Boushie hate speech investigation reaches Crown prosecutors

​On the eve of a hearing for the man accused of murdering Colten Boushie, CBC News has learned new details of another investigation.

RCMP have confirmed they continue to investigate possible hate speech charges stemming from Boushie's death, and that some of those files have now reached the desk of Saskatchewan Crown prosecutors.

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Gerald Stanley's preliminary hearing begins Monday in the Battlefords. He faces a charge of second-degree murder after Boushie was fatally shot in Stanley's farmyard near Biggar last August. Stanley has pleaded not guilty.

After the death of the Red Pheasant Cree Nation, Sask., man on Aug. 9, 2016, dozens of racist and violent online comments were posted about Boushie, his friends or First Nations people in general.

That prompted Premier Brad Wall, RCMP, the Saskatchewan Association of Rural Municipalities and others to plead for calm.

• Sask. politicians call for end to racism following Colten Boushie's death
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RCMP have been investigating the posts for possible criminal hate speech charges. In emails to CBC News, RCMP elaborated on the status of those investigations.

Some of the troubling posts "did not warrant opening a case file," RCMP said. Others proceeded to the investigation stage.

"Of those, some reached the stage of consultation with the Crown," stated one email.

If Crown prosecutors decide hate speech charges are warranted, the Criminal Code of Canada requires them to take one extra step not required for most other charges — they need the province's attorney general, Minister of Justice Gordon Wyant, to personally sign off.

It's unclear whether Wyant has been asked to do that, as Ministry of Justice officials declined comment.

"Public Prosecutions does not discuss which cases it is reviewing for legal opinion," stated an official.

While no charges have been laid, the investigations are continuing, RCMP said.

Boushie family lawyer Chris Murphy said it shouldn't take this long to complete the investigation, especially since many of the posts appear to have been made under the account holders' real names.

"​One way or the other, you don't need seven months to determine whether they constitute hate speech, right?" Murphy said.

"It's something that a reasonable investigator can determine very quickly, and once it hits the desk of a prosecutor or the justice minister, they can make that determination very quickly."

Murphy noted such charges must be handled differently if they're laid more than six months after the offense. The additional burden and cost can make prosecutors less likely to charge, he said.

In an email, RCMP said hate speech laws "must also be balanced with the constitutional right to free speech.

"That can make investigating them and proceeding with them a complex undertaking open to significant interpretation. Gathering evidence to meet the threshold can be challenging. But as a policing agency, the RCMP is up to that task and will proceed when it is warranted."

RCMP have been criticized for their handling of the Boushie case, from the initial news release to the handling of evidence.

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While other lawyers and academics have said the posts clearly met the test for hate speech, Murphy declined to say whether he thought the posts were criminal, but said they do show reconciliation between First Nations and many other Saskatchewan residents is still a long way off.

"Colten's death really brought to the foreground how much racism still exists in Saskatchewan."