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.

Family Violence Cases in Alberta: A Snapshot

Cases Considered: M.E.B. v. C.W.M., 2008 ABQB 484; N.L.B. v. K.G.C., 2008 ABQB 485; R. v. M.S., 2008 ABQB 488; K.F. v. A.F., 2008 ABQB 496.

PDF Version: Family Violence Cases in Alberta: A Snapshot

In a one week period in August, four decisions concerning family violence were posted on the Alberta Courts website, all written by Justice Donald Lee of the Alberta Court of Queen’s Bench. This is certainly the highest number of cases posted in this area in one week since ABlawg began systematically reviewing Alberta court decisions in the fall of 2007. Three of the four decisions (M.E.B. v. C.W.M., 2008 ABQB 484; N.L.B. v. K.G.C., 2008 ABQB 485; and K.F. v. A.F., 2008 ABQB 496) arose under Alberta’s Protection Against Family Violence Act, R.S.A. 2000, c. P-27 (PAFVA), and the fourth dealt with a criminal matter (R. v. M.S., 2008 ABQB 488). This post will consider whether these cases, even though they are a very small sample, are representative of family violence matters coming before the Alberta courts. Statistics Canada undergoes a similar exercise each year when it gathers statistics on women’s shelters in a one day period as a snapshot of overall trends (see for example http://dsp-psd.pwgsc.gc.ca/collection_2007/statcan/85-002-X/85-002-XIE2007004.pdf).

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La Belle Province? Developments in Alberta Language Rights Cases

Cases Considered: R. v. Caron, 2008 ABPC 232

Caron v. Alberta (Human Rights and Citizenship Commission), 2008 ABCA 272.

PDF Version: La Belle Province? Developments in Alberta Language Rights Cases

On August 18, 2008 the Alberta Provincial Court posted its long awaited decision in the case of Gilles Caron. Caron was charged under an Alberta regulation with making an unsafe left turn, and sought to defend on the basis of a violation of his language rights, arguing that Alberta legislation is invalid because it is not enacted in both English and French. His case was initially fought on the issue of whether he was entitled to an interim costs award to permit him to pursue his constitutional challenge in the absence of funding from the Court Challenges program (see my earlier posts on this issue: Special Enough? Interim Costs and Access to Justice and Stay Of Interim Funding Denied In Language Rights Case). In a 96 page decision written in French, Judge L.J. Wenden of the Alberta Provincial Court found in favour of Caron’s language rights claim and accordingly dismissed his traffic offence (2008 ABPC 232).

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No Costs Awarded for Failure to Prosecute Aboriginal Fishing Rights Case

Cases Considered: R. v. Nest, 2008 ABQB 323

PDF Version:  No Costs Awarded for Failure to Prosecute Aboriginal Fishing Rights Case

Donald Marshall, David Milgard, and Guy Paul Morin are the troika of wrongful conviction cases in Canada, bringing to mind overzealous prosecution of innocent persons and the compensation required to right those wrongs. But what about the opposite scenario, where the failure to prosecute is alleged to constitute a rights infringement deserving of compensation? This was the argument made by the claimants in a recent Alberta case.

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Funding Restored for Court Challenges Language Rights Programs

In 2 previous posts (see here and here) I discussed the application of Gilles Caron for an interim costs order to fund his language rights claim against the Alberta government. This application was required in large part because of the cancellation of the Court Challenges Program (CCP) by the Harper government in 2006. In a recent development described in an excellent post by Shelagh Day on rabble.ca the Fédération des communautés francophones et acadienne (FCFA) has settled its claim against the federal government for the cancellation of the CCP. Part of the settlement agreement includes the reinstatement of funding for minority language rights litigation. However, in spite of the fact that the FCFA’s claim was to restore funding for both the language rights and equality rights components of the CCP, the government only restored funding to the former. The FCFA’s victory is welcome, and may permit claims like that of Caron to proceed in the future without interim costs applications. However, there is a huge gap left by the continued inability of equality rights claimants to seek funding for their litigation. Will it take a costly lawsuit on the equality rights side to see funding restored?

Infidelity Does Not Necessarily Amount to Provocation

Cases Considered: R. v. Tran, 2008 ABCA 209

PDF Version:  Infidelity Does Not Necessarily Amount to Provocation

Domestic violence remains a terrible problem in Canadian society, and Alberta has one of the highest rates in the country (Karen Mihorean, Family Violence in Canada: A Statistical Profile 2005 (Ottawa: Minister of Industry, 2005) at 15). Over the past 30 years, legislators, courts and law enforcement officers have generally progressed from treating such violence as a private matter, to confirming that it is as serious as other violence, and finally, to considering the family context as an aggravating circumstance. When domestic violence leads to death, however, perpetrators can argue a provocation defence just as they could in any murder trial. If successfully argued, provocation will reduce a charge of murder to manslaughter. In its recent decision in R. v. Tran, the Alberta Court of Appeal held that infidelity will not necessarily lead to a successful provocation defence in such cases.

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