Category Archives: State Responses to Violence

Judicial Interventions and Rape Myths: Differing Approaches at the Alberta Court of Appeal

By: Jennifer Koshan

PDF Version: Judicial Interventions and Rape Myths: Differing Approaches at the Alberta Court of Appeal

Case Commented On: R v Schmaltz, 2015 ABCA 4

A decision from the Alberta Court of Appeal has garnered attention from the media (see here and here) for its contribution to recent debates about rape culture and rape myths. In the context of discussions about Ghomeshi (see here and here), Cosby, Dalhousie and the ongoing challenges that prevent many women from coming forward with complaints about sexual assault and harassment, the Court of Appeal has weighed in on the role that judges can play in curtailing the perpetuation of rape myths in the courtroom.  In R v Schmaltz, 2015 ABCA 4, the majority (Justices Russell Brown and Thomas Wakeling) ordered a new trial based on their view that the trial judge had gone too far in limiting cross-examination of the complainant. Justice Marina Paperny, writing in dissent, would have dismissed the appeal and upheld the conviction of the accused.

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National Day of Remembrance and Action on Violence Against Women and the Failed Challenge to the Repeal of the Long Gun Registry

By Jennifer Koshan

PDF Version: National Day of Remembrance and Action on Violence Against Women and the Failed Challenge to the Repeal of the Long Gun Registry

Case Commented On: Barbra Schlifer Commemorative Clinic v Canada, 2014 ONSC 5140 (CanLII)

Yesterday the University of Calgary marked the 25th National Day of Remembrance and Action on Violence Against Women with two events: the annual ceremony held by the Women’s Centre, and our own ceremony in the Faculty of Law. Our event involved strong components of both remembrance and action. We recognized the 20th anniversary of the installation of Teresa Posyniak’s beautiful and haunting sculpture “Lest We Forget” in the Faculty. The sculpture honours women who were killed by men, including Aboriginal women, sex trade workers and the 14 women of L’Ecole Polytechnique. Teresa was present to share her reflections on creating the sculpture, the progress we have made on issues of violence against women over the last 20 years, and the work we still have to do. In terms of action, we also heard from Michelle Robinson, a Yellowknife Dene woman who spoke powerfully about the ongoing colonial violence experienced by indigenous women and indigenous peoples in Canada, and of the actions that we can and must all take to respond to this violence. Dean Ian Holloway stressed the importance of hosting the sculpture in our faculty as a reminder to reflect on the meaning of justice.

That brings me to the case I wish to comment upon in this post. Three years ago, I marked the National Day of Remembrance with an ABlawg post inquiring into whether the federal government’s repeal of the long gun registry was a violation of its obligations concerning violence against women. There has now been litigation on that question, and the applicant Barbra Schlifer Commemorative Clinic was unsuccessful in arguing that the repeal violated sections 7 and 15 of the Charter (Barbra Schlifer Commemorative Clinic v Canada, 2014 ONSC 5140 (CanLII)).

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Sentencing in an Unusual Domestic Violence Case

By: Jennifer Koshan

PDF Version: Sentencing in an Unusual Domestic Violence Case

Case Commented On: R v Hernandez, 2014 ABCA 311

The most recent edition of Eugene Meehan’s Supreme Advocacy newsletter lists R v Hernandez, 2014 ABCA 311, as the Court of Appeal case of the week nation-wide. The case involves a Crown sentence appeal in the domestic violence context. Sadly, domestic violence cases are not uncommon, so what is so remarkable about this case?

First, it involves a female perpetrator. As annual Statistics Canada reports on family violence show, domestic violence is a gendered crime. In the most recent Stats Can report, 80% of all domestic complaints made to police in 2011 were made by women, a number which is consistent over time. At the international level, gender-based violence has been recognized as a form of discrimination against women in documents such as General Recommendation No. 19 to the Convention on the Elimination of All Forms of Discrimination Against Women. But in this case, Luisa Amelia Hernandez was the accused, and the complainant was her former common-law husband.

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A Pricked Condom: Fraudulently Obtained Consent or No Consent in the First Place?

By: Joshua Sealy-Harrington

PDF Version: A Pricked Condom: Fraudulently Obtained Consent or No Consent in the First Place?

Case commented on: R v Hutchinson, 2014 SCC 19

This post discusses a recent decision from the Supreme Court of Canada addressing consent in the context of sexual assault. The Court was unanimous on its final destination: dismissing the appellant’s appeal of his conviction for sexual assault. However, the Court narrowly split, 4-3, on the path taken to get there. More specifically, the Court split on whether deliberately and secretly sabotaging a condom renders sexual activity with that condom non-consensual because the victim’s consent was obtained fraudulently or because she never consented in the first place. This post reviews these two alternate approaches, notes their subtle overlap, and concludes that the state of consent in Canadian law is left unclear following this decision.

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Celibate, Awake, and Alone: The Hallmarks of a Credible Sexual Assault Victim?

By: Joshua Sealy-Harrington

PDF Version: Celibate, Awake, and Alone: The Hallmarks of a Credible Sexual Assault Victim?

Case commented on: R v FY, 2013 ABQB 694

This post discusses a recent decision from the Alberta Court of Queen’s Bench which acquitted the accused of an alleged sexual assault. In that decision, the court adopts a problematic approach to assessing consent which creates unrealistic standards that women must satisfy to maintain credibility in a sexual assault trial. Continue reading →