OTTAWA – It’s being called a crime of ignorance. But is it a hate crime?
Durham police have ruled out hate crime charges against the still-anonymous author of a vitriolic letter telling an Oshawa family they should “euthanize” their autistic son.
Experts, advocates and politicians say it’s the right call – and they don’t anticipate changing the law anytime soon.
“This is a crime of ignorance and a crime of stupidity, and I think it’s an exception rather than the rule,” said Liberal Sen. Jim Munson, an autism advocate.
“If we go out and have a vigilant group and circle the wagons and condemn somebody, I think it gets you nowhere.”
The criminal code includes the crime of hate propaganda, which is defined as advocating genocide, inciting hatred and promoting hatred.
But it only applies to hatred against “identifiable groups,” not individuals.
Toronto criminal lawyer Mark Sandler says the law is crafted in such a way that it applies to the most narrow kind of conduct.
He worries that broadening the scope to include individuals would lead to numerous court challenges threatening freedom of speech.
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“My concern would be, if you expanded the definition of hate propaganda to cover even hatred directed against individuals, no matter how ugly it is, then I think you’d start running into problems with unduly interfering with freedom of expression and it could be struck down on constitutional grounds,” he said.
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“The better approach is to acknowledge the stuff is horrible, horrible stuff, acknowledge that it’s not a hate propaganda offence, (and) look for other criminal law sections that may apply.”
Sandler pointed to potential charges of harassment, or the use of mail to send indecent, obscene or scurrilous material.
Discriminatory claims can also be investigated by the Canadian Human Rights Commission, or the provincial equivalent, the Ontario Human Rights Commission.
In June, a Conservative private member’s bill to repeal a section of the Canadian Human Rights Act that bans hate speech communicated by telephone or Internet became law.
NDP justice critic Francoise Boivin said she was against the move to repeal Section 13.
“Freedom of expression is a value that all Canadians share…I don’t think hate should be protected the same way,” she said.
“But how should it be punished? Should it be punished civilly or criminally? That’s why I was a strong proponent of keeping Section 13, because I figured there’s so many cases that you don’t want to necessarily go before the criminal courts.”
The letter—which has gone viral and elicited a huge public outcry—was written to the family of Maxwell Begley, a 13-year-old boy with moderate to severe autism.
Begley frequents his grandmother’s home in Newcastle, Ont., where the letter comparing him to a “wild animal” was delivered.
A spokeswoman for Justice Minister Peter MacKay left the possibility of amending the Criminal Code open.
“While we cannot comment on any specific case, discrimination and mistreatment based on any identifiable factor are serious matters that will not be tolerated in our society,” Paloma Aguilar said in an email.
“Hate crimes are a serious issue and the Criminal Code is the best means that we have to combat them. We are constantly reviewing the Criminal Code to ensure that it remains the best tool to combat crime.”
Advocates for autism say they don’t want to descend to anger.
Laurie Mawlam, executive director of Autism Canada, said when she first heard about the letter, she was enraged, horrified and appalled.
But after 24 hours, her hatred turned to pity.
“We’re asking the public to be compassionate, to be loving, to be considerate to all of our children with special needs. And I think the person who wrote the letter has their own issues,” she said.
“Personally, I think they’ve gotten their punishment.”
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