Author Archives: Jennifer Koshan

About Jennifer Koshan

B.Sc., LL.B (Calgary), LL.M. (British Columbia). Professor. Member of the Alberta Bar. Please click here for more information.

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

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

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.

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The Supreme Court of Canada’s Approach to the Charter’s Equality Guarantee in its Pay Equity Decisions

By: Jonnette Watson Hamilton and Jennifer Koshan

PDF Version: The Supreme Court of Canada’s Approach to the Charter’s Equality Guarantee in its Pay Equity Decisions

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)

The latest decisions of the Supreme Court of Canada on s 15 of the Canadian Charter of Rights and Freedoms are the two companion pay equity decisions rendered May 24, 2018 in Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII) (APP) and Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII) (CSQ). The analysis of the Charter’s s 15(1) prohibition of discrimination on the ground of sex and s 15(2) protection of ameliorative programs from charges of reverse discrimination – the two-case, five-judgment spanning focus of this post – reveals a seriously fractured court reminiscent of the court that decided the so-called “equality trilogy” of the mid-1990s. It reveals the lack of consensus at the end of Beverley McLachlin’s term as Chief Justice and after a significant turnover in members in the past four years, with the three most recently appointed judges who heard these appeals dissenting. The issues this post addresses – and we address them only briefly in this forum – are: (1) What is the current legal test for discerning a breach of s 15? (2) What are the contentious points on which the current justices disagree? And (3) What might these pay equity decisions mean for the future of equality law in general? Unfortunately, there is enough disagreement about the answers to the first two questions that this lengthy post will only discuss the relevant law and not go into detail on its application to the facts in this case (except in the use of comparators).

An earlier ABlawg post by Jennifer Koshan, The Supreme Court of Canada’s Pay Equity Decisions: A Call to Action for Alberta?, explores the implications of these two decisions for the Alberta government’s pay equity obligations. The context and facts of both decisions are detailed in that post, but a brief recap to set the stage for the s 15 analysis is in order.

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

By: Jennifer Koshan

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

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.

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Bills C-68 and C-69 and the Consideration of Sex, Gender and Other Identity Factors

By: Jennifer Koshan

PDF Version: Bills C-68 and C-69 and the Consideration of Sex, Gender and Other Identity Factors

Legislation Commented On: An Act to amend the Fisheries Act and other Acts in consequence (Bill C-68) and An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts (Bill C-69)

Over the past couple of months, several of my colleagues have posted comments on Bill C-68 and Bill C-69 (see here). My focus in this post is on one section that is common to Bills C-68 and C-69, which provides that when making a decision under the relevant Act, the decision-maker may or indeed must consider, among other things, “the intersection of sex and gender with other identity factors” (see proposed section 2.5(i) of the Fisheries Act (“may”), section 22(1)(s) of the proposed Impact Assessment Act (“must”), and sections 183(2)(c), 262(2)(c) and 298(3)(c) of the proposed Canadian Energy Regulator Act (“must”)). The preamble of Bill C-69 also states that “the Government of Canada is committed to assessing how groups of women, men and gender-diverse people may experience policies, programs and projects and to taking actions that contribute to an inclusive and democratic society and allow all Canadians to participate fully in all spheres of their lives.”

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