Judge dismisses Maxime Bernier’s defamation case against Warren Kinsella over Project Cactus campaign

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Maxime Bernier’s lawsuit against Warren Kinsella over a secret campaign called Project Cactus has been dismissed by an Ontario Superior Court judge, who ruled the People’s Party of Canada Leader failed to prove that his defamation concerns outweighed the importance of protecting free speech in the political realm.

The defence of Mr. Kinsella, a political columnist and former Liberal strategist, relied on Ontario’s “anti-SLAPP” legislation, which is aimed at discouraging the use of a strategic lawsuit against public participation in which libel cases are used to chill critics from speaking out about public-policy matters.

The law allows defendants who have been sued for defamation to ask for the case to be dismissed if it involves a matter of public interest and if there is a reasonable prospect that the defendant’s case would succeed should the lawsuit proceed.

“In my view, the plaintiff [Mr. Bernier] runs a significant risk that his action will succumb to one of the defences of justification of fair comment,” wrote Justice Calum MacLeod in a 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.”

The Globe and Mail first reported during the 2019 election campaign that the Conservative Party had hired Mr. Kinsella and his Daisy Group consulting firm earlier that year to run a “seek and destroy” effort called Project Cactus that aimed to discredit Mr. Bernier and his new party.

The campaign included social-media posts that portrayed Mr. Bernier as a “dangerous racist.”

Mr. Bernier has called for reduced levels of immigration and has warned against “radical multiculturalism,” but he has repeatedly stated that neither he nor his party are racist.

The Conservative Party has never confirmed nor denied that it paid Mr. Kinsella for the work. The Globe reported in June of this year that documents show the costs of Project Cactus were billed and addressed to “John Walsh Conservative Party of Canada.” The address is the same address as the Conservative Party’s Ottawa headquarters on Albert Street.

Justice MacLeod writes that while Project Cactus is “at the heart of this dispute,” he notes that neither the Conservative Party nor the People’s Party of Canada are parties to the court action.

“It does not much matter for present purposes whether Mr. Kinsella and his organization were officially hired by the CPC or simply by individuals close to the party,” the ruling states. “Although in his affidavit, Mr. Bernier complains that the CPC was responsible for dirty tricks, such as running another Maxime Bernier against him in the Beauce [riding], it is not clear what (even if true) that could have to do with proceeding with a defamation action against Mr. Kinsella.”

Wednesday’s ruling notes that the dispute between Mr. Bernier and Mr. Kinsella has received “much media interest” and his decision includes a section aimed at underscoring the limited focus of his ruling, which is whether or not Mr. Kinsella meets the legal tests required to have the case dismissed under Ontario’s anti-SLAPP law.

He notes that he will not be “making a finding as to whether Mr. Bernier is or is not a racist or any of the other epithets thrown at him.” The ruling also notes that the release of the decision was delayed until after the 2021 federal election, “so that there could be no illusion of the court meddling in politics.”

Mr. Bernier issued a brief comment Thursday in response to the decision.

“I am of course disappointed by the ruling and will be looking at all our options with my lawyers in the coming days,” he said.

Mr. Kinsella and the Daisy Group issued a news release praising the ruling.

“We were always confident that the court would dismiss Bernier’s action, which was a clumsy attempt to silence dissent and legitimate criticism. Today the court agreed, and we thank them for their important judgment,” Mr. Kinsella said.

Mr. Kinsella told the court that he has worked for many parties over the past 15 years but is not currently a member of any political party.

Mr. Bernier is a former Conservative cabinet minister who finished a close second to Andrew Scheer in the party’s 2017 leadership contest. He lost his seat in Beauce during the 2019 election campaign and his party finished with 1.6 per cent of the vote.

During the 2021 election, Mr. Bernier’s party garnered 4.9 per cent of the national vote after a campaign that focused heavily on opposition to mandatory COVID-19 vaccination policies. No PPC candidates were elected.

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