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.

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 →

“Majoritarian Blind Spot”? Drug Dependence and the Protection Against Employment Discrimination

By: Jennifer Koshan

PDF Version: “Majoritarian Blind Spot”? Drug Dependence and the Protection Against Employment Discrimination

Case Commented On: Stewart v Elk Valley Coal Corp., 2017 SCC 30 (CanLII)

The Supreme Court of Canada released its decision in Stewart v Elk Valley Coal Corp., 2017 SCC 30 (CanLII) on June 15, 2017. As noted in earlier ABlawg posts on the case (see here and here), the case involves a long-term employee whose job was terminated when, after a minor workplace accident, he tested positive for cocaine and admitted to having consumed the drug while off work a couple of days prior. Elk Valley Coal, the employer, had a policy providing some lenience for employees who disclosed drug or alcohol addictions and sought treatment, failing which its practice was to automatically terminate employment where an employee tested positive for drugs or alcohol following a workplace accident. Stewart did not avail himself of this policy because he did not realize he had an addiction until after the accident. He alleged that his termination amounted to discrimination on the basis of disability contrary to section 7 of the Alberta Human Rights Act, RSA 2000, c A-25.5, and that he had not been reasonably accommodated by Elk Valley. Stewart’s claim was dismissed by the Alberta Human Rights Tribunal, a decision upheld by the Court of Queen’s Bench and a majority of the Alberta Court of Appeal. A majority of the Supreme Court of Canada (per Chief Justice McLachlin) upheld as reasonable the Tribunal decision that there was no discrimination. Justices Moldaver and Wagner disagreed with this conclusion but concurred in the result, finding that the Tribunal was reasonable in concluding that Elk Valley had fulfilled its duty to accommodate. Justice Gascon dissented, characterizing the Tribunal’s decisions on both discrimination and the duty to accommodate as unreasonable.

I find Justice Gascon’s decision most persuasive and most in keeping with a broad, generous approach to interpreting human rights legislation. His remark (at para 59) that drug-dependent persons can “easily be caught in a majoritarian blind spot in the discrimination discourse” was evident in the decisions of the Tribunal and courts below, and in the reasons of the majority of the Supreme Court, as I will elaborate on in this post. Continue reading →

Recent Developments in Domestic Violence Law and Policy in Alberta

By: Jennifer Koshan

PDF Version: Recent Developments in Domestic Violence Law and Policy in Alberta

Legislation and Report Commented On: Bill 2, An Act to Remove Barriers for Survivors of Sexual and Domestic Violence; Family Violence Death Review Committee Annual Report 2015-2016

Statistics Canada’s most recent report on family violence indicates that although the rate of family violence reported to the police was stable across the country overall from 2014 to 2015, Alberta experienced a 2% increase in the rate of family violence during this period (Family violence in Canada: A statistical profile, 2015 at 37). Shelters in Alberta also report an increase in the number of calls to their crisis lines and for shelter space since 2014. At the same time, results from Canada’s 2014 General Social Survey showed that 7/10 self-reported victims of spousal violence did not report the violence to police, often because they viewed the abuse as a “private matter” (Family violence in Canada: A statistical profile, 2014 at 10).

Within this context, two recent developments in Alberta merit discussion. Bill 2, An Act to Remove Barriers for Survivors of Sexual and Domestic Violence, removes the limitation period that would otherwise restrict the time within which civil claims for damages can be commenced in domestic violence and sexual assault cases, and the Family Violence Death Review Committee’s 2015-2016 Annual Report makes several recommendations for changes to Alberta law and policy to better deal with family violence issues. Continue reading →

Update on the Rights of Farm and Ranch Workers in Alberta

By: Jennifer Koshan

PDF Version: Update on the Rights of Farm and Ranch Workers in Alberta

Legislation and Reports Commented on: Bill 6, The Enhanced Protection for Farm and Ranch Workers Act; Report to Ministers – Technical Working Group: Employment Standards Code; Report to Ministers – Technical Working Group: Labour Relations Code

Bill 6, The Enhanced Protection for Farm and Ranch Workers Act, made amendments removing the exclusion of farm and ranch workers from Alberta’s labour and employment legislation in January 2016, with varying timelines for implementation (for earlier posts on Bill 6 see here and here). Some of those timelines allowed for a consultation process to work through the details for including these workers in the relevant legislation. Technical working groups (TWGs) were established to make recommendations regarding the inclusion of farm and ranch workers in the Employment Standards Code, RSA 2000, c E-9, Labour Relations Code, RSA 2000, c L-1, and Occupational Health and Safety Act, RSA 2000, c O-2. Two of the TWGs have now reported, and this post will provide a brief summary of those reports, as well as the current state of inclusion / exclusion of farm and ranch workers in the legislation.

As a result of Bill 6, farm and ranch workers are now included in the Workers’ Compensation Act, RSA 2000, c W-15 (WCA), when they do paid work for farm or ranch employers. Unpaid workers, family members and children are not covered under the WCA unless their employer opts in. Recent statistics show that since Bill 6 came into force, 763 claims for workers compensation from agricultural workers have been processed, including 407 that involved a disabling injury. Continue reading →

Alberta Agrees to Amend Human Rights Legislation to Expand Prohibitions Against Age Discrimination

By: Jennifer Koshan

PDF Version: Alberta Agrees to Amend Human Rights Legislation to Expand Prohibitions Against Age Discrimination

Case Commented On: Ruth Maria Adria v Attorney General of Alberta, Court File No 1603 05013, Consent Order filed 13 January 2017

Human rights legislation exists in every province and territory in Canada, and at the federal level, but protection against discrimination varies amongst jurisdictions with respect to what grounds and areas are protected. Until recently, the Alberta Human Rights Act, RSA 2000, c A-25.5, only protected against age discrimination in the areas of publications and notices (section 3), employment practices and advertisements (sections 7 and 8), and membership in a trade union, employers’ organization or occupational association (section 9). Age was not a protected ground in relation to the provision of goods, services, accommodation or facilities customarily available to the public (section 4), or in relation to tenancies (section 5).

In January 2017, the Alberta government agreed to expand the Alberta Human Rights Act to include age as a protected ground under sections 4 and 5. This development was prompted by an application brought in March 2016 by Ruth Maria Adria under section 15 of the Charter, the constitutional equality rights guarantee, to have the omission of age declared unconstitutional and to have age read in to these sections. Continue reading →