ABLawg

By: Jennifer Koshan

PDF Version: Reflections on Week One of the Ghomeshi Trial

I posted on ABlawg last Monday on the legal consequences of choking in the sexual assault context, which I suggested would be a likely issue in the Jian Ghomeshi trial. The testimony at the first week of the trial indicates that the question of whether one can legally consent to sexual activity involving choking is less likely to be the focus than whether the sexual assaults actually occurred and / or whether there was consent to the sexual activity in fact. Much ink has been spilled on the scope of the cross-examinations of the two complainants (so far) by defence counsel Marie Henein and the consequences of her tactics for the rights of sexual assault victims and their willingness to come forward. I want to add my two cents worth by focusing on the scope of the rape shield provisions, the relevance of the relationship between the complainants and the accused, and the possibility of expert evidence in this trial.

The Tension Between Process and Outcome in Creating Representative Juries

By Erin Sheley

On February 5, 2016

In Constitutional, Criminal

By: Erin Sheley

PDF Version: The Tension Between Process and Outcome in Creating Representative Juries

Case Commented On: R v Newborn, 2016 ABQB 13

The Court of Queen’s Bench has upheld the Alberta Jury Act’s exclusion from jury service of those criminally convicted or charged, in reasons that emphasize the conflict between the important goals of securing impartiality on individual juries and promoting racial representativeness in jury selection at the systemic level.

Jeremy Newborn, an aboriginal man charged with second degree murder in Edmonton, was granted an adjournment of jury selection after his counsel reported to the judge that none of the members of the jury array appeared to be of aboriginal descent. Mr. Newborn moved for a declaration invalidating s. 4(h) of the Jury Act, RSA 2000, c J-3, which provides that persons who have been convicted of a criminal offence for which a pardon has not been granted, or who are currently charged with a criminal offence, are excluded from serving as jurors. His argument turns on the fact that Aboriginal persons form a disproportionate percentage of the criminally accused, relative to their representation in the general population, and that the s. 4(h) exclusions therefore violate his right to a representative jury under ss. 7, 11(d) and 11(f) of the Charter.

Parks and Tribulation: Chartering the Territory of Homeless Camping Rights

By Joshua Sealy-Harrington

On February 3, 2016

In Constitutional

By: Joshua Sealy-Harrington and Tara Russell

PDF Version: Parks and Tribulation: Chartering the Territory of Homeless Camping Rights

Case Commented On: Abbotsford (City) v Shantz, 2015 BCSC 1909

In Abbotsford (City) v Shantz, 2015 BCSC 1909 (Abbotsford), Chief Justice Hinkson of the British Columbia Supreme Court assessed multiple Charter challenges to various bylaws affecting individuals experiencing homelessness in British Columbia. Abbotsford continues a trend of recent Canadian decisions addressing the Charter rights of homeless individuals. While the Court in Abbotsford recognized a right for homeless individuals to camp overnight in parks when insufficient shelter space is available, that right is narrow since it can be eliminated through the expansion of homeless shelters (even though many homeless individuals legitimately prefer camping to a shelter). Further, that right rests upon an unclear foundation of legal reasoning that narrows the constitutional protections for homeless individuals without adequate justification.

Environment in the Courtroom – A Free Symposium on Environmental Inspections and Enforcement Actions: On-site and in Court, February 26 & 27, 2016

By Allan Ingelson

On February 2, 2016

In Conferences

By: Allan Ingelson

PDF Version: Environment in the Courtroom – A Free Symposium on Environmental Inspections and Enforcement Actions: On-site and in Court, February 26 & 27, 2016

This is the fifth national environmental law symposium funded by Environment Canada (now Environment & Climate Change Canada), organized by the Canadian Institute of Resources Law (CIRL) in the Faculty of Law at the University of Calgary, and its partners. During the last four years, practitioners, judges, and academics from across Canada have attended either in person or online and have contributed questions and comments to the discussion of current important environmental law issues. Last year we had 299 registrants from across Canada and in the United States. This year one presenter (Jonathan Leo) will discuss the American experience with environmental inspections and enforcement actions. Registrants can obtain the symposium program and papers in both official languages. Symposium presentations will be in either French or English, depending on the speaker, and will address civil and/or common law perspectives. Attendees at previous symposiums have reported that the information that has been provided is both practical and useful. We encourage active audience participation in the panel discussions. Last year the symposium was held in the Faculty of Law at the University of Calgary. This year the national symposium has been organized by CIRL, the Faculty of Law at the University of Ottawa, and the Ontario Bar Association.

Sexual Assault and Choking – Making Sense of the Legal Consequences

By Jennifer Koshan

On February 1, 2016

In Criminal, State Responses to Violence

By: Jennifer Koshan

PDF Version: Sexual Assault and Choking – Making Sense of the Legal Consequences

Case Commented On: R v White, 2016 ABQB 24

The Jian Ghomeshi trial gets underway today and there is likely to be intense coverage of this event in the media and blogosphere (for earlier ABlawg posts on Ghomeshi see here and here). Ghomeshi is charged with 4 counts of sexual assault as well 1 count of overcoming resistance by choking. Choking is not uncommon in sexual assault cases, although its legal significance is still somewhat murky. For example, in R v JA, [2011] 2 SCR 440, 2011 SCC 28, the Supreme Court declined to rule on whether choking that leads to unconsciousness amounts to bodily harm so as to vitiate consent (at para 21). A recent Alberta case, R v White, 2016 ABQB 24, considered the relevancy of choking in the context of sentencing for sexual assault offences. As I will discuss in this post, White suggests that choking should be seen as equivalent to bodily harm in this context, which may have implications for sexual assault matters more broadly.