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Category: Equality Page 4 of 5

R v Theriault: A Case of Epistemic Injustice

By: Brynne Harding

PDF Version: R v Theriault: A Case of Epistemic Injustice

Case Commented On: R v Theriault, 2020 ONSC 3317 (CanLII)

On the morning of Friday, June 26, 2020 – among more than 20,000 other people – I tuned into the YouTube live stream on which Ontario Superior Court Justice Joseph DiLuca gave his judgment in the criminal trials of Michael and Christian Theriault (R v Theriault, 2020 ONSC 3317 (CanLII)). The brothers, one of whom is a Toronto police officer, stood accused of assault and aggravated assault on Dafonte Miller, a young Black man, who lost his eye in their clash.

Const. Michael Theriault was acquitted of aggravated assault and attempting to obstruct justice in the case, and was convicted only of the lesser charge of simple assault. His brother Christian Theriault was acquitted of all charges. On August 6, 2020, it was announced that the Crown has appealed the acquittals.

The Theriault acquittals unsettled me – persistently, in the weeks to follow. The accused were acquitted of aggravated assault, despite strong Crown evidence, and fact findings of the court, that the two grown white men had gratuitously and violently beaten Miller, a Black teenager. Nearly as unsettling was the fact that the trial judge had insisted, capably, and with sophistication, that he understood what he called the “racialized context” of the encounter (at para 11). The objective of this post is to explore the apparent contradiction in Theriault between the verdicts, on one hand, and Justice DiLuca’s claim that he considered the racialized context, on the other. This post does not purport to be an appellate brief for the Crown, although some argument relates to potential legal and factual errors in Theriault.

Sex Offender Registries and Persons Found Not Criminally Responsible: Exit Ramps and Equality

By: Jennifer Koshan and Joe Koshan

PDF Version: Sex Offender Registries and Persons Found Not Criminally Responsible: Exit Ramps and Equality

Case Commented On: G. v. Ontario (Attorney General), 2019 ONCA 264 (CanLII); leave to appeal granted, 2019 CanLII 89651 (SCC)

On February 20, 2020, we had the opportunity to watch the Supreme Court of Canada hearing in G. v. Ontario (Attorney General) in Ottawa (webcast available here). The Supreme Court was closed to public hearings in mid-March as a result of COVID-19, and we feel very fortunate to have had the chance to attend this hearing in person.

The case concerns the issue of whether the provincial and federal sex offender registries created by Christopher’s Law (Sex Offender Registry), 2000, SO 2000, c 1 and the Sex Offender Information Registration Act, SC 2004, c 10 (SOIRA) violate the Charter rights of persons found not criminally responsible on account of mental disorder (NCRMD). The Charter claimant, G, was found NCRMD on two counts of sexual assault, one count of unlawful confinement, and one count of harassment against his then-wife in June 2002. He received an absolute discharge from the Ontario Review Board (the body responsible for handling cases of persons found NCRMD) in August 2003. Despite this discharge, G was required to register with the Ontario and federal sex offender registries and was subject to their requirements for life. Persons who are found NCRMD have no ability to remove themselves from the Ontario registry at any point and can only apply for removal from the federal registry after 20 years. However, persons who are found guilty of sexual offences but receive a discharge at the time of sentencing are not required to register either provincially or federally, and persons who are convicted of sexual offences and later receive a pardon or record suspension may have their names deleted from the provincial registry. Neither option is available to persons found NCRMD.

Law Needs Feminism Because…

By: Jennifer Koshan

PDF Version: Law Needs Feminism Because…

Event Commented On: Law Needs Feminism Because, 2020 National Forum x Calgary

Law Needs Feminism Because (LNFB) is a Canadian-based collective made up of law students and legal professionals that undertakes advocacy around issues of intersectional feminism. Intersectional feminism, a term first coined by Kimberlé Crenshaw, embraces the idea that women may be disadvantaged through intersecting axes of oppression such as gender and race. LNFB advocates on issues of intersectional feminism through an annual photo campaign at law schools across the country, allowing students, faculty and staff to share their perspectives and lived experiences of disadvantage based on gender and other grounds. The University of Calgary Faculty of Law has participated in this photo campaign three times now. LNFB also holds an annual National Forum at a Canadian law school, and its fourth annual Forum is taking place in Calgary March 6 and 7, 2020. Our Faculty’s intrepid student group, the Calgary Women Studying Law Association (CWSLA), is hosting the Forum with the theme of Innovative Intersectionality. The Forum will bring together law students (and those in related disciplines) from across Canada along with legal and other professionals and members of the public more broadly.

ABlawg readers who are interested in these issues are encouraged to attend the LNFB Forum. Registration for the Forum and its many interesting workshops is available here and the schedule is available here. For those who can’t attend, ABlawg will be featuring a series of blog posts on the Forum in the weeks to come.


This post may be cited as: Jennifer Koshan, “Law Needs Feminsm Because…” (March 6, 2020), online: ABlawg, http://ablawg.ca/wp-content/uploads/2018/07/Blog_JK_LNFB.pdf

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(Dis)Proving Racism: A Rebuttal to Klippenstein’s Critical Review of the Law Society of Ontario’s Report on Challenges Facing Racialized Licensees

By: Joshua Sealy-Harrington

PDF Version: (Dis)Proving Racism: A Rebuttal to Klippenstein’s Critical Review of the Law Society of Ontario’s Report on Challenges Facing Racialized Licensees

Document Commented On: Murray Klippenstein, Critical Review of the Challenges Report

On January 8, 2020, Murray Klippenstein published a Critical Review of the Challenges Report (Critical Review). In it, he argues that the Law Society of Ontario’s (LSO’s) March 11, 2014 final report on Challenges Facing Racialized Licensees (Challenges Report) should be rejected because it is “driven by a particular political ideology” and “methodologically invalid” (at 15). And, as Mr. Klippenstein indicates in his Critical Review, his ultimate purpose is undoing LSO initiatives geared towards promoting equality in the legal profession—modest initiatives which, somehow, receive adamant opposition from certain members of the legal profession.

Discrimination Justified in Elder Advocates of Alberta Society Class Action

By: Jonnette Watson Hamilton and Jennifer Koshan

PDF Version: Discrimination Justified in Elder Advocates of Alberta Society Class Action

Case Commented On: Elder Advocates of Alberta Society v Alberta, 2019 ABCA 342 (Can LII)

The Alberta Court of Appeal has dismissed the appeal of the Elder Advocates of Alberta Society from the January 2018 judgment of Justice June Ross, which had dismissed their class-action challenging accommodation fees charged to long-term care residents by the province. Accommodation fees cover expenses such as meals, housekeeping, and building maintenance, and currently range from $55.90 per day for a standard shared room to $68.00 per day for a private room. The essence of the class action claim was that long-term care residents are subsidizing their health care costs, something no other users of the Alberta health care system are required to do.

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