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Author: Jennifer Koshan Page 28 of 41

B.Sc., LL.B (Calgary), LL.M. (British Columbia).
Professor. Member of the Alberta Bar.
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Should They Stay or Should They Go? Occupy, The City and the Charter

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On November 11, 2011

In Constitutional, Municipal Law

PDF version: Should They Stay or Should They Go? Occupy, The City and the Charter

I’ve been to Zuccotti Park in New York City, the base camp of Occupy Wall Street, a few times this fall. The first time was in early October, the day before Mayor Michael Bloomberg told the protestors they had to de-occupy the park for a day to allow a clean-up. The de-occupation was resisted and never happened; the occupiers are still there, sometimes under tarps and in tents. Bloomberg and the City started out as relatively supportive of the occupation, but that support has waned over time with complaints from some nearby residents and business owners about the noise emanating from the Park, as well as concerns about unsanitary conditions, drug use, and assaults (Cara Buckley and Colin Moynihan, “Occupy Wall Street Protest Reaches a Crossroads“, New York Times, Nov. 4, 2011). Similar waning of support is occurring in Canadian cities. Vancouver has now brought an application for a court order that Occupy Vancouver take down their tents from the space in front of the Art Gallery after a 23 year old woman was found dead in her tent, the second apparent drug overdose in a week (Rod Mickleburgh, “Vancouver’s bid to end Occupy protest encampment stalls in court“, Globe and Mail, Nov. 9, 2011). In Calgary, City Council voted on November 7 to order the removal of Occupy Calgary tents from Olympic Plaza (CBC News, “City to remove Occupy Calgary tents in Olympic Plaza“, Nov. 7, 2011). What does the law say about all of this, and in particular, is the Globe and Mail’s recent editorial correct that “There is no constitutional right to Occupy“?

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State Responsibility for Protection against Domestic Violence: The Case of Jessica Lenahan (Gonzales)

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On October 10, 2011

In Human Rights, International Law, State Responses to Violence

PDF version: State Responsibility for Protection against Domestic Violence: The Case of Jessica Lenahan (Gonzales) 

Case considered: Jessica Lenahan (Gonzales) et al v United States, Case 12.626, Report No. 80/11 (Inter-American Commission on Human Rights, August 17, 2011)

On August 17, 2011, the Inter-American Commission on Human Rights (IACHR) released its merits report in the case of Jessica Lenahan (Gonzales) and the United States. The case concerns states’ positive obligations to use due diligence in responding to situations of domestic violence, and is the first such case involving the U.S. to be considered by the IACHR. In what many are calling a landmark decision, the IACHR found that the United States had breached several Articles of the American Declaration of the Rights and Duties of Man in relation to its obligations to Lenahan and her children. This post will summarize the IACHR decision and analyze the implications of the case in Canada, particularly in provinces such as Alberta which have civil domestic violence legislation.

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Leave to Appeal Granted in Street Preacher Case

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On October 4, 2011

In Constitutional, Municipal Law

PDF version: Leave to Appeal Granted in Street Preacher Case 

Case considered: R v Pawlowski, 2011 ABCA 267

On September 27, 2011, Justice Patricia Rowbotham of the Alberta Court of Appeal granted Artur Pawlowski leave to appeal certain elements of the decision in R v Pawlowski , 2011 ABQB 93 (per Justice R.J. Hall). (For a description of the facts, the laws that are being constitutionally challenged by Pawlowski, and the decision appealed from see here). Pawlowski’s challenges to City of Calgary bylaws restricting his street preaching activities were largely successful at the Alberta Provincial Court level (see R v Pawlowski, 2009 ABPC 62 and here), but he lost some ground in the City’s summary conviction appeal to the Court of Queen’s Bench. Pawlowski sought leave to appeal (1) the Queen’s Bench decision granting an extension to the City of Calgary to serve its Notice of Appeal on Pawlowski, and (2) his conviction under section 21 of the City’s Parks and Pathways Bylaw, 20M2003 (using an amplification system in a park), arguing that Justice Hall made several errors in his decision. It appears the City has not sought leave to cross-appeal Justice Hall’s holding that section 17(1)(a) of its Street Bylaw (placing material on a street) violated Pawlowski’s section 7 Charter rights because it was vague and overbroad. This post will review Justice Rowbotham’s decision to grant leave, and consider the issues for appeal in light of the Supreme Court of Canada’s recent judgment in Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, released on September 30, 2011.

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Consciousness and Consent in Sexual Assault Cases

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On June 17, 2011

In Criminal, State Responses to Violence, Supreme Court of Canada

PDF version: Consciousness and Consent in Sexual Assault Cases

Case considered: R. v. J.A., 2011 SCC 28

Can a person consent in advance to sexual activity that occurs while she is unconscious? A majority of the Supreme Court of Canada recently answered this question in the negative in R. v. J.A., 2011 SCC 28, taking the same approach as a majority of the Alberta Court of Appeal in R. v. Ashlee, 2006 ABCA 244. There were strong dissents in each case, however, indicating that the resolution of this issue is far from obvious for some judges. Also interesting is that judges on both sides of the issue frame their analyses in terms of the sexual autonomy of the complainant, and see their decisions as consistent (or at least not inconsistent) with the leading Supreme Court of Canada authority on consent, R. v. Ewanchuk, [1999] 1 S.C.R. 330. This comment will discuss the J.A. and Ashlee decisions and assess the merits of the different reasons for decision in light of the applicable statutory provisions and case law and the courts’ attention (or lack thereof) to context.

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Interim Report on Violence Against Aboriginal Women Released

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On April 29, 2011

In Aboriginal, International Law, State Responses to Violence

PDF version: Interim Report on Violence Against Aboriginal Women Released

Report Commented on: House of Commons Standing Committee on the Status of Women Interim Report, Call Into The Night: An Overview of Violence Against Aboriginal Women

Just before the House of Commons was dissolved for the election, the House of Commons Standing Committee on the Status of Women tabled its Interim Report, Call Into The Night: An Overview of Violence Against Aboriginal Women. In a news release, the Honourable Hedy Fry, Chair of the Committee, stated as follows: “It is rare that an all party Committee displays such unanimity, urgency and passion in getting its message out. All members were so astounded and overwhelmed by the systemic, institutionalised nature of the violence against Aboriginal women that we wanted to make sure, this time, that their voices will be heard; that their cries for help and the hope which these hopeless and desperate women had placed in us was not lost because of an election call.” I blogged on the Committee’s Edmonton hearing back in January, focusing on the lack of attention the study was receiving in the media. The silence around violence against Aboriginal women is also identified as a major issue in the Committee’s Interim Report (at 3-4).

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