BL20-🎄CLXXVayeayeCap’n- As SIMPLE as I can make it:

BL20-🎄CLXXVayeayeCap’n- As SIMPLE as I can make it:

J. Rose: I read your blog last night. What did you mean by saying “If there is something I don’t want to happen, I just ask for it and Poof! It’s not done!

J. Dawe:

There was NEVER a legal need for a “not to mention” term ANY TIME, especially NOT one exactly 185 words long.

Rose J. suspended the passing of sentence and placed Mr. Lepp on probation for three years. This probation order includes a term stating that Mr. Lepp is:

“Not to mention, that is speak, write, email, post or mention in any other manner or by any method onsocial media, online media, video, printed blog, online blog, or otherwise mention in any other manner or by any method A, B, C, D in any online media, Except in a court room or on court documents in a courtroom or through a member of the Law Society for purposes of matters before the court.”

While the record before me is not entirely clear, Rose J. appears to have copied the wording of this term from the bail recognizance that was in force against Mr. Lepp in December 2019. Mr. Lepp advised me that this term was first added to his bail in or around May 2019 in place of the earlier version that prohibited him from mentioning the listed names “in any on-line media”. I was not given any information about the circumstances that led up to Mr. Lepp’s release terms being varied in this way.

On December 11, 2019 I varied Mr. Lepp’s bail to delete references to charges and complainants that were no longer before the courts. This resulted in B and C names being removed from the terms of Mr. Lepp’s bail recognizance. However, their names remained in Rose J.’s probation order.

The second count of breaching the terms of probation is based on an allegation that on February 14, 2020, when Mr. Lepp and B were both at the Newmarket courthouse “in regards to a civil matter”, he approached her and spoke to her while the court was not in session, thereby allegedly contravening a term in his probation order that prohibits him from communicating with A, B or C.

Justice of the Peace Premji’s release order named Mr. Lepp’s wife as his surety in an amount of $15,000. The terms of release included a house arrest condition (Term 3) that required Mr. Lepp to remain in his residence at all times except when in the company of his wife or in the event he experienced a medical emergency. It also included non-contact and non- attendance terms in relation to A, B and C (Terms 4 and 5), as well as a term stating that Mr. Lepp is:

“Not to mention, that is speak, write, email, post or mention in any other manner or by any method onsocial media, online media, video, printed blog, online blog, or otherwise mention in any other manner or by any method A, B , C, D, in any online media, EXCEPT in a court room or on court documents in a courtroom or through a member of the Law Society for purposes of matters before the court.”

This latter term, Term 6, is identical to Term 10 of Rose J.’s probation order. Finally, Term 7 of Justice of the Peace Premji’s bail order directed that Mr. Lepp:

 not possess or use any computers or any other device that has access to the Internet or other digital network.”

First, the Crown has already consented to substantial changes to the bail terms that were set by the Justice of the Peace, deleting the house arrest condition entirely and substantially loosening the restrictions on Mr. Lepp’s ability to use computers and the internet. As a result, Mr. Lepp’s current release order can no longer be accurately characterized as reflecting a judicial officer’s â€œdelicate balancing of all the relevant circumstances”.12 Rather, the current terms of Mr. Lepp’s bail have effectively been set by the Crown. Accordingly, in my view, no judicial deference to these terms is warranted.

Indeed, by agreeing to eliminate or relax some of the very stringent restrictions the Justice of the Peace placed on Mr. Lepp’s liberty, the Crown is effectively acknowledging that these restrictions are no longer necessary or appropriate, if they ever were. As I see it, this opens the door to the other terms that were imposed by the Justice ofthe Peace also being judicially reassessed.

There has also been a potentially material change of circumstance, insofar as Justice of the Peace Premji releasedhis decision a week before the courts were shut down in response to

(12 St-Cloud, supra at para. 22.) the COVID-19 public health crisis. As I will explain, the COVID-19 shutdown would have made it necessary for me to reassess the severe restrictions Justice of the Peace Premji placed on Mr. Lepp’s ability to use computers and the internet (Term 7), even if the Crown had not already opened the door to judicial review of this term by agreeing to substantially vary this condition.

As noted above, Term 6 of the current release order provides that Mr. Lepp is:

“Not to mention, that is speak, write, email, post or mention in any other manner or by any method onsocial media, online media, video, printed blog, online blog, or otherwise mention in any other manner or by any method A, B , C, D in any online media, EXCEPT in a court room or on court documents in a courtroom or through a member of the Law Society for purposes of matters before the court.”

[38] In my view, this term is problematic in at least three different respects. First, the wording is opaque and extremely difficult to interpret. In particular, it is far from clear whether the term is meant to only restrict Mr. Lepp’s ability to“mention” the named persons and the business online, or whether the restriction is meant to apply more broadly toall uses of these names by him out of court or outside of court documents. Different aspects of the wording of Term 6 point in different directions. On the one hand, the phrase:

 speak, write, email, post or mention in any other manner or by any method on social media, online media, video, printed blog, online blog, or otherwise mention in any other manner or by any method 
” can be read as modified by the subsequent limiting expression “in any online media”, with the result that the term as a whole only applies to Mr. Lepp’s “mentioning” these names online. However, on this comparatively narrow reading of the term the complexity and breadth of the earlier phrase make little sense, as does the exception permitting Mr. Lepp to “mention” these names â€œin a courtroom or on court documents”. This latter exception would seem to be completely unnecessary if the term as a whole is understood as only applying to Mr. Lepp’s online communications.

[39] The reference to a “printed blog” as something apparently distinct from an “online blog” is also puzzling, since in ordinary usage a “blog” is by definition something that appears online.14

Mr. Lepp advised me that he understands Term 6 to mean that he “cannot say or write the [four] names unless he is in a court room”, and I am unable to say that his broad reading of the term is plainly wrong.

[41] Trotter J.A., one of the leading Canadian authorities on the law of bail, notes extrajudicially in his text The Law of Bail in Canada that “[t]he most important feature of conditions of release is that they must be certain. That is, they must be understandable to the accused.”15 In my view, Term 6 of Mr. Lepp’s bail utterly fails to meet this very basic threshold requirement for any proper bail condition.

A second problem with Term 6 as worded is that it includes A and B’s names, which I specifically ordered on December 11, 2019 should be removed from Mr. Lepp’s bail order because he was no longer facing any charges in which they were the complainants. Crown counsel (Greg Elder) who appeared before me on December 11, 2019 (again, not Mr. Westgate), and who opposed my order removing A and B’s names, also appeared at Mr. Lepp’s March 6, 2020 bail hearing. He presented Justice of the Peace Premji with a draft release order that re-inserted these names, without informing the Justice of the Peace that I had previously deleted them from Mr. Lepp’s previous bail. While it would have been open to Crown counsel to argue to the Justice of the Peace that there had been material changes of circumstance that allowed the Justice of the Peace to depart from my ruling and re-insert these names, he was not entitled to simply ignore my previousorder as he did.

The third and most fundamental problem with the Term 6 condition is that regardless of whether it is interpretedbroadly or narrowly, it is not carefully tailored to advance legitimate bail objectives. In Antic, supra, Wagner J. explained (at para. 67(j)):

Terms of release imposed under s. 515(4) may “only be imposed to the extent that they are necessary” to address concerns related to the statutory criteria for detention and to ensure that the accused can be released. They must not be imposed to change an accused person’s behaviour or to punish an accused person.

In Mr. Lepp’s case, the Crown has relied exclusively on the secondary ground in s. 515(10)(b) of the Criminal Code as a reason to put restrictions on his liberty. This section provides:

10. For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of ( (15 G. Trotter, The Law of Bail in Canada, at §6.5(b)(ii).) 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; 

Accordingly, any bail condition that is imposed on Mr. Lepp must be directed at “the protection or safety of the public” and must be demonstrably necessary to achieve these objectives. Term 6 places sweeping restrictions on Mr. Lepp’s ability to “mention” the complainants’ names, without regard to the content of his communications or to their surrounding context. As discussed above, the extent of these restrictions is unclear, since the Term 6 condition can be understood broadly as applying to all communications that take place outside a courtroom or in court documents, but can also be read more narrowly as applying only to Mr. Lepp’s communications on the internet. On either reading, however, the term captures a vast range of expressive activity that is not likely to cause any identifiable harm to anyone, including the persons named in the order. While protecting these named persons from being harassed by Mr. Lepp would be a legitimate secondary ground objective, a term that bars Mr. Lepp from simply “mentioning” their names in any and all circumstances seems on its face to be somewhat like trying to swat a fly by shooting at it with a blunderbuss. The potential overbreadth remains striking even if Term 6 is interpreted as being limited to Mr. Lepp’s online communications.

In my view, Term 6 could only be found to be “necessary for the protection or safety of the public” if there were some cogent reason for believing that no more carefully crafted restrictions could be devised that would be effective at stopping Mr. Lepp from harassing the complainants.

The evidence before me falls well short of the mark. While Mr. Lepp has been found guilty of one count ofsending â€œharassing telecommunications” to B, this charge was laid in May 2018, at a time when Mr. Lepp does not appear to have been facing any criminal charges or to have been subject to any bail orders. There is no evidence before me that he has ever engaged in any similar conduct after he was charged.16

The record before me also contains no evidence that Mr. Lepp has ever blogged about the complainants in a way that might raise legitimate concerns about their psychological health or personal safety. I recognize that when Rose J. sentenced Mr. Lepp for breaching the earlier version of this bail term, he described Mr. Lepp as having “engaged in a pattern of online postings, which constitute bullying” and declared that the bail term at issue had been imposed “to prevent him from online blogging in a manner which is hurtful and demeaning to A, B, C”. These conclusions may very well have been justified on the evidence that was before Rose J. However, the problem I face is that they are not supported by the record that has been put before me. To the contrary, the only specific

(16 Mr. Lepp was charged with sending harassing emails to B in July 2018, but was acquitted of this charge by Harpur J.)

information I have been given about Mr. Lepp’s blogging and other online activity is that he has “mentioned” the complainants’ names by posting documents from his civil case and other documents relating to the operations of the dog park, and once when responding to a negative “Google review” that attacked him personally. Nothing about the content of these posts as they have been described in the materials before me would appear to raise any secondary ground concerns.

Mr. Westgate argues that since any “mention” by Mr. Lepp of the complainants’ names captured by Term 6 would now also be a breach of the identically-worded term of the probation order imposed by Rose J., 

Term 6 can now be seen as directed towards preventing the commission of further criminal offences under s. 733.1 of the Code (fail to comply with a probation order). I do not accept this argument, for two main reasons. First, probationary terms, unlike terms of a bail order, can properly be crafted “to change an accused person’s behaviour or to punish an accused person”. I do not think the restrictions Antic places on including such terms in a bail order can be circumvented simply by pointing to the presence of a similar term in a probation order. Second, the existence of a â€œsubstantial likelihood that the accused will â€Š commit a criminal offence” is only one of the factors bearing on the key question of whether a bail condition is â€œnecessary for the protection or safety ofthe public”. In my view, conduct by Mr. Lepp that does not in and of itself pose any substantial risk of harm to the complainants or to the public will not give rise to a genuine secondary ground concern merely because it has already been prohibited by the terms of his probation. If Mr. Lepp violates these latter terms he can be charged and prosecuted for the breach whether or not the terms are duplicated in a bail order.

Mr. Westgate submitted further that if I am not satisfied that the Term 6 order as it is currently worded isproperly supportable as a bail condition, I should vary it to make it more closely resemble the term that was included in several of Mr. Lepp’s previous bail orders, which provided that he was:

Not to mention A, B, C, D, in any on-line media.

Mr. Westgate suggests that the wording of the term should be modified to specify that it includes “social media, online media, video, printed blog or online blog”.

While varying Term 6 along these lines would address some of the vagueness concerns that I discussed earlier,17 it would not deal with the more fundamental problem of overbreadth. While I appreciate that the judicial officers who previously barred Mr. Lepp from even “mentioning” the complainants’ names online likely had some reason for taking this approach, I simply do not know what this reason was. I do not know when this term was first added to Mr. Lepp’s bail conditions, who first imposed it, or why he or she did so. Moreover,

17 I remain puzzled by the proposed reference to a “printed blog” as something distinct from an “online blog”.

it is of some potential significance that this term may have been first added to Mr. Lepp’s bail at a time when he was facing much more serious charges than he now faces.18

  1. On the record before me, I am unable to conclude that a bail term with the sweeping reach the Crown proposes is justifiable under Antic as “necessary for the protection or safety of the public”. Moreover, the necessity of such a bail term as a practical matter is made even more questionable by the fact that Mr. Lepp is currently under a probation order that replicates the language of the existing Term 6. Accordingly, striking Term 6 from Mr.Lepp’s bail entirely will have no immediate impact on his permitted online activities. If the charges against Mr.Lepp to which the bail order applies are still before the courts when his probation order expires or is varied or set aside on appeal, this will in my view constitute a material change of circumstance for the purposes of St-Cloud, supra that will allow the prosecution to apply to have the terms of Mr. Lepp’s bail reviewed under s. 521 of the CodeThe Crown can then seek to present a proper evidential record to support its contention that an order prohibiting Mr. Lepp from even “mentioning” the named persons online or elsewhere is necessary for the protection or safety of the public.
  1. Accordingly, I am directing that Term 6 be struck from Mr. Lepp’s release order in its entirety.
Crown Westgate Lost Every Argument

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