Defamation lawsuit against commentator Kinsella should go ahead, Bernier argues

OTTAWA — A former Conservative cabinet minister who began a new political party says his defamation suit against a prominent political commentator and strategist should be allowed to proceed. 

People’s Party of Canada Leader Maxime Bernier alleges Warren Kinsella repeatedly branded him as a racist in articles, blog posts and on social media in the run-up to the October 2019 federal election. 

David Shiller, a lawyer for Kinsella, is arguing in Ontario Superior Court the suit from Bernier is a strategic action intended to silence expression in the public interest. 

Strategic lawsuits against public participation — known as SLAPPs — are levied against people or organizations that take a position on an issue, with the aim of limiting their free speech.

Shiller told the court in June that Kinsella’s style is caustic and direct, but that does not mean his speech or expression is entitled to any less protection.

Andre Marin, a lawyer for Bernier, said in response Monday that Kinsella is trying to avoid the grip of the legal system. 

Kinsella is relying on anti-SLAPP provisions to deny Bernier his right to a trial on the merits of the case, Marin told the court Monday.

“This naked motion is an abuse of the court’s process. It’s all sizzle but no steak,” Marin said.

“Mr. Kinsella, obviously, is terrified, and rightfully so, heading to trial without evidence that Mr. Bernier is racist.”

After hearing arguments from each side, Justice Calum MacLeod said he would rule at a later date whether the action can continue.

Ontario’s anti-SLAPP provisions place an initial burden on the defendant in a lawsuit to satisfy a judge that the proceeding arises from an expression relating to a matter of public interest. 

The onus then shifts to the plaintiff, in this case Bernier, who must show there are grounds to believe the lawsuit has substantial merit and the defendant has no valid defence. 

The plaintiff must also demonstrate that the harm suffered, and the public interest in allowing the proceeding to continue, outweigh the public interest in safeguarding the expression. 

Bernier was a high-profile member of the Conservative party before founding the upstart People’s Party, which failed to win a seat in the 2019 election. 

Bernier indirectly attributed his performance and that of his fledgling party to what he characterized as Kinsella’s repeated attacks, according to a statement of claim filed last year. 

The claim also alleged the remarks in question were made in the context of a broader effort to publicly discredit Bernier. 

Kinsella’s Daisy Consulting Group had been paid by a lawyer who was a member of the Conservative Party to run an anti-Bernier public relations campaign for a six-week period ending June 29, 2019. Kinsella says Daisy was already engaged in such work in any event, and did not take any direction from the lawyer or submit any work for his review.

While campaigning as People’s Party leader, Bernier spoke out against what he called “extreme multiculturalism,” saying Canadians don’t need legislation to tell them who they are. He promised to drastically reduce immigration as a way of ensuring newcomers can effectively integrate.

Shiller said Monday that Bernier cannot show he suffered harm because of anything Kinsella wrote about him.

In arguments last month, Shiller stressed the importance of public comment on someone running for high political office, saying it “weighs very, very heavily. I’m not going to go as far as to say that it can never be outweighed, but it’s a heavy stone on the scale.” 

He denounced the notion of a political candidate being able to put forward extreme views “in couched language and dog whistles and the like, and no one’s allowed to call you out on it.”

This report by The Canadian Press was first published July 26, 2021.

Jim Bronskill, The Canadian Press