Q&A with Jennifer Koshan
The University of Calgary law professor on Canada’s patchwork of laws addressing domestic violence.
Jennifer Koshan is the winner of the CBA's 2020 Ramon John Hnatyshyn Award for her ground-breaking contributions to law reform in the areas of civil remedies for victims of sexual assault. CBA National caught up with the University of Calgary law professor to talk about laws addressing domestic violence, access to justice, and concerns around judicial education.
CBA National: How did you come into this area of study?
Jennifer Koshan: I started my career as a Crown prosecutor in the Northwest Territories and flew all over the North. It was a super interesting job, especially for a young lawyer. The learning curve was incredibly steep, but I did a lot of work on cases involving violence against women. It was an influential time for me, and I went back to school to do a Master's degree looking at issues of Aboriginal justice and violence against women. Eventually found my way into a teaching position.
N: How do you evaluate the impact of your work on civil remedies for victims of sexual assault, 20 years later?
JK: The project focused more on the work of judges than legislative reforms on sexual violence. So we were trying to get judges to see the harms of sexual violence in ways that resulted in larger awards to the victims. One thing that has changed since we did that report is that limitation periods have now disappeared in most provinces for sexual assault civil claims and domestic violence claims. That's positive because – especially in the area of sexual violence – the criminal system has continued to be very problematic for women to engage with. People are looking for alternatives to be able to get some measure of justice.
N: Where has your work taken you lately?
JK: I'm working on domestic violence and access to justice. I'm part of a five-person team and we're mapping all the different laws and policies that apply to domestic violence cases across the country. Our view is that the first step in access to justice is giving people access to the actual laws themselves. There have been a lot of changes in the law in the last five years. We now have domestic violence provisions in residential tenancy legislation, so victims can terminate their tenancies early if they're a victim of violence. We have employment leave provisions in employment standards so that people can take time away from work to get medical attention, or counseling, or attend legal proceedings. We're trying to map all of those out and look at the different intersections between them. Because there's just this real patchwork of different laws and policies, and there continue to be gaps in the law. And we're also looking at how judges apply those laws, because any changes that we make to the law —whether it's domestic violence or sexual assault — are only as good as the people who put those laws into practice. I've also been very fortunate to work with judges doing judicial education on sexual assault. And I think there's been huge progress made in recognizing stereotypes in that area, but perhaps not so much progress on the domestic violence side.
N: How so?
JK: There are myths and stereotypes embedded in the family law system, and there's still this assumption that women raise allegations of domestic violence because they're trying to gain an advantage in family law proceedings. I'm not saying that never happens but, just like myths and stereotypes in sexual assault cases, we have to start with the understanding that we can't make those sorts of assumptions.
N: It's surprising, though, because I would've presumed that there was a certain amount of acceptance in our society that domestic violence is a real problem.
JK: I think you're right about that. But we still have this idea that parents should spend as much time with their children as possible. And so the courts are faced with faced with very difficult issues in these cases. On the one hand, they're being told they need to take family violence seriously, but family law statutes say that parents should have that maximum contact with their kids. That's one of the things that's so interesting about our project: We're looking at those conflicting objectives. Look at the criminal system and the child welfare system, which are all about protecting victims of violence. If women don't leave their partners, they can have their children apprehended under the child welfare system. But in family law, they're being told they have to provide as much contact as possible. It's a catch-22. Part of the problem, too, is that judges don't really talk to each other across these different systems.
N: That's quite a challenge in a court system that is already struggling with resources and access to justice issues.
JK: Absolutely. And that's why I think integrated domestic violence courts have some promise. There's one in Toronto now. They're a lot more common in the United States. But they're courts where you have one judge hearing all the different issues that a family is dealing with in a domestic violence case. So they hear the criminal matter, then they hear the family matters. And there's a lot of monitoring that takes place so they can track that family and ensure that safety is being prioritized.
N: There's a new law in Alberta – known as Clare's Law – that would allow people at risk of domestic violence to access information about an intimate partner's previous history of domestic violence. You've raised concerns about it.
JK: Yes, and don't get me wrong; I think there are some very positive aspects of these laws. It started in the U.K. In Canada, it was first introduced in Saskatchewan and we now have it in Alberta. On the plus side, it could be very positive for women to have access to that information that can help them to make decisions about leaving a potentially violent partner. But they need to have strong support systems in place because there's lots of evidence that violence actually increases at the time of separation. I worry about the unintended consequences for women who perhaps get information about a partner who is violent but then still decide to stay with that person — for financial dependency reasons in some instances. My concern is that if they don't act the way that society expects them to act, when they get access to this information, then they may then face adverse consequences when they try and use the justice system for other things.
N: You talked about judicial education. How do you respond to concerns expressed about judicial independence?
JK: First, all of the judicial education work that I've been involved with so far – mostly through the National Judicial Institute – has just been of the highest quality. And I've been quite pleased to see how receptive judges are to education on difficult and challenging topics like sexual violence. And from my perspective, I've been involved in education efforts that have a basis in evidence. The Supreme Court of Canada has recognized about 15 different myths and stereotypes in sexual assault cases. But that hasn't always filtered its way down to the lower courts. I would say that it's not so much about trying to interfere with judicial independence to get judges to think in a particular way. It's more about helping them avoid what has been recognized as errors of law. And that's in a sexual assault context, but I think you could say the same thing about judicial education in areas like domestic violence, for instance.
N: Where do you think the study of violence against women needs to go next?
JK: I think we need to have an overarching national strategy. We do have a gender-based violence framework that the federal government has introduced. But it doesn't dig down into the legal realm the way that I think we need it to. We need to look at how all of the different legal systems intersect in cases that have become incredibly complex. And governments need to monitor things constantly to make sure there are no conflicts between laws, no gaps, no catch-22s for victims Because different systems are demanding different things of them. I think that's probably where our current project on domestic violence and access to justice is headed: recommending some sort of national framework.
This interview was edited and condensed for publication.