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"TRUMP SHOULD DISINVITE DUTERTE OVER 'EJK'”

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By JOSEPH G. LARIOSA

(© 2017 Journal GlobaLinks)

 

 

CHICAGO (JGL) – “If people allow the malice in their hearts to overcome the knowledge in their minds that they must comply with the

law, organized society will disintegrate into vigilantism.  That is the opposite of the rule of law.”

 

Quoting a prior contempt case decided by Justice Beverley McLachlin, now Chief Justice of Canada, Justice Frederick L. Myers of the Ontario Superior Court in Toronto sentenced Monday, June 12, Filipino Canadian publisher Teresita “Tess” Cusipag of Balita (news) fortnightly to 21 days in prison for sending an email dated Oct. 6, 2016 to this correspondent of the Journal GlobaLinks and “forwarding this email exchange to others, including at least one member of the Senate of Canada when she emailed the following:

 

Please help me disseminate the truth out there.  I have permanent injunction.  I am asking all our contacts all over the world for the truth to come out.’”

 

The contempt of court decision only published Thursday, June 15, only shows that Canada, except the liberal French-law guided Quebec, provides the least protection of free speech among the English-speaking world.

 

Because Ms. Cusipag’s co-defendants, Balita Media, Inc. and Balita Newspaper, are both “corporations,” Justice Myers fined them $5,000.

 

Justice Myers issued the contempt penalties when Ms. Cusipag violated the court order of Justice Sidney Lederman on July 13, 2016, granting an “an injunction prohibiting Ms. Cusipag and Balita from repeating their libels of the plaintiff, directly or indirectly, expressly or by innuendo.”

 

Tess Cusipag and Balita defendants were also ordered to pay “jointly and severally” the “plaintiff’s costs of these contempt proceedings on a full indemnity basis.”

 

Mr. Howard Winkler, counsel of the winning plaintiff, Filipino Canadian Sen. Tobias Enverga, Jr., according to Justice Myers, “may submit a costs outline to my attention by June 19, 2017.  Mr. (James H.) Chow, counsel for Cusipag, may submit no more than three pages of submissions on the quantum of costs to my office by June 26, 2017.  All submissions shall be in searchable PDF format attached to an email to my Assistant.”

 

Ms. Cusipag had earlier denied to this correspondent ever forwarding an email message to a Canadian senator. But when Justice Myers asked her to speak up before the sentencing, she clammed up and instead let her lawyer, Mr. Chow, do the talking for her, missing a golden opportunity to straighten matters up.

 

VERY BRIEF AFFIDAVIT

 

Myers said, “The court encourages the Media Defendants to take further steps to purge their contempt so as to demonstrate concretely and completely their respect for the orders of the Superior Court of Justice and bring this entire ordeal to a quick and final conclusion.

 

“Ms. Cusipag delivered a very brief affidavit for this sentencing hearing in which she corrects what she says are translation errors in evidence filed by the plaintiff for this hearing.  Ms. Cusipag and Balita chose not to file an affidavit explaining their contempt, apologizing, demonstrating their respect for the orders of this court, or evincing an intention to refrain from repeating their contemptuous misconduct in future.  They arrive for sentencing unrepentant.

 

“At the commencement of the sentencing hearing, the defendants’ counsel purported to express an apology on behalf of Ms. Cusipag.  He then commenced making submissions concerning Ms. Cusipag’s intentions.  I declined to hear unsworn evidence from counsel.  Instead, after confirming Ms. Cusipag’s presence in the courtroom, I invited counsel to have her give live evidence from the witness stand to explain her intentions or to provide any other relevant evidence that she wished to provide.  Ms. Cusipag declined the opportunity to give evidence.

 

“Accordingly, the court is left with an apology offered by counsel that is not supported by any evidence.  While I accept that counsel’s submission is a form of apology by the defendants, it is a most minimal act of purging contempt.  Ms. Cusipag may well regret having violated the court’s order and leaving herself open to punishment. 

 

APOLOGY “HAS LITTLE EFFECT”


“But, I am still left to infer by Ms. Cusipag’s refusal to give testimony and to face cross-examination that she is unwilling to swear to recognize the authority of this court’s orders, promise to obey the court’s orders, and to refrain from repeating her violation of this court’s injunction.  Given that context, the apology offered by counsel has little content and is of equally little effect.”

 

Myers said, “Had the defendants made clear statements recognizing the court’s authority and pledging to comply with the court’s order in future, I might well have accepted Mr. Chow’s submissions that only a token sentence was required to punish past transgressions.  But where the primary sentencing goal of compelling obedience with the court’s orders has not been achieved, leniency is not appropriate. 


“Given the large damages award already outstanding, all that remains available to try to compel obedience with the court’s order is incarceration.

 

“Ms. Cusipag, please rise.  For the offence of criminal contempt of court, I sentence you Teresita Cusipag, also known as Tess Cusipag, to a term of twenty-one (21) days in provincial reformatory to commence immediately.

 

“It is the court’s true wish that you learn from this experience that you are bound by the law and you must comply with court orders even if you do not agree with them.  The court will compel obedience to its orders and punish disobedience.  The protection of the rule of law must be a paramount concern of society.”

 

The contempt proceeding is part of the defamation suit, where Ms. Cusipag and other Media defendants, were ordered to “pay a fine of $150,000 in general/aggravating damages, $100,000 in punitive damages plus $90,000 in court’s suit for a total of $340,000 after alleging that Senator Enverga failed to remit $6,000 he allegedly raised for the Filipino Canadian non-profit organization, Kalayaan (Independence) Cultural Community Centre (KCCC). The allegations crumbled when two claimants quoted by Cusipag that Enverga committed the theft died one after the other before they could testify in the defamation suit. 

 

In Canada, a defamation defendant can escape prosecution only after, not before, defamation has been presented before a jury or the bench trial.

 

According to an Organization for Security and Co-operation in Europe official report on defamation laws issued in 2005, 57 persons in Canada were accused of defamation, libel and insult.

 

Among these 57, 23 were convicted – nine to prison sentences, 19 to probation and one to fine.  The average period in prison was 270 days (nine months) and the maximum sentence was 1,460 days (four years). (Contact reporter: This email address is being protected from spambots. You need JavaScript enabled to view it.) 

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