Using lawsuits as press releases

I thought Warren Kinsella's $5-million nuisance lawsuit against me was the weakest legal case I had ever seen. But that's only because I hadn't seen his legal threat against Christian Paradis, the Conservative Minister of Public Works.

You can see Kinsella's latest threat here. (Question: if Kinsella truly believed that Paradis' words hurt his reputation, why would he republish those words himself on the Internet, blog repeatedly about them and even give speeches about it? Methinks he doth protest too much.)

Let me reprint the exact words Paradis said that Kinsella's complaining about:

"The Liberal Party is back doing business as usual and has clearly not learned its lesson from the Sponsorship Scandal," said Paradis. "First Michael Ignatieff brought back disgraced Chretien backroom organizer Warren Kinsella and now he has welcomed a key Sponsorship Scandal figure into his inner circle."

Uh, that's it.

To be clear, the second person Paradis was referring to is Beryl Wajsman, a Quebec Liberal who had been banned "for life" from the Liberal Party by Paul Martin, but has been welcomed back by Ignatieff's new Quebec organizers. The entire excerpt above was from a press release by Paradis.

Let's break that down, from a defamation point of view. The first sentence is a mild opinion -- the Liberal Party has not learned its lesson from Adscam. Pretty tame stuff -- clearly fair comment. The first part of the next sentence is the only one that refers to Kinsella directly: that Ignatieff brought Kinsella back into the party (true); that Kinsella was a Chretien backroom organizer (true); and that Kinsella was disgraced (a matter of opinion). The last fifteen words refer to Wajsman -- calling Wajsman a key Sponsorship Scandal figure (that was evidently the Martin government's opinion, but it's got nothing to do with Kinsella).

So if you ignore the parts that are uncontroversial or that apply to Wajsman, Kinsella is threatening to sue Paradis because he called him "disgraced".

But that is clearly fair comment.

Kinsella was mentioned by name, again and again, in the findings of Justice John Gomery's judicial inquiry into Adscam. Justice Gomery called Kinsella's conduct "highly inappropriate" -- Kinsella had written a memo demanding that public servants change their procedures, to funnel advertising and polling monies through Chuck Guite, who was later convicted of fraud. If that's not disgraceful, I don't know what is.

Calling Kinsella disgraceful is clearly fair comment in the realm of political debates. The Liberal Party seems to think so -- they use variants of that same insult almost 500 times on their own website, usually to describe some Conservative they don't like. After a cursory check, I can't even find the word "disgraced" on a list of words deemed unparliamentary -- though Kinsella's favourite insult, "racist", is there.

And then there's the minor matter of the Supreme Court of Canada, which ruled last summer that the defence of fair comment in Canada ought to be vastly expanded. In that case, the court ruled:

[Rafe Mair's] expression of opinion, however exaggerated, was protected by the law.  We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones.

Dear reader, even before last summer's SCC ruling, Kinsella's threatened lawsuit would have been laughable. To sue an MP because he called Kinsella disgraceful? Kinsella had been disgraced by nothing less than a judicial inquiry -- a finding that, while Kinsella railed against it in every way possible, he didn't do the one thing you would expect someone to do who didn't agree with it: he didn't appeal it.

But I am wasting my time here. I am actually trying to legally analyze Paradis' comments, and the "libel notice" issued by Kinsella's lawyers.

But it's not a real libel notice. This really doesn't have anything to do with the law. It will never go to court. It's not serious.

It's a press release. But instead of putting it out from the Liberal Party war room, it's been issued by Kinsella's lawyer.

It doesn't cost anything to issue a libel notice, by the way -- they're not filed at court. They're as cheap as any other bumf faxed out by a political party.

I think it's a sign of desperation that Kinsella -- and, let's face it, his boss and patron, Michael Ignatieff -- are styling their press releases as legal threats. It's sort of like the occasional nut who writes me e-mails IN ALL CAPITAL LETTERS WITH LOTS OF EXCLAMATION POINTS!!!!! as if the visual emphasis somehow makes up for the lack of substance or sanity of the letter itself.

Anyone who actually reads Kinsella's libel notice -- and he clearly wants that to be as many people as possible, given that he's publicized it -- will see just how petty and thin-skinned it is. I don't think anyone takes it seriously -- I really have a tough time imagining that even Kinsella's lawyer takes it seriously. And I think it's pretty clear that Kinsella himself doesn't take his defamation threats seriously, either. I mean, in the past week alone, he's threatened two MPs -- Lois Brown and now Paradis.

I think it's pretty sad actually -- that the only tool of advocacy and persuasion Kinsella still wields is that of threats. It's not quite a perfect match, but he's sort of like Baghdad Bob, the Iraqi Information Minister who issued wilder and wilder statements of an imminent Saddam victory as the American troops closed in on him.

Paradis should laugh off Kinsella's letter -- and as a libel notice, unlike a statement of claim, it doesn't even require a response.

But I'll file his letter away for my own purposes. Like dozens of other occasions, this latest defamation lawsuit threat by Kinsella actually proves the case against Kinsella. Because every time Kinsella accuses someone of destroying his reputation -- and he's done so dozens of times, twice in the last week alone -- he provides evidence that, in fact, his reputation is already quite damaged in the community. If, month after month, you swear on a stack of bibles that your reputation has been destroyed by someone, and then someone else, and then someone else, it's tough to go to court claiming that your reputation was worth, oh, say, $5-million.

How sad.