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This paper argues for a multi-variable approach to identifying analogous grounds under section 15 of the Canadian Charter of Rights and Freedoms. The author begins with a review of Supreme Court of Canada jurisprudence to demonstrate how the Court has consistently applied such a multi-variable approach. In the course of that review, he notes the lack of clarity in the core factors considered by the Court, namely, immutability and constructive immutability. Then, the author argues in favour of a multi-variable approach because it is more sensitive to the complexities of identity formation and because it is more effective at recognizing grounds worthy of protection under the Charter.
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In R. v. A. (J.), a majority of the Supreme Court of Canada rejected the legal validity of advance consent: consent to sexual acts anticipated to occur during unconsciousness. This article, to the contrary, argues that the legal validity of advance consent should be accepted. First, this article argues that the Criminal Code and jurisprudence are consistent with the legal validity of advance consent. Second, this article argues that, in the circumstance of a sleeping partner, advance consent should be accepted based on policy considerations in relation to sexual autonomy and the administration of justice.
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The inventive concept in patent law, central to the Supreme Court’s test for whether a patent is invalid because of obviousness, lacks clarity. This article discusses that lack of clarity with reference to the vague and inconsistent treatment of the inventive concept in the jurisprudence of the Federal Court, Federal Court of Appeal and Supreme Court of Canada. In particular, this article discusses two unanswered questions: whether the inventive concept is a necessary part of the obviousness inquiry and what the inventive concept actually means. In answering the second question, this article explores three discrete stages in the evolution of the inventive concept: (1) the genesis of the inventive concept in Canadian jurisprudence in Apotex Plavix; (2) a notable dialogue regarding the interpretation of the inventive concept between the Federal Court and Federal Court of Appeal in Apotex Combigan; and (3) the persisting confusion surrounding the current meaning of the inventive concept. This article concludes by urging appellate courts to provide clearer guidance with respect to the significance and meaning of the inventive concept.
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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 th…
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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 Univers…
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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 recen…
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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…
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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…
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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 …
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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 (Atto…
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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 decisio…
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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 dismiss…
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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 Appe…
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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 …
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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 (C…
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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…
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