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.

Differential Treatment of Equality Law post-Kapp

By: Jennifer Koshan

PDF Version: Differential Treatment of Equality Law post-Kapp 

Case Commented On: Woodward v Council of the Fort McMurray No. 468 First Nation, 2010 FC 337

There have been several posts on ABlawg concerning the Supreme Court’s most significant equality rights decision of late, R v Kapp, 2008 SCC 41. Jonnette Watson Hamilton nominated Kapp as the leading equality rights case of the 2000s. She and I have also written on the application of Kapp (or lack thereof) in cases such as Ermineskin Indian Band and Nation v Canada, 2009 SCC 9; Morrow v Zhang, 2009 ABCA 215 (see also here); and Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239. We are hosting a continuing legal education session on Litigating Equality Claims Post-Kapp on June 15, 2010, and hope to have a good turnout of equality rights litigators, judges and NGOs to discuss the implications of Kapp (note: the last date to register is June 1, 2010). The need for this session is real because, even two years post-Kapp, some lower courts continue to ignore the ruling in that case. The latest example is a decision of Justice James O’Reilly of the Federal Court in a case involving voting rights of non-resident members of the Fort McMurray First Nation in Woodward v Council of the Fort McMurray No.468 First Nation.

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Questions About the Role of Reasonableness and Mutual Restraining Orders in Family Violence Cases

PDF version: Questions About the Role of Reasonableness and Mutual Restraining Orders in Family Violence Cases 

Cases considered: Petropoulos v. Petropoulos, 2010 ABQB 296; Andres v. Andres, 2009 ABQB 26

The Protection Against Family Violence Act, R.S.A. 2000, c. P-27 (PAFVA) has been in force since 1999. One of the motivations behind the PAFVA was to make it easier for victims of family violence to obtain emergency protection than the previous system of civil restraining orders had allowed for. Nevertheless, the practice of issuing restraining orders in family violence cases has not disappeared. In fact, there are a number of cases where judges have issued “mutual restraining orders” when deciding whether to confirm emergency protection orders issued under the PAFVA. This comment will raise some concerns with that practice. It will also review the propriety of an objective component to proving family violence in order to obtain relief under the PAFVA. Both of these issues arise in two recent decisions of Justice Joanne Veit of the Alberta Court of Queen’s Bench.

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Leave to Appeal Granted by the SCC in Métis Status Case

By: Jennifer Koshan

PDF Version: Leave to Appeal Granted by the SCC in Métis Status Case

Case Commented On: Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239, leave to appeal granted March 11, 2010

On March 11, 2010, the Supreme Court of Canada (Justices McLachlin, Abella and Rothstein) granted leave to appeal to the Alberta government in Her Majesty the Queen in Right of Alberta (Minister of Aboriginal Affairs and Northern Development) and the Registrar et al. v Barbara Cunningham et al. Dealing with the relationship between Métis and Indian status under the Métis Settlements Act, the case may take on even greater significance in light of Bill C-3, the Gender Equity in Indian Registration Act, introduced in the House of Commons on March 12, 2010.

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Faint Hope for the Faint Hope Clause?

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.

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ABlawg at Two: Assessing Our Impact

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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