A free speech ruling that celebrates (of all things) free speech

Maxime Bernier launched a defamation lawsuit against former Liberal strategist Warren Kinsella

Michael Taube

Canada respects the principle of free speech. Unfortunately, our governments often have a love-hate relationship with this important personal freedom. They’ve created several restrictions and barriers that have, at times, made speech appear to be far less free.

Yet, a recent – and important – free speech ruling may be one of those rare birds where Canadians on the left and right have cause to celebrate.

In February, People’s Party of Canada Leader Maxime Bernier launched a defamation lawsuit in Ontario Superior Court against former Liberal strategist Warren Kinsella and his consulting firm Daisy Group.

Bernier alleged that Conservatives hired Daisy Group to engage in a secret campaign called Project Cactus, a “seek and destroy” mission to discredit him during the 2019 federal election. These allegations were based on reports from organizations like the Globe and Mail and CBC News.

(The Conservative Party never confirmed or denied that Kinsella was paid for any work. Kinsella maintained he was hired directly by Conservative sympathizers, not the party.)

Bernier alleged that news items posted during the election were designed to ruin his reputation and credibility. He claimed he was accused of being, among other things, “a racist, bigot and/or Gauleiter, a regional Nazi boss during Hitler’s rise to power and until the fall of the Third Reich.”

Bernier’s leadership was compared to former U.S. President Donald Trump and ex-Ku Klux Klan leader David Duke. Several of Kinsella’s blog posts referred to the PPC leader as a “white supremacist” and “telegenic bigot who panders to the worst of people.”

It’s difficult to know what impact this had on the election. What’s clear is Bernier’s lawsuit, which didn’t include the Conservatives or PPC, blamed his party’s poor performance (1.62 per cent of the vote) and the loss of his political seat on Project Cactus.

Kinsella’s defence focused on anti-SLAPP (Strategic Lawsuits Against Public Participation) legislation. In other words, a full-throttled rejection of libel cases that use strategic lawsuits against public participation when it comes to open, honest discussions of public policy. Support of SLAPP legislation is viewed as an attack on free speech and an attempt to freeze out all criticism.

Ontario is one of only three provinces, along with Quebec and B.C., to have passed this legislation. Nova Scotia’s proposed anti-SLAPP law didn’t pass first reading in 2001. Right-leaning provinces like Alberta and Saskatchewan have nothing on the books.

Had this case occurred anywhere else in Canada, all bets would have been off.

The defence was also risky because Canada includes provisions on hate speech law in its Criminal Code and federal and provincial legislation.

Prime Minister Justin Trudeau also introduced the controversial Bill C-10 this summer in an attempt to regulate speech on the Internet via the Canadian Radio-television and Telecommunications Commission (CRTC). The federal government would have been the final judge, jury and executioner on what was free speech and hate speech.

This rather alarming bill was shelved, although there’s nothing to prevent the Liberals from clamping down on free speech again.

The Ontario court ultimately found in favour of Kinsella.

Justice Calum MacLeod felt Bernier’s lawsuit didn’t pass the smell test with respect to Section 137.1 of the Courts of Justice Act, which deals with free expression in matters of public interest.

Click here to download“In my view, the plaintiff runs a significant risk that his action will succumb to one of the defences of justification of fair comment,” he wrote in his Nov. 10 decision. “A statement that a person is racist or misogynist is a generalization or conclusion that is not itself either true or false … the test is whether a reasonable person could reach the conclusion expressed based on the underlying facts if those underlying facts are true.”

This particular defamation lawsuit may have focused on a right-leaning political leader, but it’s an important judicial ruling for Canadians of all political stripes.

Neither Canada’s right nor left lost any personal freedoms due to Kinsella’s victory and Bernier’s defeat. The parameters pertaining to discussion and criticism of individuals, public policy and political ideas have been maintained and, in some ways, enhanced by the anti-SLAPP defence.

It’ll also help protect Canadians on the right who wish to criticize someone or something on the left now and in the future.

Free speech hasn’t necessarily won any new converts. Hate speech remains on the books.

However, an individual’s right to speak freely in the Great White North, even in this day and age, is on a more secure footing than ever before.

That deserves free … err, three cheers!

Michael Taube, a Troy Media syndicated columnist and Washington Times contributor, was a speechwriter for former prime minister Stephen Harper. He holds a master’s degree in comparative politics from the London School of Economics. For interview requests, click here.


The opinions expressed by our columnists and contributors are theirs alone and do not inherently or expressly reflect the views of our publication.

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