PDF version: Sentencing for Spousal Sexual Violence: Different but Equal

Cases considered: R. v. D.J.D., 2010 ABCA 207; R. v. D.J.D., 2009 ABPC 216

Until 1983, the definition of rape in Canada excluded offences committed by a husband against his wife. In that year, reforms to the Criminal Code did away with the offence of rape altogether, and implemented a new scheme of sexual offences that were gender neutral and could, explicitly, be committed by one spouse against another (see Bill C-127, Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980 81 82 83, c. 125, s. 246.8). The issue of spousal sexual violence has received little specific attention in Canada since the reforms of 1983. However, the African and Canadian Women’s Human Rights Project (ACWHRP) - a project involving lawyers, activists and academics in Canada, Ghana, Kenya and Malawi - is presently studying the lessons learned from the criminalization of marital rape in Canada in the context of efforts to criminalize this form of violence in the 3 African countries. I am completing a review of case law in Canada - some 275 decisions over the past 27 years - which shows that cases of spousal sexual violence still continue to be treated differently from other sexual assault cases when it comes to issues of consent, mistaken belief in consent, evidentiary matters, and sentencing. On the latter issue, a recent case of the Alberta Court of Appeal, R. v. D.J.D., brings to light some of the considerations faced by judges when sentencing offenders for spousal sexual violence.

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PDF version: Access to Justice, the Charter and Administrative Tribunals in Alberta: Who holds the Holy Grail?

Case considered: R. v. Conway, 2010 SCC 22

On June 11, 2010, the Supreme Court of Canada considered once again the jurisdiction of administrative tribunals to grant Charter remedies as “courts of competent jurisdiction” under section 24(1) of the Charter in R. v. Conway. This decision purports to broaden the power of administrative tribunals to award Charter remedies found in previous Supreme Court decisions by taking an “institutional” rather than “remedy by remedy” approach to the question of jurisdiction (at para. 23). However, Justice Rosalie Abella, writing for a unanimous Court, was also clear that a tribunal’s remedial jurisdiction under the Charter could be constrained by statute (at para. 22). Conway must therefore be read subject to Alberta’s Administrative Procedures and Jurisdiction Act, R.S.A. 2000, c. A-3.

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PDF version: Differential Treatment of Equality Law post-Kapp 

Case considered: Woodward v. Council of the Fort McMurray No. 468 First Nation, 2010 FC 337

There have been several posts on ABlawg concerning the Supreme Court’s most significant equality rights decision of late, R. v. Kapp, 2008 SCC 41. Jonnette Watson Hamilton nominated Kapp as the leading equality rights case of the 2000s. She and I have also written on the application of Kapp (or lack thereof) in cases such as Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9; Morrow v. Zhang, 2009 ABCA 215 (see also here); and Cunningham v. Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239. We are hosting a continuing legal education session on Litigating Equality Claims Post-Kapp on June 15, 2010, and hope to have a good turnout of equality rights litigators, judges and NGOs to discuss the implications of Kapp (note: the last date to register is June 1, 2010). The need for this session is real because, even two years post-Kapp, some lower courts continue to ignore the ruling in that case. The latest example is a decision of Justice James O’Reilly of the Federal Court in a case involving voting rights of non-resident members of the Fort McMurray First Nation in Woodward v. Council of the Fort McMurray No.468 First Nation.

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PDF version: Questions About the Role of Reasonableness and Mutual Restraining Orders in Family Violence Cases 

Cases considered: Petropoulos v. Petropoulos, 2010 ABQB 296; Andres v. Andres, 2009 ABQB 26

The Protection Against Family Violence Act, R.S.A. 2000, c. P-27 (PAFVA) has been in force since 1999. One of the motivations behind the PAFVA was to make it easier for victims of family violence to obtain emergency protection than the previous system of civil restraining orders had allowed for. Nevertheless, the practice of issuing restraining orders in family violence cases has not disappeared. In fact, there are a number of cases where judges have issued “mutual restraining orders” when deciding whether to confirm emergency protection orders issued under the PAFVA. This comment will raise some concerns with that practice. It will also review the propriety of an objective component to proving family violence in order to obtain relief under the PAFVA. Both of these issues arise in two recent decisions of Justice Joanne Veit of the Alberta Court of Queen’s Bench.

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Case considered: Cunningham v. Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239, leave to appeal granted March 11, 2010

PDF version: Leave to appeal granted by the SCC in Métis Status Case

On March 11, 2010, the Supreme Court of Canada (Justices McLachlin, Abella and Rothstein) granted leave to appeal to the Alberta government in Her Majesty the Queen in Right of Alberta (Minister of Aboriginal Affairs and Northern Development) and the Registrar et al. v. Barbara Cunningham et al. Dealing with the relationship between Métis and Indian status under the Métis Settlements Act, the case may take on even greater significance in light of Bill C-3, the Gender Equity in Indian Registration Act, introduced in the House of Commons on March 12, 2010.

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Case considered: R. v. Ryan, 2010 ABQB 87

PDF version: Faint Hope for the Faint Hope Clause?

Parliament commenced a new session last week. When it was prorogued in December 2009, 14 bills containing amendments to the Criminal Code died on the order paper, including Bill C-36, the Serious Time for the Most Serious Crime Act. Bill C-36 would have repealed the “faint hope” clause, a provision in the Criminal Code that currently allows persons convicted of first or second degree murder to seek early release on parole after serving 15 years of their sentence. Bill C-36 had passed through three readings in the House of Commons, and was before the Liberal dominated Senate before prorogation, where the amendments to the Criminal Code were a matter of some controversy. Now, there is some indication that the government will ask the opposition to reinstate rather than reintroduce the crime bills this session. Reinstatement would require a majority vote in the House of Commons to allow the process of considering the bills to resume where it left off. The difference of course is that the Senate now has several more Conservative members, appointed during the period of prorogation. A recent Alberta case helps to illustrate the potential consequences of Bill C-36 should it become law.

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February 26, 2010 is the second anniversary of ABlawg. To mark this occasion, we are interested in hearing from our readers about the impact and usefulness of ABlawg.Here are some of the questions on which we would appreciate receiving feedback:

• Are you a subscriber to ABlawg?
• How often do you read ABLawg?
• Have you used ABlawg posts in your work? How?
• Are you aware of ABlawg posts that have been cited by a court, in a legal argument, in an academic article or in another blog post? Please provide details.
• Has ABlawg assisted you in understanding the law in a particular area?
• Have you posted a comment to an ABlawg post? Why or why not?
• How does ABlawg compare with other blogs that you may subscribe to?
• What can we do to improve ABlawg?

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PDF version: ABlawg’s Top Cases and Legal Developments from the 2000s, and a Vote for Dunmore

It is the first month of a new year, and the first year of a new decade. Hence, it is a time for lists. Rolling Stone magazine has opined on the top albums, songs and movies of the 2000s, and the Globe and Mail has weighed in on the top 10 nation builders of the last decade. On the legal front, the Globe also lists the top trials of the decade in Canada as well as internationally. The Court has compiled some statistics on the Supreme Court’s output over the 2000s, and plans its own series of posts on the top judgments of the last decade.

Here at ABlawg, some of our bloggers will be writing about the case or legal development they think was most important from the 2000s. Other bloggers will be compiling top ten lists within particular areas of law. In keeping with the focus of ABlawg, our contributions will be linked to the impact the cases or legal developments have had in this province.

My own pick for a case of significance is Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016. Dunmore was hailed for its recognition that the Charter may impose positive obligations on government. In this case, the obligation arose in the context of including agricultural workers within labour relations legislation as an aspect of freedom of association under section 2(d) of the Charter. While Dunmore hedged on the issue of whether the government had a duty to include protections for collective bargaining, it opened the door for the Court’s later finding that there was such a duty in Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391.

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Case considered: R. v. Pawlowski, 2009 ABPC 362

PDF version:  Charter Freedoms and Government Duties around Street Preaching: An (Overly?) Expansive View

Earlier this month, Judge Allan Fradsham of the Alberta Provincial Court handed down a lengthy and far reaching judgment dealing with religious freedom, freedom of expression, and government duties to write laws that are not vague or overbroad. Numerous charges against Artur Pawlowski for actions associated with ministering in public spaces were dismissed by Judge Fradsham. I have been a fervent critic of the courts’ extreme deference to government in several Charter cases, but the level of government accountability and limits on government action established in this case may go too far the other way.

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Case considered: Morrow v. Zhang, 2009 ABCA 215, leave to appeal dismissed by S.C.C. December 17, 2009

PDF version:  Supreme Court denies equality claimants leave to appeal insurance cap

The Supreme Court has denied Peari Morrow and Brea Pederson leave to appeal the Alberta Court of Appeal ruling that upheld the province’s cap on non-pecuniary damages for soft tissue injuries incurred in motor vehicle accidents. Previous posts on ABlawg critiqued the Court of Appeal decision for (1) failing to apply the new approach to equality rights set down in R. v. Kapp, 2008 SCC 41, (2) improperly applying the old approach to equality rights from Law v. Canada, Minister of Employment and Immigration), [1999] 1 S.C.R. 497, (3) giving insufficient weight to evidence of stereotyping in relation to victims of minor tissue injuries, and (4) giving too much weight to the purpose of the law at the expense of its effects on those victims (see Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries and More Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries).

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