Author Archives: Joshua Sealy-Harrington

About Joshua Sealy-Harrington

B.Sc. (UBC), J.D. (Calgary), LL.M. (Columbia). Joshua is a doctoral student at Columbia Law School, where he researches identity and sexuality. He completed three judicial clerkships, two at the Supreme Court of Canada with Justice Clément Gascon and one at the Federal Court with Justice Donald Rennie. Joshua also practiced for two years as a commercial litigator at Blake, Cassels & Graydon LLP. He is an aspiring legal scholar who has published in a variety of forums, including the Canadian Journal of Human Rights, the Canadian Criminal Law Review, the University of Toronto Journal of Law & Equality, and the Globe & Mail. He can be followed on Twitter @joshuasealy.

(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. Continue reading →

Confusing Equality with Tyranny: Repealing the Statement of Principles

By: Joshua Sealy-Harrington

PDF Version: Confusing Equality with Tyranny: Repealing the Statement of Principles

Matter Commented on: Law Society of Ontario Statement of Principles

Tomorrow, the Law Society of Ontario will vote on a motion to repeal the Statement of Principles (SOP) requirement for Ontario lawyers and paralegals. Many lawyers opposed to the requirement were recently elected to the Law Society’s governing body. But their opposition is, for the most part, disingenuous — pro speech in form, but anti-diversity in substance.

As background, the SOP requirement asks every Ontario lawyer and paralegal to write an annual statement acknowledging their existing legal obligations relating to equality. It seeks to promote reflection on racism in the legal profession. The statement is private. It is never disclosed to, or scrutinized by, the Law Society. Other than acknowledging one’s existing legal obligations, the statement’s content is entirely up to the author. And the Law Society has never indicated that any lawyers or paralegals would be sanctioned for failing to complete their SOP. It is a modest regulatory requirement. Continue reading →

Making Sense of Aboriginal and Racialized Sentencing

By: Joshua Sealy-Harrington and David Rennie

PDF Version: Making Sense of Aboriginal and Racialized Sentencing

Cases Commented On: R v Laboucane, 2016 ABCA 176 (CanLII); R v Kreko, 2016 ONCA 367 (CanLII)

In R v Laboucane, 2016 ABCA 176 (CanLII), the Alberta Court of Appeal strongly criticizes the Ontario Court of Appeal’s decision in R v Kreko, 2016 ONCA 367 (CanLII), where the Ontario Court of Appeal allegedly approached the sentencing of Aboriginal offenders too leniently, and “almost” interpreted the Criminal Code as providing for automatic sentence reductions in all cases with Aboriginal offenders (Laboucane at para 67).

The Alberta Court of Appeal’s critique warrants a review not only of this alleged disagreement between appellate courts, but also of the lack of clarity in Aboriginal sentencing more broadly. In addition, following a summary of the principles underlying Aboriginal sentencing, we argue that many of those principles should be applied in the context of sentencing racialized communities in Canada, and in particular, in the context of Black offenders. Continue reading →

Trinity Western Decision Fails to Clarify Approach to Balancing Conflicting Charter Rights

By: Joshua Sealy-Harrington and Marita Zouravlioff

PDF Version: Trinity Western Decision Fails to Clarify Approach to Balancing Conflicting Charter Rights

Case Commented On: Trinity Western University v The Law Society of Upper Canada, 2016 ONCA 518 (CanLII)

Two days before Canada Day, the Ontario Court of Appeal upheld the Law Society of Upper Canada’s decision to not accredit the proposed law school at Trinity Western University—a private Christian university in British Columbia which requires all prospective law students to abstain from gay sex. Many progressives hailed the decision as a victory for equality, and it undoubtedly was. But while the outcome was progressive in this case, its reasoning need not result in progressive outcomes in future cases. For this reason, we critique the Court’s reasons for failing to discuss the appropriate approach to balancing conflicting Charter rights. Continue reading →

Throwing the Dog a Bone: A Historical and Policy Critique of the Supreme Court’s Bestiality Ruling

By: Joshua Sealy-Harrington and Evan Choate

PDF version: Throwing the Dog a Bone: A Historical and Policy Critique of the Supreme Court’s Bestiality Ruling

Case Commented On: R v DLW, 2016 SCC 22 (CanLII)

In R v DLW, 2016 SCC 22 the Supreme Court of Canada split on whether the criminal offence of bestiality requires “penetration.” The majority judgment held that bestiality requires penetration and, on that basis, held that a dog licking a vagina is not bestiality. In contrast, the dissenting judgment held that bestiality does not require penetration and, accordingly, held that a dog licking a vagina is bestiality. In this post, we first summarize the factual and legislative background in DLW and the reasons of the majority and dissenting judgments. Second, we critique the majority judgment for: (1) its unpersuasive reliance on judicial deference; and (2) its overstated claim that “buggery” (the precursor to bestiality) had a clear meaning. Lastly, we critique both the majority and dissenting judgments for their reliance on: (1) imprecise sexual terms which fail to bring clarity to bestiality law; and (2) an unimaginative privileging of cisgender, procreative heterosexuality that perpetuates harmfully conservative understandings of human sexuality. Continue reading →