully knowingly, she is lying, that the fence was built out of spite, and that she received improper political help due to her friendship with the Mayor. These were listed as defamatory statements by Favreau J. at paras. 40 (a), (b), (c) and (d) and therefore violated the injunction in para. 67 of her reasons.
In a blog post dated December 4, 2020, Mr. Lepp repeats his allegations that Ms. Duncan lied and that she received improper assistance from the town due to her friendship with the Mayor. These were listed as defamatory statements by Favreau J. at paras. 40 (b) and (c) and therefore violated the injunction in para 67 of her reasons.
POSITIONS OF THE PARTIES
[20] Ms. Adrian, for the Plaintiff Tina Duncan, argues that Mr. Lepp engaged in multiple breaches of Justice Favreau’s order. He has displayed a contempt for the orders of this court. This is his third finding of contempt. Fines have done nothing to deter him. He should serve a significant sentence in jail.
[21] I had a very difficult time understanding Mr. Lepp’s position. Indeed, I don’t think he took a coherent position. I urged Mr. Lepp several times to retain counsel to represent him on this sentencing. He did not do so. When it was his turn to make submissions Mr. Lepp claimed, although not strongly, that he had actually purged his contempt. He spent a great deal of time in his oral submissions and in his written material trying to argue – again – that the “spite fence” (as he calls it) is illegal. He also argued that Ms. Adrian and others had conspired to have him wrongfully arrested. Indeed, he claims that he has been the victim of more than one conspiracy. My attempts to focus him on the main issues were for naught. I eventually gave up and just let him speak. At one point, Mr. Lepp told me that I should just send him to jail, and he would take it. At another point he said he should not go to jail because of his health problems.
[22] At yet another point Mr. Lepp argued that he should receive a sentence of time served. In effect, he said that he had done stints in the Lindsay Jail that did not lead to convictions. Accordingly, he should be credited with time served for those offences. I cannot agree with Mr. Lepp on that point. Although I do not have the mathematical calculations before me, I am aware that Justice Harpur of the Ontario Court of Justice credited Mr. Lepp with time served when he imposed suspended sentences on the breach of recognizance charges. More importantly, he was arrested and placed in custody when he was arrested for breaching his bail conditions. His time in custody had nothing to do with this civil contempt matter. He will not be credited for any time served.
ANALYSIS:
[23] The following are the issues on this sentencing proceeding:
• First, did Mr. Lepp make a good-faith attempt to purge the contempt?
• Second, what is are the circumstances of the offender?
• Third, what are the mitigating and aggravating factors?
• Fourth, what is the appropriate sentence to be imposed?
(a) Did Mr. Lepp make a good-faith effort to purge the contempt?
[24] On February 18, 2021, Mr. Lepp filed a motion. The motion set out an apology to Justice Myers as follows:
I am writing to you today to apologize for not following the spirit of J. Favreau’s order of May 2020.
There are no excuses I can make, I simply did not have the right to question what J. Favreau told me to do.
I can only say that this will not happen again since I now know that not only are the specific words in the order to be followed, but that one must also follow the spirit of the order.
I will do better in future if you can forgive me now.
[25] Ms. Adrian argues that Mr. Lepp’s attempt to purge should be given no weight. She argues that it was an attempt at a private, in-chambers apology rather than the fulsome public apology that would be meaningful. Moreover, the attempt to purge was not made in good faith because Mr. Lepp continued to violate Justice Favreau’s order.
[26] I agree in part. I do not have a problem with Mr. Lepp communicating an apology to the court in the form he did. He is not a lawyer (although he now has a great deal of litigation experience) and I do not expect him to know the technicalities of court procedure (many lawyers, even those who purport to practice litigation, do not know the technicalities of court procedure).
[27] That said, I agree that the apology was not sincere. Mr. Lepp has kept right on talking about conspiracies and fences. The day after he filed the motion to purge he sent off emails repeating some of the libels. He even filed material in this proceeding that is arguably in breach of the order. He continued to argue that the fence was illegal, that Ms. Duncan admitted it and lied about it and that Ms. Duncan had leveraged her friendship with the mayor in order to have the by-law inspectors overlook the vast crime of building a fence that encroaches on a neighbour’s property (none of which is true). He argued that his legal troubles are the result of conspiracies hatched by his enemies. These enemies have conspired to have him arrested multiple times. Ms. Adrian is apparently their mouthpiece. At the hearing before me, there was not a hint of contrition or apology.
[28] Mr. Lepp has also failed to make even token payments towards his fines, his costs awards, and his damages awards – other than funds garnisheed from his account – and mocked attempts to collect.
[29] Mr. Lepp has amply demonstrated that he has forgotten nothing and learned nothing. I find that the attempt to purge is not genuine and it is not a mitigating factor.
(b) What are the personal circumstances of the offender?
[30] Mr. Lepp is 72 years old. He is a retired IT technician. He claims he lives off of a small pension. He also says that he is in the midst of a divorce. He claims that he suffers from a variety of ailments. He needs a CPAP machine to sleep at night. He claims he takes medication for high blood pressure, his prostrate, and gout. I told Mr. Lepp it would be useful if he provided documentation to the court about his health. Ms. Adrian also suggested that he ought to file material about his health – which drew a sharp rejoinder in writing from Mr. Lepp that he didn’t need to and didn’t appreciate Ms. Adrian’s advice. Although Mr. Lepp took the opportunity to file reams of material – including a 207-page annotated reply that was a rehash of the fence litigation, his grievances, and his conspiracies – he did not file any serious material about his health or his financial position.
[31] I must also point out that the 207-page annotated reply repeated several of the defamatory statements that got Mr. Lepp here in the first place.
(c) What are the mitigating and aggravating factors?
[32] Over the course the last few years Mr. Lepp has managed to accumulate civil contempt findings and criminal convictions. I find this to be a very aggravating factor.
[33] Mr. Lepp’s obsessions have led him to sue the Town of Aurora, a partner in the law firm representing Ms. Duncan, and others. On March 28, 2019 Justice DeSa ordered that Mr. Lepp not have communications with several defendants in a lawsuit against the Town of Aurora. Mr. Lepp did so anyway. Justice DiLuca offered Mr. Lepp the opportunity to apologize and purge his contempt. Much like in this case, Mr. Lepp made insincere “efforts” to do so. Justice DiLuca found him to be in contempt but found that a jail sentence was inappropriate. On September 16, 2019 he ordered Mr. Lepp to pay a fine. Mr. Lepp has not actually paid it.
[34] Nothing in Mr. Lepp’s behaviour since Justice DiLuca’s decision leads me to think that he has learned his lesson. Indeed, I rather suspect that Mr. Lepp viewed a fine as a penalty of no consequence, since he carried on as if nothing had happened. I find that to be aggravating as well.
[35] Moreover, on February 14, 2020 Justice Edwards of this court found Mr. Lepp to be contempt once again. Despite clear admonitions that Mr. Lepp not write to various judges of this court and the Ontario Court of Justice, Mr. Lepp continued to do so. Again, this is an aggravating factor.
[36] On December 6, 2019 Justice Harpur found Mr. Lepp guilty of one count of communication with intent to harass and two counts of breach of recognizance. These were charges in relation to Ms. Clarke, the dog park volunteer who suffered from cancer. Justice Harpur sentenced Mr. Lepp to a 60-day conditional sentence and 24 months of probation on the harassment count. On each of the two breach counts he sentenced Mr. Lepp to a suspended sentence and 24 months of probation. The convictions were upheld by Justice Christie of this court. This entire course of conduct, and the criminal convictions, are aggravating factors.
[37] In December 2019, Justice Rose of the Ontario Court of Justice convicted Mr. Lepp of one count of breaching a recognizance. Mr. Lepp was placed on probation. A short time later he was arrested for breaching the probation. He pleaded guilty before Justice Henschell of the Ontario Court of Justice. Mr. Lepp successfully appealed the breach of recognizance conviction, but the breach of probation conviction was upheld by Justice Dawe of this court.
[38] Thus, Mr. Lepp comes before this court as a prior offender, both criminally and civilly.
[39] Mitigating factors in this case are difficult to find. Mr. Lepp’s health is one. As I said, Mr. Lepp claims that he suffers from a variety of ailments. He needs a CPAP machine to sleep at night. He claims he takes medication for high blood pressure, his prostrate, and gout. As I also mentioned, I told Mr. Lepp it would be useful if he provided documentation to the court about his health. He did not do so.
[40] I do take into account Mr. Lepp’s health issues even though he filed no material to back it up. I believe he has some health issues, simply because he is 72 years old and is overweight – a recipe for high blood pressure and other ailments. What Mr. Lepp fails to understand, however, is that without some kind of specifics or some kind of medical evaluation I have no idea how custody – especially given the Covid-19 pandemic – would impact on him. Moreover, even though I do not wish to convert a mitigating factor into an aggravating factor his refusal to provide documentation is yet another example of Mr. Lepp’s contempt for the court’s process.
[41] In any event, a contemnor (or an accused person) does not get a “get out of jail free” card by pointing to his health. Every case is fact-specific and health is just one factor to be weighed. As Charron J.A. (as she then was) noted in R. v. Shanawaz (2000), 2000 CanLII 16973 (ON CA), 149 C.C.C. (3d) 97 (Ont.C.A.) at para. 35: “The court must not lose sight of the fact, however, that it is difficult to predict Mr. Shahnawaz's future condition and that the state of any prisoner's health while in custody is largely a matter for the correctional authorities.”
(d) What is the appropriate sentence to be imposed?
[42] Rule 60.011(5) regulates the punishment that a court may impose in a contempt matter:
(5) In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,
(a) be imprisoned for such period and on such terms as are just;
(b) be imprisoned if the person fails to comply with a term of the order;
(c) pay a fine;
(d) do or refrain from doing an act;
(e) pay such costs as are just; and
(f) comply with any other order that the judge considers necessary,
[43] Contempt of court may be civil or criminal. Civil contempt usually involves an underlying failure to comply with a court order in private litigation. Criminal contempt usually involves “some deprecation of the court’s authority.” The distinction is not always clear-cut, as even failure to follow a court order in private litigation invariably reflects “public disrespect for the authority of the court”: Chiang v. Chiang, 2009 ONCA 3 at paras. 9 and 10.
[44] The whole point of punishing a contemnor is to maintain the rule of law: United Nurses of Alberta v. Alberta, 1992 CanLII 99 (SCC), 1992 1 S.C.R. 901 at p. 931. As Justice Watt put it in College of Optometrists of Ontario v. SHS Optical, 2008 ONCA 685 at para. 106: “The underlying purpose of contempt orders is to compel obedience and punish disobedience.” In Astley v. Verdun, 2013 ONSC 6734 (affirmed 2014 ONCA 668) at para. 16 I attempted to summarize the principles of sentencing in contempt cases:
• A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1; Chiang, para. 86; Mercedes-Benz Financial v. Kovacevic, 2009 CanLII 9423 (ON SC), 308 D.L.R. (4th) 562, 74 C.P.C. (6th) 326 (Ont. S.C.J.) at para. 12.
• A sentence should be increased or reduced to account for aggravating or mitigating factors surrounding the contempt or the contemnor: Criminal Code, s. 718.2(a); Chiang, para. 24; Sussex Group Ltd. v. Fangeat, [2003] O.J. No. 3348, 42 C.P.C. (5th) 274 (Ont. S.C.J.) at para. 67.
• A sentence should be similar to sentences imposed on similar contemnors for similar contempts committed in similar circumstances: Criminal Code, s. 718.2(b); Chiang, para. 24.
• Sentences should denounce unlawful conduct, promote a sense of responsibility in the contemnor, and deter the contemnor and others from defying court orders: Criminal Code, s. 718; Sussex Group Ltd. at para. 67; Chiang at para. 24.
• The Court should consider sanctions other than jail: Criminal Code, s. 718(2) (d) and (e); Sussex Group Ltd. v. Sylvester, 2002 CanLII 27188 (ON SC), [2002] O.J. No. 4350, 62 O.R. (3d) 123 (Ont. S.C.J. [Commercial List]) at paras. 80-82.
[45] When I consider the principles of sentencing, I find that there are strong aggravating factors in this case. Mr. Lepp has continually violated civil court orders and bail conditions. He violated a probation order before the ink was even dry on it. He has been convicted of communicating with intent to harass. He has failed to pay fines, costs awards, and damages.
[46] When I consider whether a sanction other than jail should be imposed, I find that a fine or conditional sentence would have no effect. Fines, damages, and costs awards, which he does not pay, appear to mean nothing to him. The only payment he has made is a $4000 payment that was garnisheed from his bank account. He has mocked attempts to make him pay. He claims to be impecunious and yet stonewalls queries from the plaintiff that would validate his claims. There is no point in imposing a sanction other than jail because Mr. Lepp would not take it seriously.
[47] General deterrence is always a principle of sentencing in contempt cases. General deterrence is important here, but the principle of specific deterrence is very important in this case as well.
[48] When I weigh all of the sentencing principles, including the principle of proportionality and the aggravating and mitigating factors, I find that a jail sentence is appropriate to punish Mr. Lepp’s continued violations of court orders and make him understand that compliance is not optional. Mr. Lepp will serve 21 days. I would have imposed a higher sentence, but for two reasons: first there is no earned remission in contempt matters – in other words, Mr. Lepp will serve the full 21 days and there is no parole in this scenario; and second, I accept that Mr. Lepp has health issues.
DISPOSITION:
[49] Mr. Lepp is sentenced to 21 days in custody. He is to surrender into custody no later than 4:00 pm on Tuesday, August 17, 2021 at the Toronto Courthouse, 361 University Avenue, at the University Avenue entrance.
[50] I decline to make any order at this point compelling Mr. Lepp to re-attend for an examination, without prejudice to the plaintiff to bring a fresh motion if he fails after service of a notice. It is my hope that after a spell in custody Mr. Lepp will see that it is better to cooperate voluntarily rather than be compelled yet again to appear for an examination and risk a further period of incarceration for breaching court orders.
COSTS:
[51] Although I have little confidence that Mr. Lepp will pay a costs award, it seems to me that Ms. Duncan is entitled to make an argument in favour of costs; Mr. Lepp is, of course, entitled to make an argument opposing a costs award.
[52] Counsel for Ms. Duncan will submit a costs outline and submissions of no more than two pages within 30 days of the date of this judgment. Mr. Lepp may respond with a costs outline and submissions of no more than two pages within 30 days of receiving Ms. Duncan’s costs outline and submissions. I remind the parties, and especially Mr. Lepp, that at para. 94 of his judgment Justice Myers reserved the costs of the contempt motion to be part of the sentencing proceeding.
Released: August 16, 2021
COURT FILE NO.: CV-18-594616
DATE: 20210816
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TINA DUNCAN
Plaintiff
– and –
MARNEE BUCKLES AND ROBERT LEPP
Defendants
REASONS FOR JUDGMENT
R.F. Goldstein J.
[^1]: Interestingly, Mr. Lepp suggested that the judge deciding his motion to set aside the noting in default knew nothing about libel law. Mr. Lepp was unaware that Justice Schabas is one of Canada’s leading authorities in the area of libel and slander.