The Politics of Hate Speech: A Case Comment on "Warman v. Lemire"

This article originally appeared in volume 19 of Constitutional Forum constitutionnel published by the Centre for Constitutional Studies.

In September 2009, the Canadian Human Rights Tribunal waded into a highly public and acrimonious debate about the role of human rights tribunals and commissions, especially in policing hate speech. In Warman v. Lemire,¹ the Tribunal held that section 13(1) of the Canadian Human Rights Act² (CHRA), which prohibits the communication of hate messages, infringed the constitutional guarantee of freedom of expression, section 2(b) of the Charter of Rights and Freedoms.³ The decision added to a firestorm of media, political and academic debate about whether anti-discrimination statutes should prohibit hate speech. The Warman decision is complicated by a twenty year-old Supreme Court ruling, in a 4-3 decision, that a predecessor provision in the CHRA is constitutional.⁴