Boushie case highlights problems with hate speech law: prof

The absence of hate speech charges since the death of Colten Boushie highlights the problems with Canada's hate speech laws and their enforcement, says University of Windsor Prof. Richard Moon.

This reluctance to charge and convict is caused by several factors, but all point to the need for reform, Moon said.

"I don't know whether it's not taken seriously, you know. I think there's a larger problem with hate speech law," Moon said in an interview with CBC.

Moon has followed the case of the Red Pheasant Cree Nation man, fatally shot last August on a Battlefords-area farm.

In the days that followed Boushie's death, dozens of hateful, violent anti-Indigenous social media posts appeared. Most appeared to include the account holder's real name.

Boushie posts met legal test for hate: lawyer

The volume and intensity grew to the point RCMP, Premier Brad Wall, The Saskatchewan Association of Rural Municipalities, the National Farmers Union and others pleaded for it to stop. RCMP and Wall warned such posts could have legal consequences.

It's been six months since those warnings. CBC asked RCMP whether any charges had been laid.

Last week, an RCMP official said there have been no charges. He would not give reasons and declined an interview request.

North Battleford lawyer Eleanore Sunchild said many of the Facebook posts met the legal test for hate speech and should be prosecuted.

"It crossed the line because it's specifically targeting a group of people. And it's inciting hatred toward a group of people. So that's distinguishable (from) someone being ignorant and racist," Sunchild said.

University of Saskatchewan Indigenous studies Prof. Robert Innes wonders what it will take before RCMP act. He said they should be forced to explain.

"It would probably be a good idea for the RCMP to send a message out that hate and killing of Indigenous people is not tolerated, and that advocating the killing of Indigenous people is actually a hate crime," Innes said.

Charges rare, conviction rate low

One barrier is that criminal offenses require proof "beyond a reasonable doubt" but hate speech is usually a subjective matter, Moon said.

Hate is an extreme emotion and everyone defines it differently, he said.

"There's no question that somebody who engages in, you know, awful speech about Indigenous people, I mean there's no question that's a ground (to charge)," Moon said.

"So the question is whether the speech is sufficiently extreme in its character that we might call it hate speech."

Another factor is the lack of education and experience in police forces, he said.

"The police don't always have a real expertise in this," Moon said.

It would probably be a good idea for the RCMP to send a message out that hate and killing of Indigenous people is not tolerated...- Robert Innes

"Now, I know a lot of police forces, and I'm guessing the RCMP, have really sought to develop units and some expertise…But I think, you know, even when they look into it, they're fully aware that obtaining a conviction is not an easy thing to do."

Even if police want to lay a charge, the provincial attorney general must consent.

Finally, police and the courts don't know what to do about online hate speech, he said. Most laws were written far before the advent of Facebook, Twitter and chat groups.

"There hasn't been a lot of working that out yet," Moon said.

There are other barriers, he said.

"Prosecutions are not common," Moon said. "And even when it happens, the conviction rate is not as high as with other criminal prosecutions."

Battlefords-area landowner Gerald Stanley has been charged with murder in Boushie's death. He is currently out on bail awaiting trial.