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.

Blind Justice? Accommodating Offenders with Disabilities

PDF Version: Blind Justice? Accommodating Offenders with Disabilities

Case commented on: R v Myette, 2013 ABCA 371

To what degree should courts accommodate the circumstances of persons with disabilities whose crimes attract jail sentences? The Alberta Court of Appeal recently divided on this issue in R v Myette, 2013 ABCA 371. At the original sentencing hearing, Judge Heather Lamoureux found that a jail sentence would be “unduly harsh” in light of Myette’s visual impairment, and ordered a suspended sentence of 18 months for sexual assault and common assault (2013 ABPC 89 at para 16). A majority of the Court of Appeal (Justices Constance Hunt and Jack Watson) found her approach to be erroneous, and substituted a sentence of 90 days in jail, to be served intermittently on weekends.  Justice Peter Martin, writing in dissent, would have dismissed the Crown’s appeal. This post will review the various decisions in this case with a focus on whether sentencing decisions are the proper forum for accommodating the circumstances of offenders with disabilities.

Continue reading →

Order in the Court! The Use of Electronic Devices in Alberta Courts and Freedom of Expression

PDF Version: Order in the Court! The Use of Electronic Devices in Alberta Courts and Freedom of Expression

Policies commented on:  Policy on the Use of Electronic Devices in Courtrooms, Alberta Court of Appeal, October 28, 2013; Electronic and Wireless Devices Policy, Court of Queen’s Bench of Alberta, January 2012

Last week the Alberta Court of Appeal (ABCA) issued a Notice to the Profession attaching its Policy on the Use of Electronic Devices in Courtrooms. The Policy applies to all ABCA courtrooms, and prohibits use of electronic devices in those courtrooms by members of the public. For those persons, “Electronic devices … must be turned off and kept out of sight” (section 3). Only lawyers and “accredited media members” are permitted to use such devices in ABCA courtrooms (section 4), subject to certain restrictions. Anyone who uses an electronic device contrary to the Policy may face sanctions including being required to leave the courtroom or declared in civil contempt of court (section 12). The Alberta Court of Queen’s Bench (ABQB) has a similar Electronic and Wireless Devices Policy, requiring that all electronic devices be turned off in its courtrooms, but exempting counsel and some members of the media from that rule. The Provincial Court of Alberta (ABPC) has adopted the ABQB Policy. This post will describe the details of these policies, and will examine whether the policies are consistent with freedom of expression as protected by section 2(b) of the Canadian Charter of Rights and Freedoms.

Continue reading →

The Vriend Case 15 Years Later

By: Jennifer Koshan

PDF Version: The Vriend Case 15 Years Later

Case and Legislation Commented On: Vriend v Alberta, [1998] 1 SCR 493; Alberta Human Rights Act, RSA 2000, c A-25.5

This year marks the 15th anniversary of the Supreme Court of Canada decision in Vriend v Alberta, [1998] 1 SCR 493 [Vriend] in which the Court unanimously held that the lack of protection for discrimination based on sexual orientation in Alberta’s human rights legislation was an unconstitutional violation of Charter equality rights (for a previous post on the Vriend decision by Linda McKay Panos, see here). To celebrate the anniversary Delwin Vriend visited Alberta this week, and his visit included participation in a public forum organized by the Sheldon Chumir Foundation for Ethics in Leadership, as well as a visit to my human rights class at the law school.

Continue reading →

The Quebec Secession Reference and the Proposed Charter of Quebec Values

PDF Version: The Quebec Secession Reference and the Proposed Charter of Quebec Values

Case/Policy considered: Reference re Secession of Quebec, [1998] 2 SCR 217; Charter of Quebec Values

It’s as if Pauline Marois and her government knew we would be discussing the Quebec Secession Reference case in constitutional law this week when they finally released their plans for a Charter of Quebec Values on September 10. The Quebec Secession Reference case famously decided that Quebec did not have the unilateral right to secede from Canada under domestic or international law. It is also taught by many constitutional law professors as our first case, given its important pronouncements on sources of constitutional law and Canada’s constitutional history and values. The constitutional values – actually unwritten principles of constitutional law – that the Supreme Court found to be relevant in the context of Quebec secession were federalism, democracy, constitutionalism and the rule of law, and respect for minorities (at para 32). The Court’s elaboration on these principles takes on a new relevance in light of Quebec’s proposed Charter.

Continue reading →

Domestic Violence Cases: A Summer Snapshot

PDF Version: Domestic Violence Cases: A Summer Snapshot

Cases commented on: R v Hooker, 2013 ABQB 271; R v Bandesha, 2013 ABCA 255

There were a number of reported Alberta cases involving domestic violence this summer. The decisions collectively illustrate the broad range of issues that can arise in domestic violence cases – for example, constitutional, criminal and family law issues – some of which may now be heard by specialized domestic violence courts. They also show a range of sensitivities on the part of judges to the realities of domestic violence. In this post I will comment on two of the cases, both arising in the criminal context, and in a subsequent post I will comment on two cases arising in the family law context.

Continue reading →