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.

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

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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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Leave to Appeal Granted in Street Preacher Case

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Case considered: R v Pawlowski, 2011 ABCA 267

On September 27, 2011, Justice Patricia Rowbotham of the Alberta Court of Appeal granted Artur Pawlowski leave to appeal certain elements of the decision in R v Pawlowski , 2011 ABQB 93 (per Justice R.J. Hall). (For a description of the facts, the laws that are being constitutionally challenged by Pawlowski, and the decision appealed from see here). Pawlowski’s challenges to City of Calgary bylaws restricting his street preaching activities were largely successful at the Alberta Provincial Court level (see R v Pawlowski, 2009 ABPC 62 and here), but he lost some ground in the City’s summary conviction appeal to the Court of Queen’s Bench. Pawlowski sought leave to appeal (1) the Queen’s Bench decision granting an extension to the City of Calgary to serve its Notice of Appeal on Pawlowski, and (2) his conviction under section 21 of the City’s Parks and Pathways Bylaw, 20M2003 (using an amplification system in a park), arguing that Justice Hall made several errors in his decision. It appears the City has not sought leave to cross-appeal Justice Hall’s holding that section 17(1)(a) of its Street Bylaw (placing material on a street) violated Pawlowski’s section 7 Charter rights because it was vague and overbroad. This post will review Justice Rowbotham’s decision to grant leave, and consider the issues for appeal in light of the Supreme Court of Canada’s recent judgment in Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, released on September 30, 2011.

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The Full Implications of Demonstrable Integration: A Roundtable Discussion on West Moberley

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Case considered: West Moberly First Nations v. British Columbia, 2011 BCCA 247

Summer at the law school provides faculty members with the opportunity to get on with some research and writing and, in particular, the larger projects that there isn’t the opportunity to tackle during the teaching terms. Law school is also a quieter place at this time with fewer LLB/ JD students around. But there is always a good number of summer students – some employed by Student Legal Assistance (SLA) for clinical duties and others employed by faculty members, the Alberta Law Reform Institute, the Alberta Civil Liberties Research Centre and Canadian Institute of Resources Law on various research projects. One of the other things that we try and do over the summer to enrich the research environment for summer students, graduate students and faculty members alike is to hold a number of roundtable discussions on recent important judicial decisions. Last year, for example, we had a discussion of Supreme Court of Canada freedom of expression decisions (R. v. National Post, 2010 SCC 16; Toronto Star v. Canada, 2010 SCC 21; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23) and a discussion of the Advisory Opinion of the International Court of Justice on Kosovo. Our first roundtable discussion this year focused on the British Columbia Court of Appeal’s decision in West Moberly First Nations v. British Columbia, 2011 BCCA 247, a recent Treaty 8 consultation case which also deals with a SARA (Species at Risk Act, SC 2002, c 29) listed species (woodland caribou). The Attorney General of Alberta appeared as an intervenor on the appeal, undoubtedly because much of northern Alberta is covered by Treaty 8.

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Consciousness and Consent in Sexual Assault Cases

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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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Interim Report on Violence Against Aboriginal Women Released

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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