BenchPress - Vol 41-4 - LawNow Magazine

BenchPress – Vol 41-4

Act Of Meanness / Lost by a Nose / Co-Mammas / The Internet and Hate Speech

1.  Act of Meanness

A Quebec Superior Court Justice recently heard an unusual estate application.  A Montreal area woman was convinced that her deceased brother’s wife had been unfaithful to him.  At a supper held after her brother’s funeral, the woman played a video she recorded of a conversation her late brother and his wife had about a month before his death. The video chronicled accusations of infidelity on the part of the widow. The Justice commented: “The broadcasting of this tape at the supper after the funeral caused scandal, shock and humiliation for Madam and her kids, in front of members of the Armenian community who were in attendance…The court is of the view that broadcasting this illegal recording of a private conversation between spouses is not only blameworthy, but constitutes an act of meanness that must be punished.” He found that the widow and her two children suffered significant psychological trauma, stress and anxiety as a result of the sister-in-law’s actions. He ordered her to pay $40,000 in moral and punitive damages to the widow and her two children.

Ashegh (Succession de), 2016 QCCS 6157 (CanLII)


2.  Lost by a Nose

Another unusual funeral event: a Nova Scotia man will serve six months in prison for biting a fellow mourner on the nose at a wake.  Many of the mourners were inebriated and a brawl broke out.  The accused argued self-defence, maintaining he was trying to keep his balance when he bit the other man on the nose. However, the judge smelled a rat.  He said “Apart from acrobats such as the iron-jaw trapeze artist memorialized in the well-known painting by Degas, nobody keeps his balance with his teeth. People will use their arms, hands, legs or otherwise contort themselves when they need to maintain balance. People do not bite into other people to maintain posture.” In addition to the jail sentence, the judge imposed 12 months of probation, a victim surcharge of $200, a DNA collection order and a ten-year firearm prohibition.

        1. R.v. MacLean , 2016 NSPC 59 (CanLII)


3.  Co-Mammas

Two law professors at the University of Ottawa have succeeded in being named “co-mothers”, or “co-mamma’s” as they like to say, for a young boy called Elaan.  Natasha Bakht gave birth to the child through the use of a sperm donor. Her friend and colleague Lynda Collins, was her birth coach. Elaan was found to be profoundly disabled some months after his birth.  Lynda became more and more involved in the life and care of Elaan, moving to a condo one floor up for Natasha and together they handled grocery shopping, meals, and Elaan’s heath care, feeding, and other physical needs. Eventually, Natasha suggested that Lynda become a second mom to the child.  The professors made an application for an Order of Parentage that would name them both as Elaan’s parents.  In November of 2016 an Ottawa judge decided that the court had jurisdiction to hear the application and that it was in the child’s best interests to grant a declaration of parentage to the two women.

Citation Not Available


4.  The Internet and Hate Speech

Justice Bruce Butler of the British Columbia Supreme Court recently heard an interesting argument about hate speech in the Internet era. After a 14- day jury trial, Roy Topham was convicted of willfully promoting hatred of an identifiable group: people of Jewish faith or origin.  In a constitutional challenge heard after his conviction, Mr. Topham argued, among other things, that a new legal issue should be considerred in his case because of the Internet age. Now, he suggested, there is wide dissemination of materials and viewpoints similar to Mr. Topham’s on the Internet.  This means that the wording of the Criminal Code offence he was convicted under violates his Charter right to free speech and is too broad and out of proportion to the harm it seeks to protect against. He argued that the hate speech law should not be saved by s. 1 of the Charter which allows limits on rights as demonstrably justified in a free and democratic society.  However, Justice Butler rejected this argument, stating: “The fact that the Internet has significantly increased the ability of people, businesses and governments to communicate widely does not raise a new issue in the s.1 justification of the Criminal Code provision. Indeed, the fact that the Internet facilitates the easy exchange of information with many people means it can cause the harm outlined in Keegstra. Indeed, the Internet may make the risk of harm associated with hate speech a more pressing issue”.

        1. v. Topham, 2017 BCSC 259 (CanLII)


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

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