Author: Jennifer Koshan Page 32 of 41

B.Sc., LL.B (Calgary), LL.M. (British Columbia).
Professor. Member of the Alberta Bar.
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Case considered: R. v. Ryan, 2010 ABQB 87

PDF version: Faint Hope for the Faint Hope Clause?

Parliament commenced a new session last week. When it was prorogued in December 2009, 14 bills containing amendments to the Criminal Code died on the order paper, including Bill C-36, the Serious Time for the Most Serious Crime Act. Bill C-36 would have repealed the “faint hope” clause, a provision in the Criminal Code that currently allows persons convicted of first or second degree murder to seek early release on parole after serving 15 years of their sentence. Bill C-36 had passed through three readings in the House of Commons, and was before the Liberal dominated Senate before prorogation, where the amendments to the Criminal Code were a matter of some controversy. Now, there is some indication that the government will ask the opposition to reinstate rather than reintroduce the crime bills this session. Reinstatement would require a majority vote in the House of Commons to allow the process of considering the bills to resume where it left off. The difference of course is that the Senate now has several more Conservative members, appointed during the period of prorogation. A recent Alberta case helps to illustrate the potential consequences of Bill C-36 should it become law.

ABlawg at Two: Assessing Our Impact

By Jennifer Koshan

On February 26, 2010

In Blogs and Websites

February 26, 2010 is the second anniversary of ABlawg. To mark this occasion, we are interested in hearing from our readers about the impact and usefulness of ABlawg.Here are some of the questions on which we would appreciate receiving feedback:

• Are you a subscriber to ABlawg?
• How often do you read ABLawg?
• Have you used ABlawg posts in your work? How?
• Are you aware of ABlawg posts that have been cited by a court, in a legal argument, in an academic article or in another blog post? Please provide details.
• Has ABlawg assisted you in understanding the law in a particular area?
• Have you posted a comment to an ABlawg post? Why or why not?
• How does ABlawg compare with other blogs that you may subscribe to?
• What can we do to improve ABlawg?

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ABlawg’s Top Cases and Legal Developments from the 2000s, and a Vote for Dunmore

By Jennifer Koshan

On January 6, 2010

In Constitutional, Supreme Court of Canada

By: Jennifer Koshan

PDF Version: ABlawg’s Top Cases and Legal Developments from the 2000s, and a Vote for Dunmore

Case Commented On: Dunmore v Ontario (Attorney General), 2001 SCC 94

It is the first month of a new year, and the first year of a new decade. Hence, it is a time for lists. Rolling Stone magazine has opined on the top albums, songs and movies of the 2000s, and the Globe and Mail has weighed in on the top 10 nation builders of the last decade. On the legal front, the Globe also lists the top trials of the decade in Canada as well as internationally. The Court has compiled some statistics on the Supreme Court’s output over the 2000s, and plans its own series of posts on the top judgments of the last decade.

Here at ABlawg, some of our bloggers will be writing about the case or legal development they think was most important from the 2000s. Other bloggers will be compiling top ten lists within particular areas of law. In keeping with the focus of ABlawg, our contributions will be linked to the impact the cases or legal developments have had in this province.

My own pick for a case of significance is Dunmore v Ontario (Attorney General), [2001] 3 SCR 1016. Dunmore was hailed for its recognition that the Charter may impose positive obligations on government. In this case, the obligation arose in the context of including agricultural workers within labour relations legislation as an aspect of freedom of association under section 2(d) of the Charter. While Dunmore hedged on the issue of whether the government had a duty to include protections for collective bargaining, it opened the door for the Court’s later finding that there was such a duty in Health Services and Support – Facilities Subsector Bargaining Assn. v British Columbia, [2007] 2 SCR 391.

Charter Freedoms and Government Duties around Street Preaching: An (Overly?) Expansive View

By Jennifer Koshan

On December 29, 2009

In Constitutional, Municipal Law

Case considered: R. v. Pawlowski, 2009 ABPC 362

PDF version: Charter Freedoms and Government Duties around Street Preaching: An (Overly?) Expansive View

Earlier this month, Judge Allan Fradsham of the Alberta Provincial Court handed down a lengthy and far reaching judgment dealing with religious freedom, freedom of expression, and government duties to write laws that are not vague or overbroad. Numerous charges against Artur Pawlowski for actions associated with ministering in public spaces were dismissed by Judge Fradsham. I have been a fervent critic of the courts’ extreme deference to government in several Charter cases, but the level of government accountability and limits on government action established in this case may go too far the other way.

Supreme Court Denies Equality Claimants Leave to Appeal Insurance Cap

By Jennifer Koshan

On December 17, 2009

In Constitutional, Insurance Law, Supreme Court of Canada

By: Jennifer Koshan

PDF Version: Supreme Court Denies Equality Claimants Leave to Appeal Insurance Cap

Case Commented On: Morrow v Zhang, 2009 ABCA 215, leave to appeal dismissed by S.C.C. December 17, 2009

The Supreme Court has denied Peari Morrow and Brea Pederson leave to appeal the Alberta Court of Appeal ruling that upheld the province’s cap on non-pecuniary damages for soft tissue injuries incurred in motor vehicle accidents. Previous posts on ABlawg critiqued the Court of Appeal decision for (1) failing to apply the new approach to equality rights set down in R v Kapp, 2008 SCC 41, (2) improperly applying the old approach to equality rights from Law v Canada, Minister of Employment and Immigration), [1999] 1 S.C.R. 497, (3) giving insufficient weight to evidence of stereotyping in relation to victims of minor tissue injuries, and (4) giving too much weight to the purpose of the law at the expense of its effects on those victims (see Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries and More Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries).