Maxime Bernier’s defamation lawsuit should be tossed, says lawyer for Warren Kinsella

OTTAWA — A prominent political commentator is asking a court to dismiss a defamation lawsuit from a former member of Parliament who is now leader of a fringe federal political party.

A lawyer for Warren Kinsella argued Friday in Ontario Superior Court the suit from People’s Party of Canada Leader Maxime 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.

In response to a spate of such cases, Ontario, British Columbia and Quebec have enacted laws to curb them.

Bernier alleges Kinsella, a well-known columnist, author and consultant, repeatedly branded him as a racist on social media and blog posts before, during and after the 2019 federal election campaign.

In his statement of claim filed last year, Bernier said those descriptions damaged his reputation and subjected him to public scandal and embarrassment. He seeks an admission of defamation as well as $325,000 in damages.

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

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 former high-profile member of the Conservative party before founding the fledgling People’s Party of Canada, which failed to win a single seat in the October 2019 election. 

Bernier indirectly attributed his own and his party’s performance to what he characterized as Kinsella’s repeated attacks, according to the statement of claim.

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

Kinsella and his firm Daisy Consulting Group had been hired to run an anti-Bernier public relations campaign in the months leading up to the election.

Bernier founded the People’s Party shortly after narrowly losing the Conservative leadership race to Andrew Scheer in 2017. 

He said a right-wing alternative was necessary, declaring the Conservatives to be “intellectually and morally corrupt” and lacking in true conservative principles.   

While campaigning as People’s Party leader, Bernier spoke out against what he called “extreme multiculturalism,” promising to cut immigration levels and ensure new arrivals respond to Canada’s economic needs.

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.”

Shiller 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.”

“That’s very dangerous indeed.”

Bernier’s lawyers are slated to respond to the arguments when the hearing continues next month.

This report by The Canadian Press was first published June 18, 2021.

The Canadian Press