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.

Reconciling the Application of the Interjurisdictional Immunity Doctrine to Aboriginal Title and Lands Reserved

By: Jennifer Koshan

PDF Version: Reconciling the Application of the Interjurisdictional Immunity Doctrine to Aboriginal Title and Lands Reserved

Case Commented On: McCaleb v Rose, 2017 BCCA 318 (CanLII)

It is a challenge to teach the interjurisdictional immunity (IJI) doctrine these days, in part because the Supreme Court of Canada has been sending mixed, incomplete, and frankly off the cuff messages about the use of this doctrine. IJI has predominantly been applied so as to render provincial laws inapplicable to federal works, undertakings and other federally regulated persons and entities when they impair the core of the federal power over those entities (although the Supreme Court of Canada left the door open for IJI to apply to federal laws that impair provincial entities in Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 (CanLII)). The Court signalled in Canadian Western Bank v Alberta, 2007 SCC 22 (CanLII), that generally the use of the doctrine should be minimized since it is redolent of more rigid approaches to constitutional law that favour “watertight compartments” rather than the more modern cooperative federalism approach. Canadian Western Bank tells us that IJI issues are to be analysed only if the case can’t be resolved on the basis of validity or paramountcy, although the Court has often neglected that progression in cases subsequent to Canadian Western Bank (see e.g. Quebec (Attorney General) v Canadian Owners and Pilots Association, 2010 SCC 39 (CanLII)). Continue reading →

Landlords, Tenants, and Domestic Violence: Clarifying the Implications of Different Protection Orders

By: Jennifer Koshan

PDF Version: Landlords, Tenants, and Domestic Violence: Clarifying the Implications of Different Protection Orders

Report Commented On: Centre for Public Legal Education Alberta, Domestic Violence: Roles of Landlords and Property Managers

This is the fourth in a series of blog posts examining some of the legal uncertainties facing landlords and property managers who seek to respond to domestic violence on their premises, as identified in the report Domestic Violence: Roles of Landlords and Property Managers (for earlier posts see here, here and here). The report identified several uncertainties that landlords and property managers have about protection orders: lack of knowledge of emergency protection orders and confusion about various types of no-contact orders (at 14), and lack of clarity about how and when tenants may apply for these types of orders (at 45). This post will address these issues, highlighting the differences between various types of no-contact orders provided for by statute and common law and the implications of these different types of orders for landlords, property managers and tenants. It will also include some recommendations for reform of the law around protection orders in Alberta. A more specific issue – when landlords or tenants may change locks in response to these orders – will be dealt with in a subsequent post by Professor Jonnette Watson Hamilton. Continue reading →

Landlords, Tenants, and Domestic Violence: Clarifying Privacy Issues

By: Jennifer Koshan

PDF Version: Landlords, Tenants, and Domestic Violence: Clarifying Privacy Issues

Case Commented On: Centre for Public Legal Education Alberta, Domestic Violence: Roles of Landlords and Property Managers

A recent report written by Professor Lois Gander for the Centre for Public Legal Education Alberta (CPLEA) explores how landlords and property managers can play a part in responding to domestic violence. Domestic Violence: Roles of Landlords and Property Managers concludes that “some property managers and the landlords they represent go to considerable lengths to prevent, intervene, and support victims of domestic violence as much as they can” (at 7). This was the case even before Bill 204, the Residential Tenancies (Safer Spaces for Victims of Domestic Violence) Amendment Act, 2015, amended the Residential Tenancies Act, SA 2004 cR-17.1 (RTA), to allow victims of domestic violence to terminate their tenancies early without the usual penalties (for a post on Bill 204 see here). The report includes several recommendations to support landlords and property managers as front-line service providers in this context, including the development of training and resources. It also recommends that “further consideration should be given to ways that the law impedes or assists landlords in accommodating the needs of their tenants who are experiencing domestic violence” (at 9). Appendix F sets out several legal issues revealed by interviews with landlords and property managers, including uncertainty about: (1) the extent to which privacy laws constrain them from reporting domestic violence to tenants’ emergency contacts, guarantors and family members, (2) who is a tenant and how and when a guest or occupant acquires the rights and responsibilities of tenants, (3) the power of landlords to suspend or terminate tenancies for acts of domestic violence, (4) the power of landlords and tenants to change locks and bar access, (5) the ability of landlords to recover the cost of repairs for damages caused by tenants or their guests, and (6) the implications of different forms of no-contact orders for landlords and property managers (at 44-45). This post will address the first issue; I will comment later on issue 6 and Jonnette Watson Hamilton will discuss issues 2, 3, 4 and 5. Continue reading →

Another Workplace Death Illustrates the Need for More Enhanced Protections for Farm Workers

By: Jennifer Koshan

PDF Version: Another Workplace Death Illustrates the Need for More Enhanced Protections for Farm Workers

Matter Commented On: Report to the Minister of Justice and Solicitor General of a Public Fatality Inquiry into the Death of Stephen Murray Gibson

On June 29, 2017 the Alberta government released the report of Judge Anne Brown concerning a Public Fatality Inquiry held into the death of Stephen Murray Gibson. Gibson was a farm worker who was killed in 2014 when his clothing became caught in an auger’s unshielded power take off (PTO), and he was pulled into the equipment and instantly killed. Gibson worked for Hamilton Farms, a husband and wife cattle, grain and hay operation, and he had not had a day off in four weeks, “as it was a very busy time of year, with winter feeding and calving” (at para 4). Judge Brown’s report recognizes that “Farming is hard and hazardous work”, and notes that the Enhanced Protection for Farm and Ranch Workers Act – which I have written about on ABlawg previously (see here, here and here) – extended the protection of the Occupational Health and Safety Act, RSA 2000, c O-2 and the Workers Compensation Act, RSA 2000, c W-15 to farm and ranch workers who are paid non-family members (at paras 9 and 11). What the report does not address, because it was written on May 8, 2017, is the fact that Bill 17, the Fair and Family-friendly Workplaces Act introduced by the government on May 24, 2017, exempts farm and ranch workers from protections regarding hours of work and time off in the Employment Standards Code, RSA 2000, c E-9 (see section 4 of Bill 17, adding the new section 2.1 to the Employment Standards Code, which will come into effect on January 1, 2018). Continue reading →

Sexual Assault, Starting Points, and Court of Appeal Panel Composition: A Chilling Effect on Individualized Sentencing?

By: Jennifer Koshan

PDF Version: Sexual Assault, Starting Points, and Court of Appeal Panel Composition: A Chilling Effect on Individualized Sentencing?

Case Commented On: R v Gashikanyi, 2017 ABCA 194 (CanLII)

On the first day of summer, the Alberta Court of Appeal released a decision that has turned up the heat on the approach to sentencing in this province. R v Gashikanyi, 2017 ABCA 194 (CanLII), was the hottest case on CanLII this past week, the Court of Appeal Decision of the Week in Eugene Meehan’s Supreme Advocacy newsletter, and the subject of several media stories (see e.g. Alberta Court of Appeal justice issues scathing critique of his own court; Judge slams Alberta Court of Appeal for potential appearance of bias; Alberta court of appeal judge calls for random assignment of judges to panels). Gashikanyi deals with the propriety of a starting point approach to sentencing, an approach that Justice Ronald Berger has previously critiqued and further critiques here, receiving some support from Justice Brian O’Ferrall. But Justice Berger did not stop there — he called into question whether Court of Appeal justices are bound by horizontal precedent (i.e. decisions of their own court), and criticized the way that Alberta judges are assigned to appellate hearings, suggesting a possible lack of impartiality that Justice O’Ferrall and Justice Patricia Rowbotham (dissenting) clearly distanced themselves from. The fact that this discussion took place in the context of a sentence appeal for sexual interference contributes to the heat caused by this decision in light of the intense public scrutiny surrounding sexual assault law recently.

In this post, I review the Court of Appeal’s approach to sentencing starting points generally and in the area of sexual offences as background to the decision in Gashikanyi. I also explore the ramifications of Justice Berger’s statements about horizontal precedent and appellate panel assignments, bringing into the discussion the recent calls for judicial education on sexual assault law and social context. Continue reading →