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.

Jiangho Unchained: A Discussion of the Narrative and Commentary Surrounding the Jian Ghomeshi Scandal

By: Joshua Sealy-Harrington

PDF Version: Jiangho Unchained: A Discussion of the Narrative and Commentary Surrounding the Jian Ghomeshi Scandal

The recent scandal surrounding Jian Ghomeshi’s dismissal from the CBC, and the sexual assault allegations relating to that dismissal, have had a polarizing impact on Canadian discussion about sexual assault. First, this comment outlines the legal framework surrounding the sexual assault allegations against Mr. Ghomeshi to clarify what is relevant to the adjudication of those allegations, and what is not. Second, this comment seeks to respond to the polarizing conversation on this issue and argue for a middle ground which preserves the presumption of innocence while simultaneously demanding greater support for the victims of sexual assault.

Background

On October 26, 2014, the CBC announced that its relationship with Jian Ghomeshi – host of the popular radio show “Q” – had come to an end.

The factual background underlying this controversy (AKA World War Q, AKA Ghomeshigate) is heavily contested. Mr. Ghomeshi, in a note posted on Facebook, claims to be the victim of “a campaign of false allegations pursued by a jilted ex girlfriend and freelance writer.” Shortly thereafter, an article in the Toronto Star reported that three anonymous women say that Mr. Ghomeshi “was physically violent to them without their consent during sexual encounters or in the lead-up to sexual encounters.” Moreover, following the Toronto Star piece, many other women echoed these allegations, including actress Lucy DeCoutere, who has agreed to be identified.

In the aftermath of his dismissal, Mr. Ghomeshi filed a $55 million law suit against the CBC for breach of confidence and defamation (though, some have argued that the law suit serves ulterior motives). To date, no formal complaint or police investigation relating to the allegations against Mr. Ghomeshi has taken place.

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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 →

Should Homelessness be an Analogous Ground? Clarifying the Multi-Variable Approach to Section 15 of the Charter

By: Joshua Sealy-Harrington

PDF Version: Should Homelessness be an Analogous Ground? Clarifying the Multi-Variable Approach to Section 15 of the Charter

Case Commented On: Tanudjaja v Canada (Attorney General), 2013 ONSC 5410

This post discusses a decision from the Ontario Superior Court which rejected “homelessness” as an analogous ground under section 15 of the Canadian Charter of Rights and Freedoms. I divide the analysis into two sections: (1) a discussion of the analytical flaws in the court’s approach to analogous grounds, and (2) an application of a multi-variable approach to the potential ground of homelessness to demonstrate its apparent viability as an analogous ground. This case should be of concern to ABlawg readers interested in section 15 jurisprudence as well as those advocating for the interests of the homeless.

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Blurred Lines: The Need for Clear Criteria in the Sentencing of Sexual Assaults

PDF Version: Blurred Lines: The Need for Clear Criteria in the Sentencing of Sexual Assaults

Case commented on: R v Sam, 2013 ABCA 174

What is a “major sexual assault” for the purposes of applying sentencing guidelines in sexual assault cases? Its current definition is unclear. The Alberta Court of Appeal missed an opportunity to provide a concrete definition for major sexual assault in R v Sam, 2013 ABCA 174. This comment will begin by providing background on Sam, and describing how the Court of Appeal did not directly address the issue of major sexual assault in that case. Then, I will discuss how the Court of Appeal should clarify the relevance of violence and de facto consent to sexual assault at the stage of sentencing. Finally, I will argue that factors that are irrelevant to legal culpability for sexual assault may still be relevant at the stage of sentencing.

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