Why the letter sent to family of boy with autism isn’t a hate crime
Published Wednesday, August 21, 2013 3:11PM EDT
The decision by Oshawa, Ont. police not to lay hate-crime charges against whoever sent a nasty letter to the grandmother of a boy with autism has angered many. But former Crown attorney David Butt says there is good reason why charges couldn’t be laid.
Late last week, the grandmother of a 13-year-old boy named Maxwell Begley received an anonymous letter at her home in Newcastle, Ont. saying that Max was “a hindrance to everyone and will always be that way." It advised the family to "do the right thing and move or euthanize him.”
Max’s grandmother called police after receiving the letter. But on Tuesday, Durham Regional Police announced that after consulting with their local Crown prosecutor’s office, they would not be laying hate crime-related charges.
Butt says Canada’s hate-crime legislation has three requirements:
1. It has to be the wilful promotion of hatred: “This letter is clearly that,” Butt told CTV News Channel Wednesday. “…It was the wilful promotion of hatred and that’s what the hate crime law addresses.”
2. It has to be promotion of hatred against an identifiable group: “This letter is also clearly that,” Butt says, because Max has a disability -- autism -- that makes him part of an identifiable group.
3. It has to be done in a public forum: This is where this letter fails the test, Butt says. “This was a letter sent directly from the author to another person. So because it didn’t have that public dimension, it didn’t qualify as a hate crime.”
Butt says there is “no doubt” the letter contained “hate-filled material,” but he says under Canadian law, the letter-writer had the right to express his or her view privately.
“Parliament has chosen to strike a balance between freedom of expression, and prosecuting hate crime,” Butt explained.
“And basically what they’ve said is: ‘If you talk privately from one person to another, we will not send the police in to chase after you for your private conversations. But if you espouse those views publicly, we will’.”
Butt added he believed it unlikely that charges of uttering threats could be laid instead.
“The difficulty here is there was no threat expressed,” Butt said. “It’s sort of hanging in the background… you might say the threat is implied, but that would be a bit of stretch in a criminal prosecution.”
Still, he said, if the author of the letter is ever identified, it was likely that police would issue the person a warning, to let them know they had skated “perilously close to the line” in terms of promoting hate and that they would be keeping an eye on them.