Author: Jennifer Koshan Page 4 of 45

B.Sc., LL.B (Calgary), LL.M. (British Columbia).
Professor. Member of the Alberta Bar.
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By: Janet Mosher, Shushanna Harris, Jennifer Koshan, and Wanda Wiegers

Bill Commented On: Bill C-332, An Act to amend the Criminal Code (controlling or coercive conduct), First Session, Forty-fourth Parliament (2023)

PDF Version: Submission to Justice Canada on the Criminalization of Coercive Control

Justice Canada has been holding an engagement process on the issue of whether an offence of coercive control should be added to the Criminal Code, RSC 1985, c C-46. This offence has been proposed in a series of private members bills, most recently, Bill C-332. Our submission (link below) argues that it is imperative that actors in all legal domains acquire a nuanced and contextual understanding of coercive control derived from an intersectional analysis that attends to how multiple systems of oppression interact to shape the tactics of coercion and control. However, we do not support the criminalization of coercive control, either as a standalone offence or within a broader offence of domestic abuse/violence. We argue that it is the former approach – the acquisition of deep and contextualized knowledge by legal system actors – and not criminalization, that holds promise in enhancing safety for women and children.

Torts and Family Violence: Ahluwalia v Ahluwalia

By Jennifer Koshan

On September 15, 2023

In Family, Torts

By: Jennifer Koshan and Deanne Sowter

Case Commented On: Ahluwalia v Ahluwalia, 2022 ONSC 1303 (Can LII); 2023 ONCA 476 (CanLII)

PDF Version: Torts and Family Violence: Ahluwalia v Ahluwalia

Intimate partner violence (IPV) takes many forms, all of which cause harm to survivors (who are disproportionately women and children). In August, the Minister of Justice and Attorney General of Canada declared that gender-based violence is an epidemic. However, only certain forms of IPV were subject to legal sanction historically – primarily physical and sexual abuse, although sexual assault against a spouse was only criminalized in 1983 (see Criminal Code, RSC 1985, c C-46, s 278). More recently, beginning in the 1970s and 80s, emotional and financial abuse and coercive control have been recognized as insidious forms of IPV. Coercive control focuses on patterns rather than discrete incidents of abuse, and on the impact on the survivor’s autonomy rather than physical injuries (see Evan Stark, Coercive Control: How Men Entrap Women in Personal Life (New York: Oxford University Press, 2007)). Although coercive control is not currently criminalized in Canada (unlike some other common law jurisdictions such as England and Wales), broad definitions of IPV that include coercive control and emotional and financial abuse are now included in many Canadian laws. There are laws declaring IPV to be relevant to parenting decisions (including relocation), protection orders, early termination of leases, employment leave, and other legal remedies (for a comparison of these laws across Canada, see here). Gaps in the law’s recognition of IPV remain, however. For example, in Alberta, definitions of family violence in the Family Law Act, SA 2003, c F-4.5, and Protection Against Family Violence Act, RSA 2000, c P-27, do not yet include emotional and financial abuse or coercive control (for discussion see e.g. here). Moreover, as we discuss in this post, tort law has inconsistently provided avenues of economic redress for the harms caused by IPV.

Mind the Gap: A New Tort of Harassment in Alberta

By Jennifer Koshan

On July 31, 2023

In Torts

By: Jennifer Koshan

Case Commented On: Alberta Health Services v Johnston, 2023 ABKB 209 (CanLII)

PDF Version: Mind the Gap: A New Tort of Harassment in Alberta

The law of torts is as old as the mythical reasonable man, but courts continue to create new torts that respond to changing social circumstances and formally recognize novel legal wrongs. In recent years, courts in Canada have accepted new torts such as intrusion upon seclusion (Jones v Tsige, 2012 ONCA 32 (Can LII)), public disclosure of private facts (ES v Shillington, 2021 ABQB 739 (Can LII)), family violence (Ahluwalia v Ahluwalia, 2022 ONSC 1303 (CanLII)), and harassment (Alberta Health Services v Johnston, 2023 ABKB 209 (CanLII)). In the first three cases, courts focused on gaps in existing legal doctrine and remedies as the basis for creating the new torts. In the fourth case, Johnston, Justice Colin Feasby decided that a tort of harassment was worthy of recognition, in part to explain the use of an existing remedy – common law restraining orders. His analysis is the subject of this post; a subsequent post will discuss Ahluwalia’s creation of the tort of family violence, which was recently overturned by the Ontario Court of Appeal (see 2023 ONCA 476 (CanLII)).

Webber Academy II: Balancing Religious Discrimination and Freedom from Religion in the Provision of Educational Services

By Jennifer Koshan

On July 6, 2023

In Constitutional, Human Rights

By: Howard Kislowicz and Jennifer Koshan

Case Commented On: Webber Academy Foundation v Alberta (Human Rights Commission), 2023 ABCA 194 (CanLII) (Webber Academy II)

PDF Version: Webber Academy II: Balancing Religious Discrimination and Freedom from Religion in the Provision of Educational Services

In the 2011-12 school year, Sarmad Amir and Naman Siddique (“the Students”) were denied prayer space at Webber Academy, where they had recently enrolled as grade 9/10 students. As observant Sunni Muslims, they prayed five times a day, which included school hours at some times of the year. Staff initially allowed the Students to pray in empty offices or classrooms; however, when the head of Webber Academy, Dr. Neil Webber, became aware of the situation, he informed the Students’ parents that prayers could only be performed off campus, or on campus without bowing or kneeling. The explanation was that Webber Academy did not provide physical accommodations for students of other religions to practice their faith, and that the Academy is a non-denominational school. The Students’ parents were also advised that because they had not followed the school’s policies, the Students would not be enrolled for the following year.

Commissioner Trussler Should Recommend Sanctions Against Premier Smith

By Jennifer Koshan

On June 30, 2023

In Ethics and the Legal Profession

By: Nigel Bankes and Jennifer Koshan

Matter Commented On: Conflicts of Interest Act, RSA 2000, c C-23 and the Report on Allegations involving Premier Danielle Smith

PDF Version: Commissioner Trussler Should Recommend Sanctions Against Premier Smith

In her report of May 17, 2023, Ethics Commissioner Marguerite Trussler concluded that Premier Danielle Smith had violated section 3 of the Conflicts of Interest Act, RSA 2000, c C-23, when she contacted the Minister of Justice and Attorney General within hours of taking a call from Artur Pawlowski, where she discussed the criminal charges he was facing. However, the Commissioner went on to note that at that point she was making no recommendations “with respect to sanctions against the Premier for consideration of the Legislative Assembly of Alberta” but that she reserved “the right to make recommendations once the Legislative Assembly is back in session” (at 16). Commissioner Trussler also made two additional recommendations. The first was that “[a]ll new Members of the Legislative Assembly of Alberta attend mandatory training upon election about the structure of Canadian government and the roles of the three branches of government” (at 16). The second was that the Legislative Assembly “consider whether to amend the Conflicts of Interest Act to provide for a stay on any ongoing investigation from the time that the writ drops for an election until the election results are certified” (at 16).