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.

Rule of Law, Deference and Contempt: Another Chapter in the Black Bear Crossing Dispute

Case Considered: Tsuu T’ina Nation v. Frasier, 2009 ABCA 140

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The dispute between the three remaining residents of Black Bear Crossing (BBC) and the Tsuu T’ina Nation was back before the courts on April 6, 2009. On that date, the Alberta Court of Appeal (Justices Peter Martin, Frans Slatter and Sal LoVecchio) heard an appeal by the Tsuu T’ina Nation of the finding of contempt made against it on November 7, 2008 by Justice Jo’Ann Strekaf. The contempt order related to the failure of the Tsuu T’ina Nation to comply with earlier orders requiring it to maintain utilities and water service at BBC while the three residents – Fred Frasier, Florence Peshee and Regina Noel – remained there pending the resolution of their claims for band membership (see my earlier post “Litigation by installments”: Further Developments in the Black Bear Crossing Dispute). While the Court of Appeal dismissed the appeal in eight short paragraphs, its judgment is replete with lofty legal concepts such as the rule of law and deference that call out to be unpacked.

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Gender Reassignment Surgery, Human Rights, and the Minister

Legislation Considered: Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c.H-14

PDF Version: Gender Reassignment Surgery, Human Rights, and the Minister

When the Alberta government introduced its budget on April 7, 2009, one of its cuts was to de-insure new gender reassignment surgeries. According to the CBC, “[t]he province had funded a maximum of 20 gender reassignment surgeries [GRS] annually; the cut is expected to save the government about $700,000 a year.” The CBC also reported that a number of human rights complaints were filed by transgendered persons on April 15, 2009, alleging that the cut amounts to discrimination on the basis of gender identity contrary to Alberta’s Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c.H-14 (“HRCMA“). In response to a question about whether an Ontario case where a similar cut was found to violate human rights legislation would serve as a precedent in Alberta, Lindsay Blackett (Minister of Culture and Community Spirit) is said to have made the following comment: “We have a slightly different process, and we have slightly different value systems and a way of thinking in Alberta, and since most of the people on our commission are from Alberta, they may look at it a little differently then Ontarians do.” Blackett’s reported comment is disturbing on a number of grounds.

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Freedom of Expression, Universities and Anti-Choice Protests

PDF version: Freedom of Expression, Universities and Anti-Choice Protests

Anti-abortion protestors were back in force at the University of Calgary the last week of March following news that on March 16, they pleaded not guilty to trespassing charges laid against them in relation to a similar incident in November, 2008. One might reasonably think that the freedom to express anti-choice views deserves protection on a university campus, a center of academic debate on a range of controversial subjects. Or one might reasonably think that the University of Calgary was justified in advising the Campus Pro-Life group that they could mount their protest, provided they turned their signs – depicting graphic images of the Rwandan genocide, the Holocaust, the Ku Klux Klan and aborted fetuses – inward. But the University is making a different argument, namely that the Canadian Charter of Rights and Freedoms does not apply to universities. I think that view is itself subject to debate.

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The Women’s Court of Canada comes to Alberta

As reported on Slaw, the Women’s Court of Canada embarked on a western Canadian tour last week, including stops in Edmonton on March 12 and Calgary on March 13. According to Michael Lines’ post on Slaw, “As a rock group they are pretty unplugged, but as an educational experience, they … rock!”So who is the Women’s Court of Canada (WCC)? Taking our inspiration from Oscar Wilde, who said “the only duty we owe to history is to rewrite it”, we are a group of academics, litigators and activists who are re-writing equality rights law. The first six judgments of the WCC (in Symes v. Canada, [1993] 4 S.C.R. 695; Native Women’s Association of Canada v. Canada, [1994] 3 S.C.R. 627; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Law v. Canada, [1999] 1 S.C.R. 497; Gosselin v. Quebec, [2002] 4 S.C.R. 429; and Newfoundland v. NAPE, [2004] 3 S.C.R. 381) are published in volume 18(1) of the Canadian Journal of Women and the Law and are available electronically on Hein On-Line. Three of the judgments are available on The Court as well. The WCC has plans for a website, including a blog, and students who attended last year’s launch of the WCC in Toronto have created a Facebook group.

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Evidence of Amelioration: What Does Kapp Require of Governments Under s.15(2) of the Charter? What Will Courts Permit?

By: Jennifer Koshan

PDF Version: Evidence of Amelioration: What Does Kapp Require of Governments Under s.15(2) of the Charter? What Will Courts Permit?

Case Commented On: Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 53

Jonnette Watson Hamilton and I recently commented on the implications of the Supreme Court of Canada’s decision in R v Kapp, 2008 SCC 41 for the proper approach to equality rights under s.15(1) of the Charter (see The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges). We also noted that Kapp was more clear in terms of the approach to be taken under s.15(2) of the Charter, giving that section “independent status to protect ameliorative laws, programs and activities.” A recent Alberta case deals with a potential new battleground under s.15(2): government attempts to introduce new evidence to establish the ameliorative purpose of their laws on appeal. If a government is successful in this respect, and the court accepts the ameliorative purpose of the law or program in question, this will effectively serve to bar a claim under s.15(1).

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