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.

Good Kid, M.A.D.D. City: Seeking Proportionality in Drunk Driving Sentencing

By: Joshua Sealy-Harrington and Joe McGrade

PDF Version: Good Kid, M.A.D.D. City: Seeking Proportionality in Drunk Driving Sentencing

Cases Commented On: R v Lacasse, 2015 SCC 64; R v Sargent, 2016 ABCA 104

Constantly drinking and drive. Hit the powder then watch this flame that arrive in his eye. […] I live inside the belly of the rough Compton, USA. Made me an angel on angel dust.

–good kid m.A.A.d. city (Kendrick Lamar, 2012)

Despite the Supreme Court’s recent consideration of the law governing sentencing appeals, such appeals remain a controversial area of legal analysis for our appellate courts. This persisting ambiguity, which is rooted in how the law is applied, rather than the law itself, motivates us to revisit the Court’s leading decision in R v Lacasse. This comment summarizes the majority and dissenting judgments in Lacasse, notes the ambiguity left by the disagreement between those judgments, outlines a recent Alberta Court of Appeal decision – R v Sargent, 2016 ABCA 104 – which demonstrates that ambiguity, and discusses the significant policy consequences associated with the Supreme Court’s unanimous holding that it is appropriate to more severely punish individuals with sympathetic mitigating factors (good kids) when they reside in communities with high crime rates (mad cities). Continue reading →

Mastery or Misogyny? The Ghomeshi Judgment and Sexual Assault Reform

By: Joshua Sealy-Harrington

PDF Version: Mastery or Misogyny? The Ghomeshi Judgment and Sexual Assault Reform

Case Commented On: R v Ghomeshi, 2016 ONCJ 155

On March 24, 2016, Justice Horkins of the Ontario Court of Justice acquitted Jian Ghomeshi of five criminal charges: four counts of sexual assault and one count of overcoming resistance to sexual assault by choking. The judgment, like the original controversy surrounding his CBC dismissal and related sexual assault allegations, has polarized Canadian discourse on sexual assault – with reviews of Justice Horkins’ reasons ranging from a “total masterclass in misogynist, arrogant windbaggery” to a “masterful job of analyzing the evidence, identifying the weaknesses in the prosecution’s case and coming to the right decision.”

It is undeniable that the Canadian administration of sexual assault law must be improved. But, in pursuing that improvement, it is critical to isolate where this administration truly fails, and how best to address those failures in a manner that properly balances the interests of the accused and victims of sexual assault. The Ghomeshi judgment, which contains both strengths and weaknesses, provides a unique opportunity to deconstruct our administration of sexual assault laws, note its flaws (and strengths), and begin developing a constructive strategy moving forward. This balanced approach is most likely to manifest in targeted reforms that will actually enhance the administration of justice and provide greater protection and support to victims of sexual assault.

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Parks and Tribulation: Chartering the Territory of Homeless Camping Rights

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.

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Keep It To Yourself: The Private Use Exception for Child Pornography Offences

By: Joshua Sealy-Harrington and Ashton Menuz

PDF Version: Keep It To Yourself: The Private Use Exception for Child Pornography Offences

Case Commented On: R v Barabash, 2015 SCC 29

Last month, the Supreme Court of Canada revisited the Private Use Exception – a defence to the possession and creation of child pornography – in R v Barabash, 2015 SCC 29. The unanimous judgment, authored by Karakatsanis J, clarified the analytical framework relating to the Private Use Exception and elaborated on how courts should assess exploitative relationships in which child pornography may be made. This post explains the Private Use Exception, describes its evolution in the jurisprudence, and explores questions left unanswered by the Court’s decision in Barabash.

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Can the Homeless Find Shelter in the Courts?

By: Joshua-Sealy Harrington

PDF Version: Can the Homeless Find Shelter in the Courts?

Case Commented On: Tanudjaja v Canada (Attorney General), 2014 ONCA 852

Late in 2014, the Ontario Court of Appeal considered a Charter challenge to provincial and federal (in)activity allegedly contributing to homelessness and inadequate housing (Tanudjaja v Canada (Attorney General), 2014 ONCA 852 (“Tanudjaja CA”)). The appellants sought to overturn a motion judge’s decision striking their application at the pleadings stage (Tanudjaja v Canada (Attorney General), 2013 ONSC 5410 (“Tanudjaja SC”)). A majority of the Court of Appeal (the “Majority”) upheld the motion judge, while the dissenting judgment (the “Dissent”) would have overturned the motion judge and allowed the Charter challenge to proceed to trial. This comment analyzes both judgments and concludes that the Dissent provides a more compelling analysis of the governing legal principles and their application in this case.

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