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.

Legal Gaps Persist For Intimate Partner Sexual Violence After Key Ruling

By: Jennifer Koshan and Lise Gotell

PDF Version: Legal Gaps Persist For Intimate Partner Sexual Violence After Key Ruling

Case Commented On:  R. v. Goldfinch, 2019 SCC 38 (CanLII)

It has been over 25 years since Supreme Court of Canada Justice Claire L’Heureux Dubé discredited the myth that rape is most often perpetrated by strangers in R v Seaboyer; R v Gayme, 1991 CanLII 76 (SCC), [1991] 2 SCR 577. Sexual violence by men against their female intimate partners is, sadly, a common occurrence in Canada and worldwide. Yet myths about spousal sexual violence – marital rape myths – continue to infuse the approach to sexual assault by a wide range of legal actors, including police, prosecutors, defence lawyers and judges.

These myths include the beliefs that consent can be assumed or implied within intimate relationships, that women frequently make false accusations to gain an advantage in family law proceedings, and that marital rape is less serious than rape between strangers because the parties have had sex before. Social science evidence has established that marital rape is often more violent, not less, that injuries are more commonly experienced, and that survivors experience higher rates of trauma. Continue reading →

Costs Denied in Elder Advocates of Alberta Society Case

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Costs Denied in Elder Advocates of Alberta Society Case

Case Commented On: Elder Advocates of Alberta Society v Alberta, 2020 ABQB 54 (CanLII)

In February 2018 and October 2019, we posted comments on the class action litigation in Elder Advocates of Alberta Society v Alberta, where a class of long-term care residents unsuccessfully challenged the Alberta government’s ability to charge accommodation fees in long-term care facilities. The case involved claims of unjust enrichment, negligence and contract – addressed by our colleague Lorian Hardcastle here – and discrimination based on age and mental / physical disability, which we dealt with in our posts. None of the claims were ultimately successful. The plaintiffs’ most persuasive argument was that the imposition of accommodation fees was discriminatory, which was accepted by the Alberta Court of Appeal. However, the Court found the discrimination to be justified (see Elder Advocates of Alberta Society v Alberta, 2019 ABCA 342 (Can LII) and our post on that decision here).

In spite of the lack of success of this class action, Justice June Ross, the trial judge in the case, recently denied the Province of Alberta and Alberta Health Services costs against the plaintiffs and their lawyers (see Elder Advocates of Alberta Society v Alberta, 2020 ABQB 54 (CanLII)). Continue reading →

Family Violence Deaths in Alberta – An Analysis of the 2019 Reports

By: Jennifer Koshan

PDF Version: Family Violence Deaths in Alberta – An Analysis of the 2019 Reports

Reports Commented On: Family Violence Death Review Committee, Annual Report 2018-2019 and Case Review Reports 7 and 8, available here

At the mid-point of 2019, police reported that over half of all homicides in Calgary in the year to date – 54% – had occurred in the context of domestic violence. The Family Violence Death Review Committee (FVDRC) issued its annual report for 2018-19 in December 2019, which reports that between 2008 and 2018 there were 189 family violence deaths in Alberta (at 11). Of the 23 Albertans who died in family violence related incidents in 2018, 20 were victims and three were perpetrators who died in murder-suicides (at 13). The report clearly shows that family violence deaths in Alberta are gendered. Ninety per cent of perpetrators in 2018 were male, and 16 of the 20 victims were female, with the majority being women aged 20-29 who were killed with a weapon (at 14). Two of the victims were children. Previous FVDRC reports confirm that family violence related deaths in Alberta are gendered (see 2017-18 Annual Report at 5, 2016 Annual Report at 5, 2015-16 Annual Report at 14, and 2014-15 Annual Report at 28). Continue reading →

The Alberta Inquiry and Freedom of Expression

By: Jennifer Koshan and Linda McKay-Panos

PDF Version: The Alberta Inquiry and Freedom of Expression

Matter Commented On: Alberta Inquiry into Anti-Alberta Energy Campaigns

Our colleagues Martin Olszynski and Shaun Fluker have posted concerns about the Alberta Inquiry into Anti-Alberta Energy Campaigns from the perspective of the rule of law and procedural fairness (see here and here). Amnesty International has also raised concerns about the Inquiry’s “aggressive approach to defending the oil and gas industry from criticism” and the impact this approach will have on human rights defenders – especially those who are Indigenous, women, and/or environmental activists. Ecojustice flagged similar concerns about freedom of expression in its letter to Inquiry Commissioner Steve Allan. Continue reading →

Bill 26 and the Rights of Farm and Ranch Workers in Alberta

By: Jennifer Koshan

PDF Version: Bill 26 and the Rights of Farm and Ranch Workers in Alberta

Bill Commented On: Bill 26, Farm Freedom and Safety Act, 2019 (First Session, 30th Legislature)

As promised in its election platform, the UCP government has taken steps to repeal parts of Bill 6, the Enhanced Protection for Farm and Ranch Workers Act – the NDP’s initiative to extend labour and employment protections to farm and ranch workers. For previous posts on the need for Bill 6 and the changes that it made to labour and employment legislation in Alberta, see here. The latest development in this saga is last week’s introduction of Bill 26, the Farm Freedom and Safety Act, 2019, which had second reading in the legislature on November 26, 2019. This post will describe the changes that Bill 26 seeks to make and discuss the possibilities of a constitutional challenge to the Bill. Continue reading →