BenchPress - Vol 41-1 - LawNow Magazine

BenchPress – Vol 41-1

  1. A Different Divorce 

A British Columbia Provincial Court judge has divorced himself from a couple who have long been bickering in his court over custody and access issues concering their young child. Judge Bruce Hyer ordered a very detailed and specific parenting plan to take the family through to 2018, as they had requested.  He then wrote: “ I believe the time has come for me to direct that I will not in future hear matters pertaining to these parties, unless there is some emergent situation and no other judge is available. I say this because I now have a real concern that rather than struggle to reach a fair compromise on issues, these parties, and particularly the Father, will elect to have someone who knows all about them resolve the issue. In a sense, I am a known quantity. I believe the time has come for these parties to face perhaps an unknown quantity, a new judge in this court, if they cannot, including with the help of, for example, a parenting coordinator, reach a new agreement.

I think having to face a new judge who knows nothing about them will add a strong incentive or impetus to resolving issues out of court, rather than litigating them before a known judge.”

Z.S.R v R.S., 2016 BCPC 200 (CanLII)


  1. The Entrapment Defence

Entrapment is defined as inducing someone to commit a criminal offence as a result of unfair practices by the police such as trickery, fraud and persuasion.  British Columbia Supreme Court Justice Catherine Bruce recently ruled, for the first time in Canada, that two defendants had been entrapped by the RCMP into committing a terrorist act.   The RCMP’s involvement with the couple began in 2012 and escalated into an elaborate scheme to plan, organize and carry out a terrorist attack.  But Justice Bruce concluded that in fact, the RCMP manufactured a crime. She wrote: “ …the police took two people who held terrorist beliefs but no apparent capacity or means to plan, act on or carry through with their religiously motivated objectives and they counseled, directed, urged, instructed and moulded them into people who could, with significant and continuous supervision and direction by the police, play a small role in a terrorist offence.”  She added: “Simply put, the world has enough terrorists. We do not need the police to create more out of marginalized people who have neither the capacity nor sufficient motivation to do it themselves”.

R. v Nuttall 2016 BCSC 1404 (CanLII)


  1. No Really Does Mean No!

Madame Justice J. Topolniski has overturned the acquittal of a teenage youth and entered a conviction for sexual assault.  In her judgment she stated that there is no place for sexual stereotyping in sexual assault cases and no inference should be drawn about a complainant’s credibility about how a victim of sexual assault is to react to the trauma.  She ruled that the trial judge erred in interpreting and applying the law of consent. She wrote: “Consent in the context of sexual activity is not a difficult concept. It means just what the word implies….It is long beyond debate that in Canada ‘No means No’, that ‘No’ does not require a minimal word or gesture and acquiescence or ambiguous conduct do not equate to consent.”

She also ruled that the defence of mistaken belief was not available for this defendant. This defence requires that the accused take reasonable steps to make sure the complainant was consenting.  In this case, the Justice found that the defendant did the opposite of what was required: he persisted in the face of objection. She returned the case to Youth Court for sentencing.

  1. v JR, 2016 ABQB 414 (CanLII)


Teresa Mitchell
Teresa Mitchell
Teresa Mitchell is the former Editor and Legal Writer for LawNow at the Centre for Public Legal Education Alberta.

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