Author: Jennifer Koshan Page 19 of 41

B.Sc., LL.B (Calgary), LL.M. (British Columbia).
Professor. Member of the Alberta Bar.
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By: Jennifer Koshan

PDF Version: Judicial Interventions and Rape Myths: Differing Approaches at the Alberta Court of Appeal

Case Commented On: R v Schmaltz, 2015 ABCA 4

A decision from the Alberta Court of Appeal has garnered attention from the media (see here and here) for its contribution to recent debates about rape culture and rape myths. In the context of discussions about Ghomeshi (see here and here), Cosby, Dalhousie and the ongoing challenges that prevent many women from coming forward with complaints about sexual assault and harassment, the Court of Appeal has weighed in on the role that judges can play in curtailing the perpetuation of rape myths in the courtroom. In R v Schmaltz, 2015 ABCA 4, the majority (Justices Russell Brown and Thomas Wakeling) ordered a new trial based on their view that the trial judge had gone too far in limiting cross-examination of the complainant. Justice Marina Paperny, writing in dissent, would have dismissed the appeal and upheld the conviction of the accused.

First Nations Community Election Codes and the Charter

By Jennifer Koshan

On January 19, 2015

In Aboriginal, Constitutional

By: Jennifer Koshan

PDF Version: First Nations Community Election Codes and the Charter

Case Commented On: Orr v Peerless Trout First Nation, 2015 ABQB 5

In December Jonnette Watson Hamilton and I wrote a post commenting on Taypotat v Taypotat, 2012 FC 1036; rev’d 2013 FCA 192; leave to appeal granted 2013 CanLII 83791 (SCC), a case currently before the Supreme Court which involves the constitutionality of a First Nations election code. A similar case arose in Alberta recently. In Orr v Peerless Trout First Nation, 2015 ABQB 5, Master L.A. Smart dismissed a claim by a member of the Peerless Trout First Nation alleging that that Nation’s Customary Election Regulations were unconstitutional.

The Supreme Court’s Other Opportunity to Revisit Adverse Effects Discrimination under the Charter: Taypotat v Taypotat

By Jennifer Koshan

On December 18, 2014

In Aboriginal, Constitutional

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Supreme Court’s Other Opportunity to Revisit Adverse Effects Discrimination under the Charter: Taypotat v Taypotat

Case Commented On: Taypotat v Taypotat, 2012 FC 1036; rev’d 2013 FCA 192; leave to appeal to SCC granted 2013 CanLII 83791 (SCC)

A few weeks ago we wrote a post on Carter v Canada (Attorney General), 2012 BCSC 886, rev’d 2013 BCCA 435, leave to appeal to SCC granted 2014 CanLII 1206 (SCC), predicting what the Supreme Court might decide on the issue of whether the prohibition against assisted suicide amounts to adverse effects discrimination against people with disabilities, contrary to section 15(1) of the Charter. We mentioned that Carter is one of two adverse effects cases currently before the Supreme Court. This post will consider the second case, Taypotat v Taypotat.

Taypotat concerns a community election code adopted by the Kahkewistahaw First Nation in Saskatchewan to govern elections for the positions of Chief and Band Councillor. The adoption of the code was controversial and took a number of ratification votes, stemming in part from the fact that it restricted eligibility for these elected positions to persons who had at least a Grade 12 education or the equivalent. Although he had previously served as Chief for a total of 27 years, the Kahkewistahaw election code excluded 74 year old Louis Taypotat from standing for election because he did not have a Grade 12 education. He had attended residential school until the age of 14 and had been assessed at a Grade 10 level. His nephew, Sheldon Taypotat, was the only eligible candidate for Chief, and he won the election by acclamation. In an application for judicial review, Louis Taypotat challenged the eligibility provision and the election results under section 15(1) of the Charter.

National Day of Remembrance and Action on Violence Against Women and the Failed Challenge to the Repeal of the Long Gun Registry

By Jennifer Koshan

On December 6, 2014

In Constitutional, Criminal, State Responses to Violence

By Jennifer Koshan

PDF Version: National Day of Remembrance and Action on Violence Against Women and the Failed Challenge to the Repeal of the Long Gun Registry

Case Commented On: Barbra Schlifer Commemorative Clinic v Canada, 2014 ONSC 5140 (CanLII)

Yesterday the University of Calgary marked the 25^th National Day of Remembrance and Action on Violence Against Women with two events: the annual ceremony held by the Women’s Centre, and our own ceremony in the Faculty of Law. Our event involved strong components of both remembrance and action. We recognized the 20^th anniversary of the installation of Teresa Posyniak’s beautiful and haunting sculpture “Lest We Forget” in the Faculty. The sculpture honours women who were killed by men, including Aboriginal women, sex trade workers and the 14 women of L’Ecole Polytechnique. Teresa was present to share her reflections on creating the sculpture, the progress we have made on issues of violence against women over the last 20 years, and the work we still have to do. In terms of action, we also heard from Michelle Robinson, a Yellowknife Dene woman who spoke powerfully about the ongoing colonial violence experienced by indigenous women and indigenous peoples in Canada, and of the actions that we can and must all take to respond to this violence. Dean Ian Holloway stressed the importance of hosting the sculpture in our faculty as a reminder to reflect on the meaning of justice.

That brings me to the case I wish to comment upon in this post. Three years ago, I marked the National Day of Remembrance with an ABlawg post inquiring into whether the federal government’s repeal of the long gun registry was a violation of its obligations concerning violence against women. There has now been litigation on that question, and the applicant Barbra Schlifer Commemorative Clinic was unsuccessful in arguing that the repeal violated sections 7 and 15 of the Charter (Barbra Schlifer Commemorative Clinic v Canada, 2014 ONSC 5140 (CanLII)).

Assisted Suicide and Adverse Effects Discrimination: Where Will the Supreme Court Go in Carter?

By Jennifer Koshan

On November 24, 2014

In Constitutional

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Assisted Suicide and Adverse Effects Discrimination: Where Will the Supreme Court Go in Carter?

Case Commented On: Carter v Canada (Attorney General), 2012 BCSC 886, rev’d 2013 BCCA 435, leave to appeal to SCC granted 2014 CanLII 1206 (SCC)

We recently posted a paper on SSRN that is forthcoming in the Review of Constitutional Studies, dealing with the Supreme Court of Canada’s approach to adverse effects discrimination under section 15(1) of the Charter. Adverse effects discrimination occurs when laws that are neutral on their face have a disproportionate and negative impact on members of a group identified by a prohibited ground of discrimination. Although the Court has recognized adverse effects discrimination as key to the Charter’s guarantee of substantive equality, it has decided only 8 such cases out of a total of 66 section 15(1) decisions released since 1989, none since 2009. Only 2 of the 8 claims were successful (see Appendix I in our paper). Our analysis shows several obstacles for adverse effects discrimination claims, including burdensome evidentiary and causation requirements, courts’ acceptance of government arguments about the “neutrality” of policy choices, narrow focusing on prejudice and stereotyping as the only harms of discrimination, and failing to “see” adverse effects discrimination, often because of the size or relative vulnerability of the group making the claim.

In light of the very small number of successful adverse effects claims and the problems in the case law, it is interesting to note that in October 2014 the Supreme Court heard 2 section 15(1) appeals involving adverse effects discrimination: Carter v Canada (Attorney General) and Taypotat v Taypotat, 2012 FC 1036, 2013 FCA 192; leave to appeal to SCC granted 2013 CanLII 83791 (SCC). This post will focus on Carter, a challenge to the ban on assisted suicide under the Criminal Code, RSC 1985, c C-46, and the adverse effects discrimination arguments the Supreme Court is considering in that case. We acknowledge that the Court is far more likely to decide Carter on section 7 grounds—much of the Court’s focus during oral arguments was on whether the ban violates the rights to life and security of the person in ways that are arbitrary, overbroad or grossly disproportionate, contrary to the principles of fundamental justice (see Webcast of the Carter Hearing, October 15, 2014). Nevertheless, Carter raises important equality issues as well.