Author: Jennifer Koshan Page 10 of 41

B.Sc., LL.B (Calgary), LL.M. (British Columbia).
Professor. Member of the Alberta Bar.
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The Adverse Impact of Mandatory Victim Surcharges and the Continuing Disappearance of Section 15 Equality Rights

By Jennifer Koshan

On January 7, 2019

In Constitutional, Criminal, Supreme Court of Canada

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Adverse Impact of Mandatory Victim Surcharges and the Continuing Disappearance of Section 15 Equality Rights

Case Commented On: R v Boudreault, 2018 SCC 58 (CanLII)

It was just over one year ago that our former colleague Sheilah Martin was appointed to the Supreme Court of Canada (see our tribute on ABlawg). Justice Martin has now written her first decision for the Court, R v Boudreault, 2018 SCC 58 (CanLII) which was released in December 2018. The case concerns the constitutionality of victim surcharges, which are mandatory for persons who are discharged, plead guilty, or are found guilty of an offence under the Criminal Code, RSC 1985, c C-46, or the Controlled Drugs and Substances Act, SC 1996, c 19. Writing for a majority of the Court, Justice Martin’s judgment holds that these surcharges violate section 12 of the Canadian Charter of Rights and Freedoms, which protects against cruel and unusual punishment.

Our interest in this post is in exploring how equality infuses Justice Martin’s decision. Equality rights were not directly at issue in the case; rather, the constitutional challenge focused on section 12 as well as the guarantee of life, liberty and security of the person in section 7 of the Charter. Equality arguments were made by only two interveners (see here and here) and equality is mentioned explicitly only once in Justice Martin’s ruling (at para 28). Nevertheless, the discriminatory impact of the surcharge animates her entire judgment.

This leads us to reiterate a point we have made in previous writing (see e.g. here): section 15 of the Charter, the equality guarantee, is often overlooked in favour of other rights and freedoms as a result of the courts’ difficulties with and inconsistent treatment of equality rights. This has led to the analysis of other Charter rights – including section 7 and section 12 – that overlaps with equality, which muddies the content of these other rights. In turn, the lack of a robust equality jurisprudence perpetuates the tendency of parties and courts to avoid section 15. This is not necessarily a problem when other rights can be successfully invoked, as in this case, but it can be a problem when a successful claim depends on equality rights.

Alberta’s Family Violence Laws: Intersections, Inconsistencies and Access to Justice

By Jennifer Koshan

On November 12, 2018

In State Responses to Violence

By: Jennifer Koshan, Irene Oh and Kristin McDonald

PDF Version: Alberta’s Family Violence Laws: Intersections, Inconsistencies and Access to Justice

Attached Summary Chart

November is Family Violence Prevention Month in Alberta. Law has an important role to play in prevention efforts through the ways it defines family violence, which may have educative and normative influences on the public. Law can also contribute to prevention in more material ways by providing remedies to enable victims to protect themselves and their children and by requiring perpetrators to seek counselling and other programming. But laws are only useful where they are accessible. This post describes and analyzes all of the Alberta laws and government policies pertaining to family violence, paying particular attention to the intersections and inconsistencies between them and how these might impact victims, perpetrators, children and their access to justice. While the map of laws in a single province is complex in itself, there are also federal laws relevant to domestic violence that add to this complexity – for example, for families seeking remedies under the Divorce Act, RSC 1985 c 3 (2nd Supp), and for First Nations victims of violence living on reserve, who may not have access to provincial protection order remedies (see here). The research set out in this post is part of a larger project on domestic violence and access to justice, funded by SSHRC and the Law Foundation of Ontario’s Access to Justice Fund, which is mapping legislation and government policies relevant to domestic violence across Canada. We will eventually make our research available on a website that is aimed at trusted intermediaries, those who provide services to victims and perpetrators in domestic violence cases. We also hope that this research is useful to litigants, lawyers, judges, policy-makers and other professionals who work in this area. The Alberta research is also available in a chart format that is attached above.

“Marriage is not a rugby match”: Choking, Consent and Domestic Violence

By Jennifer Koshan

On October 3, 2018

In Criminal, State Responses to Violence

By: Jennifer Koshan

PDF Version: “Marriage is not a rugby match”: Choking, Consent and Domestic Violence

Case Commented On: R. v Gardiner, 2018 ABCA 298 (CanLII)

Sexual violence – how it is perpetrated and how allegations are handled by those in power – is at the forefront of public consciousness at the moment as a result of #MeToo and, most recently, the Brett Kavanaugh confirmation hearings. But discussions about the legal definition of consent have been happening in Canada for a long time. The current definition of consent dates back to 1992 and was the result of a law reform process that included consultations with groups representing the interests of survivors as well as accused persons. Consent is defined in s 273.1 of the Criminal Code, RSC 1985, c C-46, as “the voluntary agreement of the complainant to engage in the sexual activity in question” and it is to be assessed from the complainant’s subjective perspective (R v Ewanchuk, [1999] 1 SCR 330, 1999 CanLII 711 (SCC)). Among several important principles that are well accepted in the case law (even if they are not always properly applied), consent cannot be implied or given in advance, can always be revoked, and must be present for each sexual activity in a particular encounter as well as the degree of force used for each activity (see e.g. Ewanchuk, R. v. J.A., [2011] 2 SCR 440, 2011 SCC 28 (CanLII); R v Barton, 2017 ABCA 216 (CanLII); leave to appeal granted, 2018 CanLII 11543 (SCC)).

How does this approach to consent change when the offence is one of domestic violence rather than sexual violence? For a majority of the Alberta Court of Appeal in a recent case, R. v Gardiner, 2018 ABCA 298 (CanLII), the answer is – wrongly, in my view – quite a lot.

Alberta’s Family Violence Death Review Committee: Recent Reports, Recommendations and Reflections

By Jennifer Koshan

On August 20, 2018

In Family, Human Rights

By: Jennifer Koshan

PDF Version: Alberta’s Family Violence Death Review Committee: Recent Reports, Recommendations and Reflections

Reports Commented On: Family Violence Death Review Committee, Annual Reports and Case Reviews, available here.

Alberta’s Protection Against Family Violence Act, RSA 2000, c P-27 (PAFVA) was passed in 1999 and has as its primary focus the provision of protection orders for persons experiencing family violence. The PAFVA was amended in 2013 to empower the government to establish a Family Violence Death Review Committee (FVDRC) with the mandate to review fatal incidents of family violence and to advise and make recommendations to the government on preventing and reducing family violence (PAFVA, s 16). The FVDRC was established in 2013, and its most recent annual report, released in May 2017, provides statistics on the 132 family violence deaths in Alberta between January 2008 and December 2015 (see Family Violence Death Review Committee, 2015/2016 Annual Report at 12). In a series of more in-depth case reviews released between May 2017 and May 2018, the FVDRC makes several recommendations related to legislation, policy and legal processes that I review in this post. For a good resource on domestic violence death review committees in other jurisdictions in Canada and internationally, see the website of the Canadian Domestic Homicide Prevention Initiative.

The Supreme Court of Canada’s Pay Equity Decisions: A Call to Action for Alberta?

By Jennifer Koshan

On June 22, 2018

In Constitutional, Human Rights

By: Jennifer Koshan

PDF Version: The Supreme Court of Canada’s Pay Equity Decisions: A Call to Action for Alberta?

Case Commented On: Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII); Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII)

Alberta does not have strong pay equity legislation. The Alberta Human Rights Act, RSA 2000, c A-25.5, only guarantees equal pay to employees of both sexes for “the same or substantially similar work” for the same employer (s 6). Most other Canadian jurisdictions require employers to pay male and female employees equal pay for work of equal value in either human rights legislation (see e.g. Canadian Human Rights Act, RSC 1985, c H-6, s 11; Quebec’s Charter of Human Rights and Freedoms, CQLR, c C-12, s 19) and / or in stand alone pay equity legislation (see e.g. Quebec’s Pay Equity Act, RSQ 1996, c 43, which applies to public and private employers, and Prince Edward Island’s Pay Equity Act, RSPEI 1988, c P-2, which applies to the public sector), or they have pay equity negotiating frameworks for some public sector employees (see here). Not unexpectedly, a 2016 Parkland Institute report written by Kathleen Lahey found that Alberta has the largest gender income gap in Canada at 41%, a gap which is often larger for women who are racialized (including Indigenous women) or have disabilities (at 21). The report recommended that Alberta design “robust” pay equity legislation “capable of significantly improving the economic status of women in Alberta” (at 2, 3).

Two recent Supreme Court of Canada decisions shed some light on whether Alberta is constitutionally obliged to enact more robust pay equity legislation (see Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII) (Alliance du personnel professionnel); Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII) (Centrale des syndicats)). This post will explore the implications of these decisions for the government’s pay equity obligations in Alberta. A future post with Jonnette Watson Hamilton will discuss in more detail the Court’s approach to equality rights under s 15 of the Canadian Charter of Rights and Freedoms in these cases.