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Author: Jennifer Koshan Page 3 of 45

B.Sc., LL.B (Calgary), LL.M. (British Columbia).
Professor. Member of the Alberta Bar.
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The Dickson Decision, UNDRIP, and the Federal UNDRIP Act

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On April 18, 2024

In Aboriginal, Constitutional, Indigenous

By: Nigel Bankes and Jennifer Koshan

Decision Commented On: Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (CanLII)

PDF Version: The Dickson Decision, UNDRIP, and the Federal UNDRIP Act

This post is part of continuing ABlawg commentary on the approach of the courts to legislation implementing the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). That commentary includes the decision of the Supreme Court of British Columbia in Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 (CanLII) (ABlawg post here) and, most importantly, the Supreme Court of Canada’s decision in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII) (FNIM Reference) (ABlawg post here). This post is also the first of multiple posts that ABlawg anticipates on the Dickson decision.

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Bill C-332 and the Criminalization of Coercive Control

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On March 18, 2024

In Criminal, Law Reform

By: Jennifer Koshan

Matter Commented On: Standing Committee on Justice and Human Rights, Study of Bill C-332, An Act to amend the Criminal Code (controlling or coercive conduct), 44th Parliament, 1st session

PDF Version: Bill C-332 and the Criminalization of Coercive Control

On February 26, 2024, I appeared before the federal Standing Committee on Justice and Human Rights (JUST), which is currently studying Bill C-332, An Act to amend the Criminal Code (controlling or coercive conduct).

After hearing from a number of witnesses speaking in favour of, and cautioning against, the criminalization of coercive control (as well as taking positions in between), JUST begins its clause-by-clause study of the Bill today. This post sets out my prepared five-minute opening remarks to JUST, which were followed by a question and answer period. A recording of the hearing is available here and the minutes are available here. In addition, I submitted a 10-page written brief to JUST with colleagues Janet Mosher, Shushanna Harris, and Wanda Wiegers that is available here.

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Seismic Shift: The Notwithstanding Clause and Litigation on the Rights of Trans and Gender Diverse Youth

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On February 23, 2024

In Constitutional, Human Rights, Provincial Court, Youth and the Law

By: Jennifer Koshan

Case Commented On: UR Pride Centre for Sexuality and Gender Diversity v Government of Saskatchewan, 2024 SKKB 23 (CanLII)

PDF Version: Seismic Shift: The Notwithstanding Clause and Litigation on the Rights of Trans and Gender Diverse Youth

ABlawg has been following the introduction of government restrictions aimed at trans and gender diverse youth since last fall (see here and here). The latest development comes from Saskatchewan, where on February 16, the Court of King’s Bench permitted a constitutional challenge by UR Pride to proceed despite the government having invoked the notwithstanding clause in section 33 of the Canadian Charter of Rights and Freedoms.

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What Does La Rose Tell Us About Climate Change Litigation in Canada?

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On February 2, 2024

In Constitutional, Environmental, Equality

By: Nigel Bankes, Jennifer Koshan, Jonnette Watson Hamilton, and Martin Olszynski

Case Commented On: La Rose v Canada, 2023 FCA 241 (CanLII)

PDF Version: What Does La Rose Tell Us About Climate Change Litigation in Canada?

The last decade has seen an explosion of domestic climate change litigation around the world and an equally rich body of academic literature examining the case law from a variety of disciplinary perspectives. The Sabin Center for Climate Change Law maintains an excellent data base covering these developments. Important cases in other jurisdictions include the Urgenda decision (Urgenda v Netherlands (2019)) and Shell decision (Milieudefensie et al v Shell (2021)) in the Netherlands, and the 2021 decision of the German constitutional court (Neubauer et al v Germany). Australian environmental non-governmental organizations (ENGOs) have been particularly active in bringing climate change issues before the courts, especially in the context of proposed natural gas and coal projects, most famously in the Sharma case (Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560, appeal allowed, [2022] FCAFC 35).

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Family Violence Torts and Their Limits in Alberta

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On December 20, 2023

In Family, Provincial Court, Torts

By: Jennifer Koshan

Case Commented On: Colenutt v Colenutt, 2023 ABKB 562 (CanLII)

PDF Version: Family Violence Torts and Their Limits in Alberta

In September 2023, Deanne Sowter and I wrote an ABlawg post on the tort of family violence, which was initially recognized as a new tort by the Ontario Superior Court and then rejected by the Court of Appeal, along with the alternative tort of coercive control (see Ahluwalia v Ahluwalia, 2022 ONSC 1303 (CanLII) (Ahluwalia ONSC); 2023 ONCA 476 (CanLII) (Ahluwalia ONCA)). An Alberta court has now followed the Ontario Court of Appeal in holding that the torts of family violence and coercive control should not be accepted in this province. This post considers Justice Debra Yungwirth’s reasons in Colenutt v Colenutt, 2023 ABKB 562 (CanLII), including limitations issues that arose in the case and the need for legislative reform.

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