Author: Jennifer Koshan Page 4 of 41

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

Grounding the Alberta Human Rights Act and the Proposal to Protect Vaccination Status

By Jennifer Koshan

On November 14, 2022

In Constitutional, Human Rights

By: Jennifer Koshan and Jonnette Watson Hamilton

Legislation Commented On: Alberta Human Rights Act, RSA 2000, c A-25.5

PDF Version: Grounding the Alberta Human Rights Act and the Proposal to Protect Vaccination Status

The Alberta Human Rights Act (AHRA) has been in the news lately as a result of Premier Danielle Smith’s announcement – consistent with her platform for leadership of the United Conservative Party and its promise of no more lockdowns – that she would seek an amendment to the AHRA to add vaccination status as a ground protected from discrimination (here, here and here). In her mandate letter to Minister of Justice Tyler Shandro, released on November 10, 2022, Smith included as her second priority – second only to a Sovereignty Act – the instruction to “take any necessary legislative or regulatory steps to prohibit discrimination on the basis of COVID-19 vaccination and/or booster status.”

A Comment on Bill 14, The Provincial Court (Sexual Awareness Training) Amendment Act, 2022

By Jennifer Koshan

On May 5, 2022

In Ethics and the Legal Profession, Provincial Court

By: Jennifer Koshan

Bill Commented On: Bill 14, the Provincial Court (Sexual Awareness Training) Amendment Act, 30^th Legislature, 3^rd Session (Alberta, 2022)

PDF Version: A Comment on Bill 14, The Provincial Court (Sexual Awareness Training) Amendment Act, 2022

On March 30, 2022, the Alberta government introduced Bill 14, the Provincial Court (Sexual Awareness Training) Amendment Act, 2022. This very short Bill imposes the requirement that new applicants for Alberta Provincial Court judicial appointments will have “completed education in sexual assault law and social context issues” before they can be appointed (see s 3 of the Bill, which will amend the Provincial Court Act, RSA 2000, c P-31, s 9.1(2)). People who are already on the appointment eligibility list when the Bill’s amendments come into force must undertake to complete this education after being appointed (s 3 of Bill 14, adding s 9.1(2.1) to the Provincial Court Act). Bill 14 passed Second Reading on April 20, 2022 and is now before the Committee of the Whole.

Choice vs Coercive Control: The Alberta Court of Appeal Decision in R v Naslund

By Jennifer Koshan

On April 29, 2022

In Criminal, Sentencing

By: Jennifer Koshan

PDF Version: Choice vs Coercive Control: The Alberta Court of Appeal Decision in R v Naslund

Case Commented On: R v Naslund, 2022 ABCA 6 (CanLII)

In January 2022, a majority of the Alberta Court of Appeal overturned a joint sentencing submission in the appeal of Helen Naslund, a woman who killed her husband after she sustained decades of his abuse. The sentencing decision of Justice Sterling Sanderman accepted the joint submission by the Crown and defence of 18 years imprisonment for the offence of manslaughter. This sentence was notorious for having imposed one of the longest known sentences for a survivor of intimate partner violence (IPV) who resorts to homicide. The sentencing decision was unreported, but quickly gained media attention and led to a petition to overturn the sentence imposed on Ms. Naslund. Writing for a majority of the Court of Appeal, Justice Sheila Greckol (Justice Kevin Feehan concurring, Justice Thomas Wakeling dissenting) reduced Ms. Naslund’s sentence to 9 years imprisonment.