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.

Sexual Assault and Choking – Making Sense of the Legal Consequences

By: Jennifer Koshan

PDF Version: Sexual Assault and Choking – Making Sense of the Legal Consequences

Case Commented On: R v White, 2016 ABQB 24

The Jian Ghomeshi trial gets underway today and there is likely to be intense coverage of this event in the media and blogosphere (for earlier ABlawg posts on Ghomeshi see here and here). Ghomeshi is charged with 4 counts of sexual assault as well 1 count of overcoming resistance by choking. Choking is not uncommon in sexual assault cases, although its legal significance is still somewhat murky. For example, in R v JA, [2011] 2 SCR 440, 2011 SCC 28, the Supreme Court declined to rule on whether choking that leads to unconsciousness amounts to bodily harm so as to vitiate consent (at para 21). A recent Alberta case, R v White, 2016 ABQB 24, considered the relevancy of choking in the context of sentencing for sexual assault offences. As I will discuss in this post, White suggests that choking should be seen as equivalent to bodily harm in this context, which may have implications for sexual assault matters more broadly.

Continue reading →

Status of Women Deputy Minister Visits the University of Calgary: A Wish List

By: Jennifer Koshan

PDF Version: Status of Women Deputy Minister Visits the University of Calgary: A Wish List

Kim Armstrong, Deputy Minister of the Status of Women, visited the University of Calgary campus yesterday. I participated in one of her meetings with a group of deans, faculty members and senior staff. One of the major themes from our meeting was the need for the university to attract and retain a diverse body of students, faculty and staff, and to prepare and support students with the challenges they may face in their fields once they graduate. The need for diversity and intercultural training was also a common theme. It was interesting to hear about initiatives at the university level and in other faculties: Valerie Pruegger, Director of the Office of Diversity, Equity and Protected Disclosure, reported that her strategic plan will soon be released; Jennifer Quin, Senior Director of Student Services, has been working on a new policy on sexual assault and sexual harassment on campus; the Faculty of Science is appointing an Associate Dean responsible for Diversity; and the Werklund School of Education has engaged in cluster hiring of First Nations, Inuit and Métis faculty members. I was pleased to report that our Faculty has a new student group, Calgary Women Studying Law, with whom the Deputy Minister would like to meet to discuss women and leadership, and that we are working towards implementing the recommendations regarding legal education from the Truth and Reconciliation Commission’s recent report (see Calls to Action # 27 and 28, available here).

On my wish list of matters for the Status of Women Ministry to undertake, in conjunction with the Ministry of Justice, are a few amendments to the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA). These amendments would benefit university women as well as women and other equality-seeking groups in Alberta more generally.

Continue reading →

The Residential Tenancies Act and Domestic Violence: Facilitating Flight?

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Residential Tenancies Act and Domestic Violence: Facilitating Flight?

Legislation Commented On: Bill 204: Residential Tenancies (Safer Spaces for Victims of Domestic Violence) Amendment Act, 2015

Bill 204, the Residential Tenancies (Safer Spaces for Victims of Domestic Violence) Amendment Act, 2015, was introduced by Deborah Drever, Independent MLA for Calgary-Bow, to mark Family Violence Prevention Month on November 15, 2015. At that time, MLA Drever stated that “This bill seeks to empower and support survivors of violence by removing some of the barriers to leaving an unsafe home environment.” (Hansard, November 15, 2015). At Second Reading on November 16, 2015, MLAs from all parties expressed support for the Bill, which passed unanimously. Perhaps most powerful was the statement of the MLA for Lethbridge-East, Maria Fitzpatrick, who told her own story of domestic violence and the barriers to leaving her former spouse (Hansard, November 16, 2015). Amendments to the Bill were agreed to and introduced by the Committee of the Whole on November 30, 2015. This post will describe the ways in which Bill 204, as amended, proposes to revise the Residential Tenancies Act, SA 2004 cR-17.1, and will raise a number of issues that the Legislature may wish to consider before it passes the Bill in final form.

Continue reading →

While You Were Sleeping: Sexual Assault Involving Intoxicated or Unconscious Complainants

By: Jennifer Koshan

PDF Version: While You Were Sleeping: Sexual Assault Involving Intoxicated or Unconscious Complainants

Case Commented On: R v Garrioch, 2015 ABCA 342

One of the contexts in which women are particularly susceptible to sexual assault is when they are intoxicated, asleep or unconscious. This context also creates challenges when it comes to assessing consent. Section 273.1(2)(b) of the Criminal Code specifically provides that no consent to sexual activity is obtained where “the complainant is incapable of consenting to the activity”, and this section has been interpreted to include circumstances where the complainant is unconscious or incapacitated by intoxication (see R v Esau, [1997] 2 SCR 777). Advance consent to sexual activity that takes place while the complainant is unconscious or asleep is also outside the scope of the consent provisions (see R v JA, [2011] 2 SCR 440; 2011 SCC 28 and see my post on that decision here). In addition, section 273.2 of the Criminal Code requires the accused to take reasonable steps to ascertain whether the complainant was consenting before he can raise the defence of a mistaken belief in consent. The difficult cases arise where the complainant’s intoxication is seen to fall short of producing incapacity to consent, but at the same time creates problems with her ability to recollect the incident in question. This type of scenario was at issue in a recent Alberta case, R v Garrioch, 2015 ABCA 342.

Continue reading →

Protection for the Rights of Farm Workers Finally Proposed in Alberta

By: Jennifer Koshan

PDF Version: Protection for the Rights of Farm Workers Finally Proposed in Alberta

Legislation Commented On: Bill 6, Enhanced Protection for Farm and Ranch Workers Act

On November 17, 2015 the Minister of Jobs, Skills, Training and Labour Lori Sigurdson introduced Bill 6 in the Alberta Legislature. She described the Enhanced Protection for Farm and Ranch Workers Act as an omnibus bill that:

proposes to amend workplace legislation so Alberta’s farm and ranch workers will enjoy the same basic rights and protections as workers in other industries. Proposed changes would remove the exemption of the farm and ranch industry from occupational health and safety, employment standards, and labour relations legislation. Bill 6 also proposes to make workers’ compensation insurance mandatory for all farm and ranch workers. If passed, Alberta would join every other jurisdiction in Canada in applying workplace legislation to Alberta’s farms and ranches. This is a historic day for Alberta (Hansard, November 17, 2015).

Continue reading →