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.

The Family Violence Death Review Committee’s Latest Annual Report: Time for a Family Violence Action Plan in Alberta

By: Jennifer Koshan

PDF Version: The Family Violence Death Review Committee’s Latest Annual Report: Time for a Family Violence Action Plan in Alberta

Report Commented On: Family Violence Death Review Committee, 2019/2020 Annual Report

The 2019/2020 Annual Report of Alberta’s Family Violence Death Review Committee (FVDRC) appeared with little fanfare on the government’s website in mid-January 2021. There was no news release, perhaps because the UCP government has been called out for failing to respond to the recommendations in two of the FVDRC’s previous reports from 2019 (see a discussion of those reports here and MLA Janis Irwin’s questions in the Legislative Assembly in December 2020 here (at 3804)). This post will review the major findings from the latest FVDRC Annual Report and situate the work of the FVDRC in developments around a provincial action plan on family violence. Given the evidence that family violence has increased and intensified during the COVID-19 pandemic, including in Alberta, action on the part of the government is critical. Moreover, given that family violence is gendered and disproportionately impacts members of marginalized communities – including during COVID-19 – failure to act has human rights implications for survivors (and non-survivors) of family violence.

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Domestic Violence and Access to Justice: A Mapping of Relevant Laws, Policies and Justice System Components Across Canada

By: Jennifer Koshan, Janet Mosher and Wanda Wiegers

PDF Version: Domestic Violence and Access to Justice: A Mapping of Relevant Laws, Policies and Justice System Components Across Canada

Matter Commented On: eBook on Domestic Violence Law across Canada, 2020 CanLIIDocs 3160

November 25 to December 10 marks the 16 Days of Activism Against Gender-based Violence provincially, federally and internationally. This is therefore an apt time for the publication of our new eBook on domestic violence law across Canada on Can LII (available at 2020 CanLIIDocs 3160). This eBook is the first resource to systematically document all of the laws and government policies that pertain to domestic violence across the country as a first step in providing access to justice. Several of the laws and policies we discuss in the eBook have been previously addressed in ABlawg posts (see e.g. Clare’s Law: Unintended Consequences for Domestic Violence Victims?; Mandatory Dispute Resolution Coming Back to Alberta, But What About Domestic Violence Cases?; Alberta’s Family Violence Laws: Intersections, Inconsistencies and Access to Justice). This post reproduces the Introduction and User Guide for this new eBook, which is aimed at people working with and supporting survivors of domestic violence, as well as researchers and government actors.

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Tugging at the Strands: Adverse Effects Discrimination and the Supreme Court Decision in Fraser

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Tugging at the Strands: Adverse Effects Discrimination and the Supreme Court Decision in Fraser

Case Commented On: Fraser v Canada (Attorney General), 2020 SCC 28 (CanLII)

On October 16, 2020, the Supreme Court of Canada released its long-awaited decision in Fraser v Canada (Attorney General), 2020 SCC 28 (CanLII). Fraser involved a claim of adverse effects discrimination by female RCMP members who lost their entitlement to full pension benefits when they entered temporary job-sharing arrangements. We blogged on the Federal Court of Appeal decision in Fraser here, and – in the interests of disclosure – also participated in the Supreme Court intervention in Fraser by the Women’s Legal Education and Action Fund (LEAF) (for LEAF’s news release following the Fraser decision, see here).

Fraser is the first successful adverse effects claim under section 15 of the Canadian Charter of Rights and Freedoms in over 20 years and it is the first ever successful adverse effects claim under section 15 in a sex discrimination context. This post will focus on the typical challenges that have been faced in adverse effects claims and review how Justice Rosalie Abella’s majority decision in Fraser responded to these problem areas, which were also apparent in the lower court decisions in Fraser. Although Justice Abella wrote for the majority of the Court (Chief Justice Richard Wagner and Justices Michael Moldaver, Andromache Karakatsanis, Sheilah Martin and Nicholas Kasirer, as well as herself), we will refer to the judgment as hers because it appears to be the culmination of her life-long work on equality rights and may be her last judgment on this subject before her retirement in 2021.

We also review the two dissenting judgments in Fraser, written by Justices Russell Brown / Malcolm Rowe and Justice Suzanne Côté. Our title is inspired by Justice Abella’s allegation that the dissent “tug[s] at the strands of a prior decision they disagree with … [to] unravel the precedent” (at para 133, referring to Alliance, one of the Court’s two 2018 pay equity decisions that we cite below). Interestingly, the same could be said of the majority judgement, which unravels the knots of a large body of section 15 jurisprudence that has made it difficult to prove adverse effects discrimination claims. It is these problem areas that we turn to next.

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COVID-19, Domestic Violence, and Technology-Facilitated Abuse

By: Jennifer Koshan, Janet Mosher, and Wanda Wiegers

PDF Version: COVID-19, Domestic Violence, and Technology-Facilitated Abuse

On 27 May 2020, UN Women launched the “shadow pandemic” public awareness campaign, drawing attention to the global spike in domestic violence linked to COVID-19. Phumzile Mlambo-Ngcuka, Executive Director of UN Women, describes the idea of a shadow pandemic as follows: “Even before the [COVID-19] pandemic, violence against women was one of the most widespread violations of human rights. Since lockdown restrictions, domestic violence has multiplied, spreading across the world in a shadow pandemic.”

We are in the midst of a multi-year research project on domestic violence and access to justice across Canada, but decided to shift our attention this spring/summer to the legal and policy responses to domestic violence during the COVID-19 pandemic. One aspect of our research examines the responses of courts, including what sorts of matters they consider “urgent” enough to hear during the pandemic, and how urgent cases involving domestic violence are being dealt with on the merits. We found 67 relevant cases reported on Can LII between March 16 and June 1, 2020, with relevance meaning that the cases deal with domestic violence issues that were related to the pandemic in some way. These cases span the areas of family, child protection, criminal, and protection order law. One cross-cutting theme in the case law is surveillance and technology-facilitated abuse, which is the subject of this post. We also provide some comments on access to justice issues raised by our case law sample.

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Protests Matter: A Charter Critique of Alberta’s Bill 1

By: Jennifer Koshan, Lisa Silver, and Jonnette Watson Hamilton

 PDF Version: Protests Matter: A Charter Critique of Alberta’s Bill 1

Bill Commented On: Bill 1, the Critical Infrastructure Defence Act, 2nd Sess, 30th Leg, Alberta, 2020

The last few weeks have emphasized the crucial role of public protests. The Alberta Energy Minister’s statement about the COVID-19 pandemic being a great time to build pipelines without protestors went viral (and not in a good way), and demonstrations in the United States and Canada are stark reminders that direct and systemic racism and colonialism are present in Canadian society today. In the midst of these events, the Alberta government passed Bill 1, the Critical Infrastructure Defence Act. Bill 1 was initially tabled in February 2020 during the blockades of rail lines in support of Wet’suwet’en hereditary chiefs. Only five sections long, it contains a number of prohibitions and offences relating to activities involving “essential infrastructure.” This post reviews Bill 1’s compliance with the Canadian Charter of Rights and Freedoms, concluding that it is an unjustifiable violation of at least five different fundamental rights and freedoms. A second post will examine how Bill 1 also treads on the federal government’s criminal law powers under The Constitution Act, 1867 and Aboriginal rights under section 35 of The Constitution Act, 1982. Continue reading →