Durham Regional Police say the assault of two lesbians in front of their children last month in Oshawa isn't a hate crime under the Criminal Code.

Activists in the region say the announcement sends a message that assaults on queer people won't be treated seriously.

In a statement issued Dec 9 police say the assault on Anji Dimitriou and Jane Currie does not meet the legal standard of a hate crime, even though the assailant allegedly repeatedly referred to the women as "fucking dykes."

"On Mon, Nov 3, 2008 two females were physically assaulted and verbally abused by a male in front of Gordon B Attersley Public School on Attersley Dr in Oshawa," reads the statement. "Several children and adult witnesses reported a male physically assaulting and verbally abusing two female victims. A male arrested at the scene was charged with [two counts of] assault causing bodily harm, a serious criminal charge that carries with it a maximum penalty of 10 years.

"A number of community agencies and citizens have since contacted the Durham Regional Police, demanding additional charges be laid under the hate crime provisions of the Criminal Code. The case was looked at very carefully, witnesses were interviewed and investigators consulted with the Crown Attorney's office and the office of the Attorney General.

"Although these acts of violence were very disturbing and offensive, they do not meet the narrow definitions of hate crime under Sections 318 or 319 under the Criminal Code. Specifically under 318, they did not advocate genocide and under 319, there was no clear evidence the accused incited others to join him in the attack."

In the statement Durham police chief Mike Ewles said the force is taking the assault seriously.

"Any act of violence should not be tolerated by our society — especially violence in plain view of children," said Ewles. "In instances of this nature we are obligated to consult with the Crown Attorney and we will not lay a charge unless the evidence supports a charge. Our primary objective, in every investigation, is to contribute to a successful prosecution by way of a thorough investigation."

If the accused is found guilty the Crown may call for a stiffer sentence under subsection 718.2 of the Criminal Code which states that a court may take into account "evidence that the offence was motivated by bias, prejudice or hate based on... sexual orientation."

But those sentencing provisions are rarely used, say many of those in the justice system.

Tom Decker, the Toronto police LGBT liaison officer, says the crown attorney's willingness to approach an assault as a hate crime often changes by the time a case reaches court, meaning no additional time is added to a sentence.

"Often the hate crimes are the first things to get dropped," he told Xtra in an interview in October. "That's just the way the legal system operates. That whole bargaining, it's a give and take. As the crown attorney you want to get a conviction. You don't want to drop the assault but you might be willing to drop the aggravating circumstances."

Udana Muldoon, the chair of Durham Queer Parenting, says the move could lead to further assaults.

"I just don't want this decision to empower other people to do this and think it's not a hate crime," she says. "I don't want this to be a gateway to commit these crimes. In Oshawa this could very well lead to that. It's just given a bigger voice to haters.

"It would be nice if queer people could say, 'I can trust my judicial system.'"

Mark Jacula, the lawyer for accused Mark Scott, says the police decision is good news for his client.

"I never thought there would be hate charges laid based on what I've been told," he says. "I've talked to Mark and to some eyewitnesses and I don't think the evidence exists to lay those charges. I think the police and the crown have reviewed the case pretty thoroughly and it's good to see some of the truth here starting to come to light."

Scott, 44, of Oshawa has been charged with two counts of assault causing bodily harm. He is scheduled to appear in court on Thu, Jan 8.