Court File and Parties

COURT FILE NO.: CV-19-00618097-0000 DATE: 20210907

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: XINSHENG ZHONG, Plaintiff and Moving Party AND: JIAN WU, Defendant and Responding Party

BEFORE: S.F. Dunphy J.

COUNSEL: Pandora Du, for the Plaintiff moving party Jian Wu, acting in person

HEARD at Toronto: August 10, 13, 25 and September 7, 2021

REASONS FOR DECISION – Contempt and Sanction

[1] The plaintiff has brought a motion for contempt against the defendant Mr. Jian Wu. In light of the nature of the allegations and the irreparable harm said to arise therefrom, the plaintiff seeks to have the defendant committed to jail as the primary sanction claimed.

[2] At the close of the first phase of the hearing, I issued brief oral reasons finding that the plaintiff had discharged its burden of proving to the high standard of beyond a reasonable doubt that Mr. Wu had breached the order of Penny J. dated December 9, 2009 prohibiting him from making defamatory remarks regarding the plaintiff and had done so intentionally and on numerous occasions notwithstanding repeated warnings, including two rather explicit warnings from two separate judges. As I indicated at the time, I would be expanding upon the reasons for my conclusions in writing afterwards. These are those expanded reasons.

[3] Following the first phase, I heard submissions from the parties regarding the appropriate sanction to be applied. For the reasons that follow, I have decided to afford Mr. Wu an opportunity to purge his contempt and to take steps towards repairing the harm that his conduct has wrought. Incarceration – which must always remain a last and not a first resort in matters of civil contempt – is a blunt tool that Mr. Wu’s demonstrated change of heart persuades me is unnecessary.

Background facts

(i) Procedural Background

[4] This case began as an action brought by the plaintiff in respect of certain comments posted on-line in “WeChat” public forums by Mr. Wu that were alleged to be defamatory of the plaintiff. WeChat is a Chinese social media platform that is heavily used by members of the Chinese community in Canada and elsewhere. The plaintiff, Mr. Zhong, is a well-known member of the Chinese community in the Toronto area.

[5] Mr. Wu initially retained counsel to defend himself. With the assistance of counsel, a consent interim injunction was negotiated. The consent order of May 16, 2020 required him to cease publishing libelous information about the plaintiff on WeChat or elsewhere, to remove the messages already posted and to post a copy of the consent order in every WeChat group where he had posted the messages in question.

[6] Shortly after this consent order was entered, Mr. Wu decided to represent himself. He prepared and filed his own short statement of defence that admitted certain facts, failed to deny others and pleaded no facts necessary to establish a positive defence. A summary judgment motion was soon brought based upon the pleadings.

[7] On December 2, 2019, Penny J. granted the motion for judgment and issued detailed reasons (2019 ONSC 7088). A transcript of that hearing was made part of the record in this proceeding to which I shall return. Specific findings of fact were made in relation to identified defamatory statements. General damages in the amount of $35,000 and full indemnity costs of $15,414.90 were awarded to the plaintiff. Of particular relevance to this case is that Penny J. also granted a permanent injunction by reason of the prior refusals of the defendant to take down the defamatory posts and his continuing refusal to issue an apology.

[8] There are certain parallels between the hearing before Penny J. and the hearing as it proceeded before me. On both occasions, Mr. Wu declined to file any evidence in support of his position prior to the motion although requested to do so. On both occasions Mr. Wu brought various documents and papers to the hearing that he said would prove the truth of some or all of the statements he had made in his internet posts. On both occasions, Mr. Wu’s ascribed his reason for involving himself in making public comments regarding the plaintiff to his belief, acquired in the beginning of 2015, that the plaintiff had engaged in corrupt dealings involving the Queen’s Jubilee medal. He advised the court on both occasions that he had no prior dealings with Mr. Zhong and had never met him. Indeed, Mr. Wu’s statement of defence in the underlying action states that he “has not known the plaintiff Mr. Xinsheng Zhong so far” during Mr. Wu’s twenty years in Canada and that he has “expressed some doubts about the plaintiff … only for the purpose of safeguarding the public interest”. Mr. Wu’s statements at this hearing similarly claimed an altruistic purpose underlying his numerous on-line published comments regarding the plaintiff and the question of the Queen’s medal continues to lie at the root of his expressed concerns.

[9] Needless to say, there is a public interest in exposing and rooting out corruption. There is no public interest in making evidence-free allegations of corruption that are highly damaging to the reputation of a person and implicitly requiring the victim to attempt the almost impossible task of proving a negative fact at great expense.

[10] The permanent injunction issued by Penny J. reads as follows:

The defendant shall, therefore, be permanently prohibited from publishing defamatory statements regarding Mr. Zhong, on the Internet or by any other means.

[11] The decision containing this injunction contained a discussion of statements previously made by Mr. Wu that were found to be defamatory. While the written reasons are fairly summary in their description of the defamatory statements, the context of the findings made is readily apparent from the transcript of the proceedings before Penny J.

[12] Penny J. reached the following conclusion regarding the defamatory nature of the pleaded published comments at paragraph 18 of his reasons:

Here, many of the words complained of are, on their face, defamatory. This includes the allegations of fraud, embezzlement, bribery, corruption, sexual assault and being a sexual predator. Other statements take their defamatory sting from the context. These include allegations that Mr. Zhong owns many luxury homes and cars and that he is womanizer, has strong sexual urges and is promiscuous. These allegations feed off, and feed, the allegations of financial and sexual misconduct. I have no hesitation in concluding that the words complained of are defamatory.

[13] There is no allegation in the present motion that the defendant has repeated any of the allegations found to be defamatory by Penny J. in relation to Mr. Zhong’s private life and there is accordingly no need to repeat the findings made by him here. However, the summary findings made by Penny J. regarding allegations of “fraud, embezzlement, bribery [and] corruption” require the context of the particulars of the allegations in the statement of claim and the transcript of the hearing in order to identify which statements were being so-described. Mr. Wu admitted being aware of the allegations in the statement of claim and was an active participant in the hearing before Penny J. There can be no question that he fully understood the context in which the order of Penny J. was made.

[14] Allegations in relation to receipt of kickbacks in relation to a Chinese cultural centre were made at paragraph 10(k) of the statement of claim and in relation to misuse or embezzlement of Canadian federal, provincial or municipal government funds at paragraphs 10(m), (p), (q) and (u) and paragraph 16(b) of the Statement of Claim. In the course of his oral submissions, the first matter addressed by Mr. Wu was the matter of the Queen’s Jubilee medal received by Mr. Zhong. He volunteered that he had a list “of over 20 names of people who have paid the money and bought these medals” and claimed that the proceeds of the sale of the medals was used by Mr. Zhong to purchase the Cultural Centre. He further admitted that all of his information on these topics came from other people none of whom provided sworn evidence in support of the claims. Mr. Wu made repeated references to the matter of the alleged sale of Queen’s medals to the point that Penny J. told him that he was repeating himself.

[15] I have referenced the Queen’s medal allegations in particular and general allegations of corruption in obtaining or using government funds at the time of the December 2019 hearing because a central allegation in this case is whether Mr. Wu has repeated these same allegations already ruled upon by Penny J. and made the object of his permanent injunction.

[16] Mr. Wu sought to appeal the decision of Penny J. to the Divisional Court on a variety of grounds. Several case management appearances before Favreau J. (June, July and September 20202) preceded the hearing of the appeal. On December 14, 2020, Favreau J. dismissed the plaintiff’s motion to quash the appeal for lack of merit but allowed the plaintiff’s motion for security for costs of the appeal (2020 ONSC 7763). In so ordering, she found that the appeal appeared to be frivolous, that it appeared motivated by Mr. Wu’s animus against the plaintiff and that Mr. Wu appeared to have no readily identifiable assets in Ontario to satisfy an order for costs. He was ordered to post $20,000 as security for costs of the appeal and to pay the plaintiff’s costs of the motion fixed in the amount of $7,500.

[17] During the case management appearances, Mr. Wu was given additional time to file responding material but he filed none. Favreau J. also noted evidence that indicated possible on-going breaches of Penny J.’s injunction and she warned Mr. Wu in her July 20, 2020 endorsement of his obligation to respect the injunction notwithstanding his appeal. She recorded Mr. Wu’s undertaking given at that time to respect the injunction in her endorsement.

[18] Mr. Wu failed to post the security for costs ordered. A motion was brought to have his appeal dismissed in consequence. This motion came before Favreau J. on March 17, 2021 (2021 ONSC 2008). Favreau J. granted the motion and dismissed Mr. Wu’s appeal making a further award of $4,000 in costs. She also issued a warning to Mr. Wu regarding the evidence of continuing violations of the injunction of Penny J., noting that his “continued violation of the injunction order certainly appears to warrant contempt proceedings in the future”.

[19] The plaintiff commenced this contempt motion shortly thereafter. The parties appeared at Civil Practice Court for scheduling purposes on March 31, 2021 and Myers J. ordered the convening of a case conference to understand the issues more clearly. The conference was held on April 9, 2021 before Myers J. On both occasions, Myers J.’s endorsement indicates that he carefully explained to Mr. Wu the urgent need for him to be represented by a lawyer, the seriousness of the matter and the potential for the proceeding to result in a fine or a jail term. Mr. Wu had the benefit of an interpreter at this case conference.

[20] Myers J. set the matter down for a hearing on August 10, 2021. He made additional orders concerning the conduct of the hearing including a requirement that Mr. Wu file all written evidence on which he intended to rely by May 7, 2021 and to provide to Ms. Du a list of any witnesses he intended to call at the hearing. A written factum was to have been filed by Mr. Wu by July 30, 2021.

[21] Mr. Wu filed no written evidence nor did he provide a list of witnesses to the plaintiff’s counsel at any time prior to the hearing of this motion. He filed no written factum either. Myers J. also granted leave to Mr. Wu to testify at the hearing of the motion if he chose to do so or to cross-examine the plaintiff’s affiants.

[22] This hearing began as scheduled on August 10, 2021 and was adjourned by me to August 13, 2021 at Mr. Wu’s request as a result of side effects he was experiencing from the COVID vaccine he received on August 7, 2021. This adjournment was granted over the plaintiff’s objections given the failure of the defendant to have made arrangements to receive the vaccine until three days before the long-scheduled hearing and to his accurate advance foretelling of his inability to attend the hearing made prior to receiving the vaccine in an email sent to the trial office on August 2, 2021.

[23] I am setting forth certain comments of Myers J. from that case conference endorsement of April 9, 2021 that are of relevance to this case. Mr Wu had made essentially the same arguments before me as he did during the case conference before Myers J. and the explanations he received from Myers J. regarding those defences are relevant here in relation to his state of mind and knowledge of the breaches alleged on this motion:

At Civil Practice Court and again today, Mr. Wu advised that in his view he has not violated the injunction granted by Penny J. because he can prove that the things that he has written are true. The witnesses that he intends to call, he says, will prove that Mr. Zhong has sold Jubilee Medals as he has alleged. Plus, he says, that he has only dealt with Mr. Zhong’s public acts rather than any private dealings. He also says that the Charter of Rights allows him to fulfill his duty to expose criminality.

I reiterated to Mr. Zhong, through his interpreter, that he desperately needs a lawyer.

Justice Penny has already rejected a Charter defence in paragraph 25 of his reasons.

Mr. Wu needs to understand that the contempt proceeding is not likely to be a re-trial of whether things listed in para. 18 above are defamatory. Justice Penny already found that they are and Mr. Wu’s appeal has been dismissed. Further, as I said in my CPC endorsement, I am unaware of any law that allows a defendant to avoid an injunction by trying to distinguish between a plaintiff’s public and private capacities.

[24] None of the damages or costs orders have been paid as of the present time. A total of $26,914.90 in costs alone have been awarded against Mr. Wu to this point, a statement from which I may reasonably infer that the plaintiff’s out of pocket costs in responding to the defamatory posts made by Mr. Wu in the past have been not less than that amount and are likely materially higher. This figure excludes the general damages awarded by Penny J. ($35,000) and the costs of responding to the alleged on-going campaign of defamation which is the subject of this motion.

(ii) Post-2019 Internet Posts by Mr. Wu

[25] Mr. Wu has shown little sign of letting up in his one-man campaign to alert the public to what he claims are the corrupt dealings of the plaintiff. His on-line posts have been frequent. The following is a summary of some of them[^1], all taken from public WeChat internet posts that Mr. Wu has admitted being the author of:

a. Posts in 2020

i. May 8, 2020: “Simon Zhong, come and out and walk two steps. Now I officially give you warning, you must tell the truth what means you used to sell British Queen’s medals. Now you have been caught red-handed by me, there are 20 something medal buyers (witnesses) and … the British Royal Family and RCMP want to know”.

ii. May 18, 2020: “Simon Zhong…you could make all kinds of pretexts and brazenly sell British Queen’s medals without restraint .… Can you stand the investigation of RCMP and CRA? Dare you conceal when the RCMP asks you to confess how many people you sold to? I have a list of names in my hands, there are close to 30 people … in case tax authority asks you if you issued fake proof in collusion with others to cheat and illegally exchange for tax exemption, tax evasion and fraud, would your accountant forge tax records and conceal the truth for you?... Quickly all Canadians will know who you are and what you did”.

iii. May 28, 2020: “there are some big news. Simon Zhong was sued by City of Toronto in court and the Revenue Agency for suspected tax issue. Regarding detailed contents, I will announce tomorrow in this group”.

iv. May 29, 2020: “He was caught red handed on selling British Queen’s medals. I went to police station to report the case before, but police refused to accept the case because not direct victim. But once facts are determined in court, then can’t get away by using so call defamation. This is genuine criminal offence!”

v. May 29, 2020: “Simon Zhong … you take away large amount of funding from three levels of government with many excuses every year and what did you do in the end? It was said these moneys are over one million each year. Why are you reluctant to file tax?”

vi. July 2, 2020: “I will publish the evidence of Simon Zhong’s selling Queen’s medals and nearly 30 suspect buyers name list at appropriate time … there is someone (direct victim) who already officially testified. You should clarify this because this is a serious criminal offense”.

vii. November 26, 2020: “collusion with government and frantically selling and distribution in large numbers close to 30 Queen’s Medals with organized plan and in-depth purpose is serious criminal fraud in times from ancient to current … this shameless act makes people disgusting [sic] just like seeing Simon Zhong”. This last comment post-dated the admonitions given to Mr. Zhong by Favreau J. in July 2020 and his express undertaking to respect the injunction of Penny J.

b. Posts in 2021

i. January 11, 2021: “Xhinsheng Zhong, I am naming your name publicly again, why don’t you go to court and sue? You are definitely feeling guilty conscience”.

ii. January 31, 2021: “What you should think more about is confess how you lived your past good days to the government, the community the tax authority and the RCMP. You are welcome to submit motion to the court telling the court again that I am using your selling Queen’s medals to molest you”.

iii. February 15, 2021: Mr. Wu wrote an open letter written by him to the Canadian Minister of Justice among others repeating allegations regarding the alleged sale of the Queen’s medal by Mr. Zhong. Copies of this letter were sent to various media outlets and subsequently published by him on WeChat.

iv. April 19, 2021: “the core part of my case is to uncover the lid of peddling Queen’s medals … I possibly will request the court to summon all the witnesses who paid money to purchase medals”. Once again, this last comment post-dated his appearance before Myers J on April 9, 2021.

[26] The Supplementary Motion Record contains further posts of a similar nature posted in May and June 2021 after this motion was scheduled. Mr. Wu returned to the subject of Mr. Zhong’s alleged corrupt actions in peddling the Queen’s medals several times in each of May and June 2021.

[27] During the same time frame, Mr. Wu’s public posts made repeated references to the various appearances he was making in court (whether in relation to his appeal or this contempt motion). Such references contain information relevant to his state of knowledge and intentions in continuing to publish statements about Mr. Zhong:

a. Posts in 2020:

i. May 22, 2020: Ms. Du sent cease and desist warning letter to Mr. Wu. Mr. Wu made public reference to receipt of the letter the same day on WeChat: “Simon Zhong, I questioned if a pig pretending to be dead is afraid of boiling water, and are you irritated again? Your lawyer Heng Du wrote me letter again”.

ii. July 2, 2020: “[the scheduled case conference with Favreau J.] is around the corner. I will also publish your different reasons and practices of attempts to stop my appeal … you can ask Miss Du to continue to use this paragraph of wording as the evidence of my contempt of court”.

iii. August 23, 2020: Four weeks after giving Favreau J. an undertaking to abide by the injunction of Penny J., Mr. Wu wrote a letter to plaintiff’s counsel that he posted on-line the same day. The letter described the pending court case as “involving collusion with the government, blatant peddling and scalping of the Jubilee Medal, an emblem of Canada’s national honour, embezzlement of public funds, tax evasion and criminal fraud in unprecedented and unheard of at all times and in all over the world … I only engage in open conspiracy, forcing Xinsheng Zhong into suing me is just a more convenient way to expose the truth, as soon as the law suit is commenced the paper can no longer contain the fire”.

b. Posts in 2021:

i. May 26, 2021: “Does everyone know how I completed the appeal application? Similarly, I can also complete the process to summon witness… I will declare to the judge that I have a list with close to 30 peoples. The persons in the list all had to pay for order the Queen’s medals. I will publish these peoples in the group at the necessary time”.

ii. May 26, 2021: “Someone assumes I will be afraid of jail time” (May 26, 2021)

iii. May 26, 2021: “[I will] have to send the affidavit drafted by Miller Thomson law firm for me on May 7th this year to the court which wants to send me to jail … attention everyone, every word in the affidavit is legally binding. The witnesses and testimonies mentioned all have legal bases. In necessary situations, the witness must attend the court and give testimony, even the persons mentioned in the testimony … very soon I am going to write to British Queen, at the same time write letter to tax authority according to the clues of the medal peddling”.

iv. June 27, 2021: Mr. Wu wrote “if Ontario Superior Court of Justice can’t clarify to the public about the peddling queen’s medals, I will adopt my method to let the whole society to participate and given an explanation to Superior Court of Justice!”.

(iii) Evidence of Mr. Wu

[28] Mr. Wu elected to testify on this motion. Prior to allowing him to do so, I ensured that he fully understood that he was entitled to remain silent, was not required to testify and that if he did testify, he would be subject to cross-examination. Mr. Wu indicated quite firmly that he wished to testify.

[29] In the course of his examination, Mr. Wu did not hesitate to confirm that he was the author of each of the various communications attributed to him by the plaintiff in its motion. He took some general objections to the quality of the translations of his various posts produced without specifics. He did not however disavow any of them. Mr. Wu denied any intention to breach Justice Penny’s order, noting his careful avoidance of repeating any of the defamatory allegations in relation to Mr. Zhong’s personal life although he continued to maintain his ability to prove them. He said that the matters he discussed publicly were matters of importance to his community and proclaimed his right to maintain his doubts and suspicions in relation to Mr. Zhong. He steadfastly maintained his belief that Mr. Zhong had peddled the Queen’s medal for personal gain and had misappropriated money received from the government. He noted his lack of personal links to Mr. Zhong as evidence of the objective nature of his conclusions. He proclaimed his willingness to sacrifice himself to defend the image of the Chinese community and to save Canadian society and sought to invoke the Charter of Rights in his defence.

[30] In short, Mr. Wu doubled down on virtually all of his public statements since the injunction was issued. He maintained his ability to prove all of his allegations and yet conceded that he had no direct evidence of his own to offer in relation to any of them. He had no personal dealings with Mr. Zhong and with a minor exception had never met him or spoken with him. His own lack of evidence was not supplemented by evidence from others. He admitted that he had brought no witnesses with first-hand information to testify about them. He waved sheaves of paper in his hands that he claimed proved his allegations but produced no sworn direct evidence of anything relevant. He was able to prove none of his allegations whether or not these were res judicata by reason of prior findings of Penny J.

(iv) Evidence of Mr. Zhong

[31] Although Myers J. had granted Mr. Wu leave to cross-examine the plaintiff on his affidavit at the scheduling conference on April 9, 2021, that fact did not come to my attention during the course of the hearing on August 13, 2021 until after the plaintiff had completed its case and Mr. Wu had completed his own testimony. I asked Mr. Wu if it had been his intention to cross-examine Mr. Zhong. He confirmed that it was and that he still wished to do so. Although somewhat out of sequence, I granted him leave to cross-examine Mr. Zhong following completion of his own cross-examination. This occurred at the continuation of the hearing on August 25, 2021.

[32] Mr. Wu’s cross-examination focused almost exclusively upon allegations dating from 2013 regarding the awarding of the Queen’s Jubilee Medal to members of Toronto’s Chinese community. Mr. Zhong was repeatedly asked whether he had sold any Queen’s medals. He emphatically denied having done so. While the Cultural Centre of which he was an executive director had nominated certain individuals for this honour to the Governor General, this work was done by a committee. He himself was not on the committee nor privy to its internal workings. While fiercely challenged by Mr. Wu, this evidence was uncontradicted and I have no basis whatsoever to doubt it.

[33] Mr. Wu produced a variety of community newspaper articles as proof of his allegations. Mr. Zhong was unaware of some of them and had no information about the sources used by them. At least some of the articles appeared to be reporting on allegations made by Mr. Wu himself. None of them contained admissible evidence of any relevant fact.

Issues to be determined

[34] A convenient summary of the required elements of proof to establish civil contempt can be found in the case of Carey v. Laiken, 2015 SCC 17, [2015] 2 SCR 79 (at paras. 31-35) where the Supreme Court confirmed that proof beyond a reasonable doubt of (i) an intentional act or omission; (ii) that is in breach of a clear order; and (ii) that the alleged contemnor has notice of the order. The intent of the alleged contemnor is relevant to the matter of penalty but not to liability.

[35] Accordingly, the following are the issues that I must determine:

a. Has the plaintiff proved beyond a reasonable doubt that defendant has intentionally published the statements attributed to him that are alleged to be defamatory?

b. If so, did any or all of such statements breach a clear order of the court?

c. If so, did the defendant have notice of such order?

d. If so, what penalty or sanction is appropriate in the circumstances proved?

Analysis and discussion

(a) Has the plaintiff proved beyond a reasonable doubt that defendant has intentionally published the statements attributed to him that are alleged to be defamatory?

[36] I am satisfied that the plaintiff has proved beyond a reasonable doubt that Mr. Wu is the author of each of the WeChat posts in 2020 and 2021 referencing Mr. Zhong (directly or in context) contained in the affidavit of Mr. Zhong sworn April 21, 2021 and July 15, 2021 authored by WeChat account user “Jian Wu”. Penny J. found Mr. Wu to be the author of messages posted by the same user “Jian Wu” on WeChat in his decision of December 9, 2019. The same user frequently referenced details known to Mr. Wu personally such as the contents of letters sent to him by the plaintiff’s counsel (posted on line by the same user, often on the same day) or the various court appearances of Mr. Wu. Mr. Wu readily acknowledged his authorship of each of the posts ascribed to him by Mr. Zhong’s email, disputing only the accuracy of the translations of them (but offering no details of the alleged inaccuracies in the translations). In acknowledging his authorship of these posts, he also explained in detail his reasons for making the posts.

[37] There can be no doubt that the posts ascribed to Mr. Wu by the plaintiff in his two sworn affidavits filed in connection with this motion were published by the defendant Mr. Wu and that such publication by him was deliberate and intentional.

(b) If so, did any or all of such statements breach a clear order of the court?

[38] I am also satisfied that the plaintiff has proved beyond a reasonable doubt that substantially all of the subject WeChat posts authored by Mr. Wu breached the clear terms of the order of Penny J. dated December 9, 2019.

[39] My summary of those statements above is sufficient to explain my conclusion that the statements complained of were defamatory. Some accused Mr. Zhong directly of criminal behaviour, others accused him of corruption and ethical misdeeds. All were unmistakably defamatory in their context.

[40] While I am satisfied that the conclusions of Penny J. in his December 9, 2019 reasons included findings of fact in relation to the allegation of corruption arising from the alleged peddling of the Queen’s medal (making that conclusion res judicata), Mr. Wu had every opportunity to bring evidence to prove the truth of any or all of the allegations he made. He proved none of them.

(c) If so, did the defendant have notice of such order?

[41] I am satisfied that the plaintiff has proved beyond a reasonable doubt that Mr. Wu had actual notice of the order of Penny J. dated December 9, 2019.

[42] Mr. Wu commented on his appeal of that order in several of his on-line posts. He appeared in person before both Favreau J. and Myers J. between July 2020 and April 2021 during which time he variously undertook to abide by the injunction of Penny J. (July 20, 2020) and had the terms of that order and the consequences of his alleged breaches of it explained to him, the latter occasion at least being with the assistance of a translator (April 9, 2021). Numerous posts authored by Mr. Wu also refer to the prospect of contempt proceedings being brought against him. At the hearing before me, Mr. Wu readily acknowledged that he received and was aware of the reasons of Penny J. and the injunction.

(d) If so, what penalty or sanction is appropriate in the circumstances proved?

[43] Based upon my conclusions to the first three questions, I found that the plaintiff has proved beyond a reasonable doubt that Mr. Wu is guilty of contempt as alleged by the plaintiff. The referenced on-line WeChat posts were published by him intentionally, they were published by him in breach of a clear order of Penny J. prohibiting him from doing so and Mr. Wu had actual knowledge of that order and the prohibition binding upon him. The letters written by him (and re-published on WeChat) were similarly published intentionally and in clear breach of the order of Penny J. for the reasons given above.

[44] At the conclusion of the hearing, I gave Mr. Wu my decision finding him guilty on the charge of civil contempt. I asked him if he had any additional evidence or submissions to me to present in relation to the question of sanction. I shall reference Mr. Wu’s submissions to me below.

[45] I consider the following aggravating factors going to sentence to be proved beyond a reasonable doubt:

a. Mr. Wu has shown himself to be impervious to previous attempts to bring him to comply with the Court’s orders.

Mr. Wu was explicitly warned by Favreau J. on July 20, 2020 that Penny J.’s order was in effect despite Mr. Wu’s appeal of that order that was then pending. He was warned by Favreau J. on March 17, 2021 that his continuing behaviour appeared to warrant contempt proceedings. He was warned by Myers J. that the contempt proceeding would not be an opportunity to re-litigate the matters already determined against him by Penny J. on April 9, 2021 and that refraining from repeating past allegations regarding Mr. Zhong’s private life did not amount to a defence against the claim of contempt. After each of these warnings, Mr. Wu returned to his computer on numerous occasions and repeated the very allegations about Mr. Zhong that he had been warned carried the risk of contempt proceedings. He was well aware that contempt proceedings were a likelihood and that incarceration was a significant risk. His public posts acknowledged that risk and evinced a clear determination to persist in his very public campaign against Mr. Zhong despite the court’s order and despite clear warnings of the consequences of his actions. He persisted undaunted in repeating the charges he had been levelling against Mr. Zhong in relation to the alleged peddling of the Queen’s medal, corruption and similar matters.

b. Mr. Wu wanted Mr. Zhong to bring contempt proceedings, in the apparent belief that this would draw further attention to the charges of corruption he continued to level against him. He has made numerous posts of a taunting nature urging that screenshots of his posts be sent to Mr. Zhong as evidence of contempt. He has made disparaging comments about the integrity of the courts in making the various orders that have gone against him in this proceeding, showing little sign that he considers himself bound to obey any such orders.

c. Mr. Wu’s conduct bears unmistakable indications of animus against Mr. Zhong.

[46] There are some mitigating factors that also need to be brought into the picture. Some of them were arose prior to the hearing, others emerged during the hearing:

a. Mr. Wu appeared to me genuinely shocked by his conviction for contempt and my assurances to him that his conduct amounted to unmistakable defamation of a man against whom he had virtually no serious evidence of wrong-doing. Mr. Wu had collected what amounts to little more than gossip and hearsay that in his mind at least were weighty enough to justify his crusade against Mr. Zhong. The fact that the court attributed so little weight to what appeared to him to be such weighty factors was visibly shocking to him and initiated what I am persuaded was a significant process of re-evaluation on his part. That process unfortunately did not begin on his part until after he was convicted of contempt following three separate court appearances and at great expense. However unfortunate the slow speed at which this realization sunk in may be, my conclusion must bear weight in considering a key factor in sentencing: potential for rehabilitation.

b. Mr. Wu is a first-time offender and has clearly been his own worst enemy in persisting with his campaign in the absence of independent and sober legal advice. This does not alter the character of his actions or its blameworthiness, but it does have an impact specific deterrence, the principle of resorting to incarceration as a last and not a first resort and tailored to the specific sentencing objective of bringing about future compliance.

[47] This is a case that on its face at least fully justifies the plaintiff’s demand for a significant penalty in the form of imprisonment. The plaintiff argued for a ninety-day term and laid particular emphasis on the deliberate, repeated and malicious nature of the defamation campaign conducted against him, the evidence that Mr. Wu has developed a following of sorts with his charges starting to be picked up and repeated by others and in particular the very specific warnings and admonitions he received from two separate judges that had such little effect upon him.

[48] It is also clear that financial sanctions have – to date at least – shown little sign of being effective tools in modifying Mr. Wu’s behaviour.

[49] Damages and costs orders in excess of $60,000 have been made against Mr. Wu in the course of this proceeding. Mr. Wu has paid none of them. Mr. Wu has been warned of the prospect of fines and costs orders being made and these warnings have had no visible impact upon his behaviour.

[50] I cannot conclude that Mr. Wu lacks the capacity to pay a fine in any amount were one to be made. The evidence on this is quite inconclusive, establishing only that he has not paid amounts ordered to be paid to Mr. Zhong in the past in fact. The evidence of his means is quite limited. It is established that he has paid none of the amounts he has been ordered to pay thus far. It has been established that he lives in rented premises and that he is self-employed with income unknown. His financial capacity is, however, quite unexplored by either side in the evidence before me.

[51] Evidence of means to pay a fine is something that must be approached with great caution in connection with the penalty phase of a contempt hearing. There is no debtor’s prison in 21st Century Canada. Contempt proceedings must not be used as an indirect means of enforcing financial orders of the court and indeed, as the Supreme Court reminded us in Carey, care and restraint must be shown in resorting to this remedy as a last and not a first resort. Routine resort to contempt proceedings or their use as a means of enforcing judgments may lead to the impression that the court’s outrage is mere bluster, thereby diminishing the respect and authority of the court’s role that the remedy is designed to enforce: Carey at para. 36.

[52] It is useful in my view to approach sentencing from first principles. The overall purpose of sentencing – the prime directive in effect – is to achieve compliance with the court’s orders. This is not important only for its own sake but because of its fundamental importance to the rule of law itself. We do not live in a police state. The rule of law in our society depends on maintaining that delicate balance between securing the voluntary behaviour in thousands of aspects of daily life both seen and unseen from a citizenry on the one hand and ensuring that non-compliance with mandatory prescriptions will not be tolerated on the other. Our court’s orders will be reduced to just so much paper if they are successfully treated as mere guidelines to be followed or ignored as convenience or whim may suggest.

[53] This does not suggest that incarceration will not ever be an appropriate sentence if future compliance is not significantly in issue. The goals of denunciation and general deterrence may require resort to such extreme measures even where future compliance is not significantly in doubt.

[54] In the present case, I am satisfied that Mr. Wu’s assurances to me that he will withdraw from making any public statements regarding Mr. Zhong in future were sincerely given and given with the intent of ensuring that he presents little risk of inflicting further harm in the form of future breaches of the permanent order of Penny J. Obviously it cannot be concluded in advance that any future comments by Mr. Wu regarding Mr. Zhong will be defamatory and I have strong doubts that it lies within my power to compel permanent silence by Mr. Wu on the subject of Mr. Zhong. However, it is clear to me that Mr. Wu’s personal beliefs regarding Mr. Zhong – as unfounded and free of reliable evidence as they may be – have little chance of being altered in the short or medium term. It is also clear to me that Mr. Wu’s judgment in matters of discerning what is defamation and what is not is suspect to the point of being invariably wrong. His acceptance and internalization of the conclusion that he cannot safely engage in public discussion or debate regarding Mr. Zhong without quickly crossing the line of defamation is a significant one. It has allowed me a reasonable – if cautious – degree of optimism that Mr. Wu can be depended upon not to breach the injunction in the future.

[55] As far as the lesson can be taught to a man whose belief systems and conscience are his own, Mr. Wu has learned the lesson. And, just as importantly, he fully and completely understands just how badly it will go for him should he cross the line in future. I am satisfied that the now-understood threat of significant sanctions very likely including significant time in prison should future violations occur has done the trick. An immediate term of prison will not bring that lesson home to him more fully than the prospect of risking a significantly longer spell in prison in future has already done.

[56] Mr. Wu has had a change of heart. He thought he had found a way to pursue what he thought was a righteous campaign against Mr. Zhong and to do so without breaching the court’s orders because he thought he could prove everything he said was true. He now understands that he was completely wrong in that at least and has been given some food for thought that may help him reassess his earlier assumptions. It would be too much for me to expect or demand that his personal beliefs be altered fundamentally. That may occur with the passage of time and some reflection. Coercion is designed to alter behaviour – it can never expect to impose belief.

[57] I do not find that incarceration is necessary to bring about future compliance.

[58] Is incarceration necessary in the circumstances to secure the goals of denunciation and general deterrence?

[59] In my view it is not. Mr. Wu is a first-time offender. He has clearly acquired something of a blind-spot when it comes to Mr. Zhong, but there is no indication that he has made a practice of defaming others. Clearly he has to be stopped as his campaign has caused harm and will continue to cause more harm if not stopped. I am satisfied on this occasion at least that the prospect of future harm is adequately addressed short of immediate incarceration and that sanctions short of incarceration can adequately express the necessary degree of credible denunciation to achieve the goal of general deterrence. Given those conclusions, a prison term would be unwarranted.

[60] What then is an appropriate sentence and what if any ancillary orders should be made?

[61] I asked Mr. Wu to discuss with Mr. Zhong’s counsel the form of apology he would be able to offer in a form that might be published prior to delivering these reasons. Mr. Wu has already expressed his sorrow at having breached the order in the past – something he assures me that he did not believe he was doing at the time but that he now accepts was the case. A published and appropriate apology coupled with a deletion of the offending posts will go a long way to mitigating the harm that Mr. Wu’s conduct has caused. I asked Mr. We to work on the text of such an apology in conjunction with plaintiff’s counsel. He has done so and the text of the apology he has agreed to publish is contained in my order below.

[62] Notwithstanding Mr. Wu’s undertaking to refrain from any future public commentary regarding Mr. Zhong, I think it prudent to issue a further permanent injunction that is particularly focused on the issue that clearly lies at the core of Mr. Wu’s defamation campaign against Mr. Zhong: his belief – baseless if apparently sincerely held – that Mr. Zhong is guilty of corrupt practices in relation to the award of Queen’s medals. The terms of those orders are described in further detail below. Mr. Wu would be very well advised to steer clear of any involvement with commenting upon Mr. Zhong in public or in private given his demonstrated poor judgment about what does and does not cross the line into defamation. Neither ignorance nor innocent mistake will carry any weight as a defence should he find himself brought back up once again on a further allegation of contempt.

[63] I turn now to address what financial consequences ought to flow from the conduct that I have found to be in contempt of this court’s prior order.

[64] Mr. Wu has already brought fines and costs orders down on this head amounting to more than $60,000. While I have no indication of his ability to pay that sum in the evidence before me, I have little doubt that this is a material sum to him. The financial consequences flowing from the deliberate and repeated breaches of the injunction found by me here must at a minimum offer the prospect of making whole the innocent plaintiff who has had the unwanted role of prosecutor and enforcer of this court’s orders thrust upon him and be proportional to the consequences of the first proceeding given the nature of the damages then found and aggravated here.

[65] I shall be ordering Mr. Wu to pay the full indemnity costs of the plaintiff in pursuing these contempt proceedings in an amount to be fixed by me after reviewing the plaintiff’s outline of costs.

[66] Finally there is the matter of a possible fine or award of damages. This matter was not specifically canvassed at our earlier hearings and I asked the parties to address it this morning in light of my decision not to impose a custodial penalty. In asking them to address this question, I advised them that I had already determined not to impose a custodial sentence and that full indemnity costs were to be awarded, an award that already implies an element of sanction or penalty.

[67] Ms Du on behalf of the plaintiff asked for general damages in the amount of $100,000 having regard to the longer time period and greater volume and potential extent of the defamatory messages spread this time by comparison to the defamation that was before Penny J. when $35,000 in general damages were awarded. She also referenced the fact that Mr. Wu has paid none of the awards of damages or costs made to date and said that a stiff penalty was required to condemn the serious misconduct found to have occurred here.

[68] Mr. Wu suggested that if a fine of the size suggested by Ms. Du were to be awarded, he would prefer to go to jail instead. I advised him that this was not something I am in a position to order – debtor’s prison is not a feature of our civil justice system.

[69] Having considered the submissions of the parties on this subject, I have decided that a fine of $35,000 will be imposed that is payable to the plaintiff in addition to the prior award of $35,000 in damages made by Penny J. that I understand remains outstanding and unpaid. The campaign initiated by Mr. Wu continued relatively unabated following the general damages awarded by Penny J. and shows signs of having resulted in some greater penetration into the consciousness of the community in which Mr. Zhong plays a prominent role. While no amount of damages will repair the harm, firm action by the Court will help persuade those who have allowed themselves to be affected by Mr. Wu’s baseless and vicious defamation campaign that his allegations have been found utterly unproved and without credible foundation. I think it is reasonable in all of the circumstances to assess damages in the same amount as previously awarded by Penny J. While the volume and duration of the campaign of defamation was more extensive on this occasion than the campaign in evidence before Penny J,, the allegations were at least somewhat narrower and omitted the vicious personal attacks alleging sexual assault and other similar crimes. My award is imposed as a fine for contempt even if the amount of the fine has been calculated by reference to the general damages that should otherwise had been awarded were this contempt motion brought instead as a defamation suit.

Disposition

[70] Accordingly, I make the following orders in connection with this motion:

a. I find Mr. Wu to be guilty of contempt as alleged. It has been proved beyond a reasonable doubt that he intentionally published defamatory statements regarding Mr. Zhong on multiple occasions between May 8, 2020 and June 29, 2021, that he was prohibited from doing so by the clear and express terms of the order of Penny J. dated December 9, 2019, an order of which he had actual notice.

b. Mr. Wu shall be ordered to pay the full indemnity costs of the plaintiff in an amount to be fixed by me following receipt of the plaintiff’s outline of costs (to be uploaded to CaseLines within seven days) and after affording the defendant a further seven days to provide me with any comments or objections to the amount claimed in writing (Mr. Wu’s written comments may be forwarded directly to my assistant via email if he has trouble uploading to CaseLines);

c. Mr. Wu shall pay a fine of $35,000 to the plaintiff as general damages arising from his deliberate breach of the injunction of Penny J.;

d. In addition to the injunction of Penny J. of December 9, 2019 that remains in full force and effect, I am granting the following injunctions and mandatory orders:

i. Mr. Wu is expressly and permanently prohibited from publishing, or encouraging any other person to publish, anything that states, infers or implies that Mr. Zhong has directly or indirectly engaged in any criminal or unethical behaviour in any way connected with the sale or awarding of medals or other honours by the Queen. For greater certainty, this injunction applies to publishing by any means whatsoever including on-line, through social media, WeChat, newspapers or newsletters or other forms of publication. As well, this injunction applies to anything Mr. Wu may publish in his own name or using any other name, username, pseudonym or account over which he has control or to which he has access in fact as well as to any statements that he knowingly encourages or causes others in future to post that would be prohibited were he to publish them himself.

ii. Mr. Wu is ordered to delete from his social media accounts (including WeChat) any and all references he has made since 2020 referring to Mr. Zhong and to do so within ten days. In addition, Mr. Wu shall delete any posts that he may have overlooked inadvertently in complying with this order within ten days of such posts being brought to his attention by the plaintiff in writing via email to the same Hotmail.com email account used by him to communicate to the court office on August 11, 2021.

iii. Mr. Wu shall publish a statement to each chat group, social media thread or site to which he had posted anything concerning Mr. Zhong since 2020 that he has been ordered to delete. The statement he shall post shall read as follows: “I am writing this letter to acknowledge that I have been found guilty of contempt by the Ontario Superior Court of Justice. I apologize to Mr. Xinsheng Zhong for writing, posting, and spreading untrue and defamatory statements against him in WeChat Groups and other public forums and for the pain and suffering that I caused to Mr. Zhong and his family. I now acknowledge that the allegations that I made against Mr. Xinsheng Zhong, including but not limited to embezzlement, corruption, bribery, fraud, tax evasion, sexual assault, and selling of the Queen’s medals, are groundless. I promise to the Court that I shall not repeat these defamatory statements.”

[71] The plaintiff is directed to produce an outline of costs detailing the costs claimed along with any brief commentary required by way of explanation. This shall be delivered via email to Mr. Wu within seven days of today and uploaded on to CaseLines. To be clear, the costs awarded by me here must be determined quite separately from the costs relating to the appeal proceedings before Favreau J. which have been the subject of separate costs orders made by her. There must be no duplication.

[72] Mr. Wu shall have a further seven days to make his own written submissions to me regarding the reasonableness of any of the amounts claimed by the plaintiff but bearing in mind that I have ordered that full indemnity costs shall be paid. The scale of costs is decided – the only issue is the reasonableness of the amounts claimed. I shall assess such costs and provide my decision in writing as soon as possible after the fourteen days have elapsed whether or not Mr. Wu chooses to provide me with any such written submissions.

[73] In conclusion, I would make the following remarks. I cannot change what Mr. Wu believes. His beliefs and his conscience are his own affair. I think that this proceeding has finally administered the sharp corrective shock needed to impress upon Mr. Wu the seriousness of his conduct and the necessity of compliance with the injunction already issued. As well, my order can go at least part of the way to mitigating and repairing some of the harm he has already wrought and to limit his ability to wreak more of the same in future.

[74] Should Mr. Wu take it upon himself to resume his misguided campaign against Mr. Zhong notwithstanding his clear expressions of remorse and good intentions in open court, he has been fairly warned of the severe punishment that very likely awaits him. He has been given a second chance notwithstanding conduct that otherwise demanded a stiff sentence today. The clemency shown today will be taken into account if Mr. Wu needs a further demonstration of the importance of abiding by this court’s orders.

[75] Mr. Wu, I have taken you at your word today and accepted your apology and undertaking to steer well clear of defaming Mr. Zhong in future. That is why you are not being led away to start a prison term right now. If you break your word and resume this campaign against Mr. Zhong, you should not expect that your word will carry much weight the next time and a very stiff sentence will very likely lie in your future in that event. I am confident that this will not happen but I want you to understand very clearly the consequences of your actions should you decide to go down this road again.

S.F. Dunphy J.

Date: September 7, 2021

[^1]: The posts were generally all made in the Chinese language but have been placed in evidence along with sworn translations. While Mr. Wu has complained about the quality of the translations generally, he has adduced no evidence that any particular translation is inaccurate or deficient. Other than elegance or fluidity in language which is always devilishly complex to capture in translation, I have no reason to question the accuracy of any of them and do not do so here.