PDF version: State Responsibility for Protection against Domestic Violence: The Case of Jessica Lenahan (Gonzales) 

Case considered: Jessica Lenahan (Gonzales) et al v United States, Case 12.626, Report No. 80/11 (Inter-American Commission on Human Rights, August 17, 2011)

On August 17, 2011, the Inter-American Commission on Human Rights (IACHR) released its merits report in the case of Jessica Lenahan (Gonzales) and the United States. The case concerns states’ positive obligations to use due diligence in responding to situations of domestic violence, and is the first such case involving the U.S. to be considered by the IACHR. In what many are calling a landmark decision, the IACHR found that the United States had breached several Articles of the American Declaration of the Rights and Duties of Man in relation to its obligations to Lenahan and her children. This post will summarize the IACHR decision and analyze the implications of the case in Canada, particularly in provinces such as Alberta which have civil domestic violence legislation.

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PDF version: Consciousness and Consent in Sexual Assault Cases

Case considered: R. v. J.A., 2011 SCC 28

Can a person consent in advance to sexual activity that occurs while she is unconscious? A majority of the Supreme Court of Canada recently answered this question in the negative in R. v. J.A., 2011 SCC 28, taking the same approach as a majority of the Alberta Court of Appeal in R. v. Ashlee, 2006 ABCA 244. There were strong dissents in each case, however, indicating that the resolution of this issue is far from obvious for some judges. Also interesting is that judges on both sides of the issue frame their analyses in terms of the sexual autonomy of the complainant, and see their decisions as consistent (or at least not inconsistent) with the leading Supreme Court of Canada authority on consent, R. v. Ewanchuk, [1999] 1 S.C.R. 330. This comment will discuss the J.A. and Ashlee decisions and assess the merits of the different reasons for decision in light of the applicable statutory provisions and case law and the courts’ attention (or lack thereof) to context.

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PDF version: Interim Report on Violence Against Aboriginal Women Released

Report Commented on: House of Commons Standing Committee on the Status of Women Interim Report, Call Into The Night: An Overview of Violence Against Aboriginal Women

Just before the House of Commons was dissolved for the election, the House of Commons Standing Committee on the Status of Women tabled its Interim Report, Call Into The Night: An Overview of Violence Against Aboriginal Women. In a news release, the Honourable Hedy Fry, Chair of the Committee, stated as follows: “It is rare that an all party Committee displays such unanimity, urgency and passion in getting its message out. All members were so astounded and overwhelmed by the systemic, institutionalised nature of the violence against Aboriginal women that we wanted to make sure, this time, that their voices will be heard; that their cries for help and the hope which these hopeless and desperate women had placed in us was not lost because of an election call.” I blogged on the Committee’s Edmonton hearing back in January, focusing on the lack of attention the study was receiving in the media. The silence around violence against Aboriginal women is also identified as a major issue in the Committee’s Interim Report (at 3-4).

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PDF version: Protection Against Family Violence Act Amended

Legislation commented on: Bill 2, Protection Against Family Violence Amendment Act, 2011, S.A. 2011 c.4

Bill 2, the Protection Against Family Violence Amendment Act, 2011, makes several important changes to the Protection Against Family Violence Act, R.S.A. 2000, c. P-27 (PAFVA). The Bill, which was supported by all parties in the Alberta Legislature, received Royal Assent on March 18, 2011 and is currently awaiting proclamation. This post will review the major changes the Bill makes to the Act, having regard to the objectives of the framers of the PAFVA, judicial interpretations of the PAFVA, an independent evaluation of the PAFVA, and the legislative debates on the amendments.

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PDF version: Violence Against Aboriginal Women – Is Anyone Listening? 

Commented upon: The House of Commons Standing Committee on the Status of Women, Study on Violence Against Aboriginal Women (Standing Order 108(2))

In March 2010, the House of Commons Standing Committee on the Status of Women (FEWO) undertook a study on violence against Aboriginal Women. It held meetings in Ottawa in April 2010, and travelled to various communities across Canada in 2010 and early 2011 to hold hearings and meet with interested individuals and organizations. The Committee wrapped up its tour with a visit to Edmonton on January 21, 2011, where I was called as a witness. Sadly, and in spite of receiving a news release related to this and earlier hearings, no one from the media was present in Edmonton, a situation we were told was replicated in the Committee’s other hearings. Although one of the Committee members, Conservative MP Nina Grewal, stated repeatedly during the hearing that violence against Aboriginal women is a “top priority” of the government, the issue does not appear to be getting much attention.

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PDF version: Domestic Violence and Provocation: The Door Remains Open 

Case Considered: R. v. Tran, 2010 SCC 58

The Supreme Court’s most recent decision, R. v. Tran, is an Alberta case I commented on at the Court of Appeal level. Tran involves a man who killed his estranged wife’s lover and slashed his wife’s face, causing her permanent injury. The issue in this case was whether there was provocation arising from the fact that the accused found his wife in bed with her lover, such that he should be convicted of manslaughter rather than second degree murder. In a decision authored by Justice Louise Charron, the Supreme Court agreed with the Alberta Court of Appeal that provocation was not made out in the circumstances of the case, and upheld the accused’s conviction for murder. While this is a positive outcome, in my view the Court did not go far enough in contextualizing this case as one involving domestic violence, nor did it foreclose future uses of the provocation defence in this context.

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PDF version: Multiple Sexual Offence Proceedings and the Disclosure of “Records” under the Criminal Code

Case considered: R. v. Leykin, 2010 ABQB 631

Ruslan Leykin was charged with a number of sexual offences relating to N.W, who is also the complainant in a second sexual assault case involving a different accused. Leykin sought access to records in the possession of the Crown in relation to the second case, and argued that the governing procedure was that in R. v. Stinchcombe, [1991] 3 S.C.R. 326. The Crown argued that the proper procedure for determination of production of records was that set out under ss.278.1 to 278.9 of the Criminal Code, R.S.C. 1985, c.C-46 (”the production provisions”). In a short but important decision, Justice June Ross of the Alberta Court of Queen’s Bench agreed with the Crown, holding that the production provisions of the Criminal Code apply to records in the possession of the Crown in relation to a separate sexual assault proceeding. (more…)

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: 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: 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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