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.

#Don’tDisbelieveHer: Towards Recognition of Myths and Stereotypes about Intimate Partner Violence at the Supreme Court of Canada

By: Jennifer Koshan

PDF Version: #Don’tDisbelieveHer: Towards Recognition of Myths and Stereotypes about Intimate Partner Violence at the Supreme Court of Canada 

Case Commented On: Barendregt v Grebliunas, 2021 BCCA 11 (CanLII); appeal allowed, 2021 CanLII 124350 (SCC; written reasons to follow)

Over the last 20 years, there has been significant progress in the judicial recognition of rape myths and stereotypes (see e.g., R v Seaboyer; R v Gayme, 1991 CanLII 76 (SCC), [1991] 2 SCR 577 and more recently, R v Barton, 2019 SCC 33 (CanLII)). Federally appointed judges must now undertake to participate in education on sexual violence and its social context, but no similar duty exists for judicial education about intimate partner violence (IPV) (see a discussion here). Unfortunately, myths and stereotypes about IPV are not uncommon in Canadian case law. To name a few, survivors of IPV, who are disproportionately women, face allegations that they have lied about or exaggerated IPV out of vengeance, jealousy, or to gain an advantage in family law proceedings; that IPV ends at separation or is irrelevant unless it is physical; and that exposure to IPV has no impact on children (see e.g., here at 46-47). Allegations like this have been called out in feminist socio-legal literature for decades as being grounded in myths and stereotypes, but there are only a handful of cases in which the Supreme Court of Canada has explicitly recognized myths and stereotypes about IPV. Continue reading →

Women’s Charter Equality before the Supreme Court of Canada: Where Do We Stand as of International Women’s Day 2022?

By: Jonnette Watson Hamilton & Jennifer Koshan

PDF Version: Women’s Charter Equality before the Supreme Court of Canada: Where Do We Stand as of International Women’s Day 2022?

Matter Commented On: International Women’s Day 2022

March 8 is International Women’s Day (IWD), a day on which we assess the progress towards achieving women’s rights. The theme this year is “Break the Bias.” We are encouraged to “Imagine a gender equal world. A world free of bias, stereotypes, and discrimination. A world that is diverse, equitable, and inclusive. A world where difference is valued and celebrated.” When considering women’s rights under Canadian law, we tend to use the lenses of discrimination and equality as the umbrella words rather than bias. Bias is certainly one form of discrimination, but discrimination also includes the harms of stereotyping, prejudice, and disadvantage. The right to equality and to be free from discrimination based on protected grounds is guaranteed under s 15 of the Canadian Charter of Rights and Freedoms, Canada’s constitutional equality guarantee. Continue reading →

Frost on the Constitutional Windshield: Challenge to Critical Infrastructure Defence Act Struck by Alberta Court of Appeal

By: Jennifer Koshan, Lisa Silver and Jonnette Watson Hamilton

PDF Version: Frost on the Constitutional Windshield: Challenge to Critical Infrastructure Defence Act Struck by Alberta Court of Appeal

Case Commented On: Alberta Union of Public Employees v Her Majesty the Queen (Alberta), 2021 ABCA 416 (CanLII) (AUPE (ABCA))

The Critical Infrastructure Defence Act, SA 2020, c C-32.7 (CIDA) has been in the news recently, with the truckers’ blockade at Coutts, Alberta causing some to question the lack of enforcement of available legal sanctions. CIDA prohibits entering on to, damaging, or obstructing essential infrastructure in the province, amongst other activities. Essential infrastructure is broadly defined and includes highways and – as of October 2021– health care facilities (Critical Infrastructure Defence Regulation, Alta Reg 169/2021; for a discussion of that addition see here). However, it appears that no charges have been laid under CIDA to date despite several disruptive COVID-19 related protests on and blockades of essential infrastructure. Continue reading →

Judging Family Violence: Recommendations for Judicial Practices and Guidelines in Family Violence Cases

By: Deanne Sowter and Jennifer Koshan

PDF Version: Judging Family Violence: Recommendations for Judicial Practices and Guidelines in Family Violence Cases

There have been some recent legal developments that compel us to consider the role and responsibilities of judges in cases involving family violence. First, amendments to the Divorce Act, RSC 1985, c 3 (2nd Supp), came into effect in March 2021 and the Act now stipulates that family violence is a factor relevant to the best interests of the child. Family violence is finally recognized federally as germane to judicial decisions on parenting, though it is not explicitly recognized as relevant to whether negotiated settlements are an appropriate expectation, which has important implications for the judge’s role in this area. Second, there has been heightened attention to judicial education in the context of gender-based violence, most directly through Bill C-3 (Second Session, Forty-third Parliament). This Bill received Royal Assent in May 2021 and revised the Judges Act, RSC 1985, c J-1, such that in order to be eligible for appointment to superior courts, prospective judges undertake to participate in continuing education on sexual assault law and social context (s 3(b)). While limited to sexual violence, these amendments raise issues about judicial education that are relevant in the family violence context as well. Third, the Canadian Judicial Council (CJC) released its newly revised Ethical Principles for Judges (EPJ) in June 2021. The EPJ do not explicitly reference family violence, which is a concern, but there are also opportunities to interpret the EPJ to ensure that family violence considerations are front of mind for judges hearing cases or conducting judicial mediation. In this post, we consider these developments and make recommendations for judicial practices and guidelines that better reflect the gravity and context of family violence. Continue reading →

Family Violence and Family Law in Alberta: The Need for Legislative Reform and Expansive Statutory Interpretation

By: Jennifer Koshan

PDF Version: Family Violence and Family Law in Alberta: The Need for Legislative Reform and Expansive Statutory Interpretation

Legislation Commented On: Family Law Act, SA 2003, c F-4.5 (CanLII)

November is Family Violence Protection Month in Alberta, and this provides a good opportunity to reflect on the laws that address family violence in this province. I have written previously on the intersections amongst laws in Alberta that apply in the context of family violence, as well as how they compare to family violence laws in other jurisdictions (see here and here). Alberta has made good progress in its response to family violence in some areas – for example, residential tenancy law and occupational health and safety law – but there are other areas where we are falling behind, including family law. Continue reading →