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Over 20 years have elapsed since the Supreme Court of Canada adopted the English tripartite test for interlocutory injunctions: a serious issue to be tried, proof of irreparable harm and balance of convenience. This article is written in response to those who have argued that the concept of irreparable harm should not be viewed as a threshold requirement, but that it only forms a component of the balance of convenience inquiry. In contrast, the author argues that it is a central and necessary element of an applicant’s claim for interlocutory relief. Proof of irreparable harm is a necessary justification to access equitable relief and the burden placed upon the applicant to do so is a normal part of the civil litigation process. Canadian courts have not found this an unworkable approach, although the language used to describe the standard of evidential proof by some courts, namely “clear and not speculative,” may have been unwise and was not required by the Supreme Court of Canada.

The question of whether a province can require civil marriage commissioners to perform same sex marriages, over their religious objections, has been addressed by the Canadian courts in a series of cases. In each of these cases the issue is framed by the courts as a contest between religious freedom and sexual orientation equality that must be resolved through the balancing of these competing interests. And in each of these cases the court strikes the balance in favour of sexual orientation equality, determining that the equality rights of same-sex couples outweighs the religious freedom of marriage commissioners. Despite what they say, the courts in these cases do not balance or trade-off religious freedom and sexual orientation equality, but instead give complete priority to the latter. A refusal by a marriage commissioner to perform a same-sex civil marriage ceremony is viewed by the courts as the cause of harm or injury to the couple (an act of discrimination) and not simply as a competing claim. I will argue that there is no balancing in these cases because there is no freedom of religion interest to be balanced against the right to sexual orientation equality. The marriage commissioner’s freedom of religion lacks substance not, or not simply, because the commissioner is a public official, or because the interference with his/her religious beliefs is indirect or partial. Rather the religious objection of the marriage commissioner falls outside the scope of freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms [the Charter], because it involves a belief about how others in the community should behave and be treated. A marriage commissioner has no claim to be exempted from the duties of his or her position on the basis of such a belief.

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 …

There is a debate at the moment about whether the law societies (which regulate the legal profession in the various provinces) must accredit a law program to be offered by Trinity Western University [TWU], a private Evangelical Christian college. The Law Society of Upper Canada [LSUC], along with the law societies of British Columbia and Nova Scotia, refused to the accredit the proposed program because of the school’s discriminatory admissions policy and in particular the covenant that all students are required to sign, in which they agree, among other things, not to engage in sex outside of marriage and sex with a same-sex partner. The issue in the TWU accreditation case is whether the covenant is simply an internal matter (a rule that applies simply to the internal operations of a voluntary religious association) or whether it impacts outsiders to the religious community or the public interest, more generally. As I understand it, the law societies are not claiming that the members of a religious community need to be protected from oppressive or discriminatory internal rules. There are two ways in which it may be argued that the TWU program (and the covenant in particular) will have an impact on the public interest. The first argument is that a school that teaches its students that homosexuality is wrongful or immoral will not properly prepare lawyers for practice in the general community. Lawyers have duties to their clients, to the law, and to the institutions of justice. An accredited school must be willing to affirm basic equality rights. Second, admission to Canadian law schools is competitive. If its program is accredited, TWU will select students from a large number of applicants. Following graduation (as well as articling, and bar exams), TWU students will be eligible to practice law in a particular province. The accredited law schools are a gateway to the legal profession. The concern then is that TWU’s admissions policy will have a discriminatory impact on gays and lesbians who wish to enter the legal profession.

How much does it cost individual Canadians to seek civil justice? This article compiles empirical data about the monetary, temporal, and psychological costs confronting individual justice-seekers in this country. The article suggests that analysis of private costs can improve access to justice in two ways. First, it can help public sector policy-makers to reduce these costs. Second, it can help lawyers and entrepreneurs to identify new, affordable ways to reduce the costs that are most onerous to individuals with different types of civil legal need.

The presence of a physical object (a book, DVD, CD) plays a determinant role in how information products (e.g., commercial copies of computer programs, books, musical recordings, video games, and virtual worlds) are regulated, in contrast with copies of similar information products with no physical embodiment. The presence of a physical object influences how law makers distinguish goods from services, to define a contract of sale or license, to apply the first sale doctrine in copyright law, and to determine which acts reserved to copyright holders are involved in a commercial transaction. In this article, I argue that the emphasis on a physical object is to a large extent arbitrary, leads to double standards, legal and normative incoherence, and ultimately that it is detrimental to recipients of information products and copyright user rights.

In Mouvement laique v Saguenay the Supreme Court of Canada held that the recitation of a prayer at the opening of a municipal council’s public meeting breached ‘the state’s duty of neutrality’ in matters of religion. The comment discusses some of the difficulties or challenges raised by the Court's commitment to religious neutrality.

Derived from Canadian Divorce Law & Practice, the commentary of this work comprehensively covers the developing body of case law pertaining to spousal support in Canada, and includes the full text of the Spousal Support Advisory Guidelines and relevant sections of the Divorce Act. The chapters dedicated to spousal support under the Divorce Act include: Jurisdiction Parties Interim and Permanent Support Terms and Conditions Determination of Income. The chapters dedicated to the new Spousal Support Advisory Guidelines (SSAG) focus upon the following: the support formulas for spouses with child(ren) and for those without them; using the ranges; ceilings and floors; exceptions; variation and review of awards; retroactive support; and judicial reception of the SSAG.

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…

English Abstract: This volume of the Oñati Socio-legal Series consists of revised versions of 15 of the 20 papers presented at a workshop hosted by the Oñati International Institute for the Sociology of Law (IISL) in May 2013. The workshop took its theme from Stéphane Hessel’s cri de coeur, Indignez-vous! and the protest movements it inspired, which we saw as protests against the social inequality that necessarily follows from economic inequality and other power imbalances. This message continues to resonate. In 2015, for example, Oxfam International’s research paper entitled “Wealth: Having it all and wanting more” concludes that by 2016, the world’s richest 1% will have more of the world’s wealth than all of the remaining 99% of people. And a Canadian observer decries the effect of this – which he labels “trickle-down meanness” – on the socio-political fabric of a country.

English Abstract: Expropriation – the non-consensual taking of privately-owned property by the state in exchange for the payment of compensation – is a widely-used tool of land use planning in Canada as it is in many other states. While in principle all privately-held properties are equally susceptible to expropriation in Canada, legal frameworks on expropriation fail to guard against the possibility that less-wealthy neighbourhoods become more susceptible to expropriation than more wealthy ones (the 99% versus the 1% to put it in the terms used by the Occupy movement of the early part of this decade). The paper examines existing legal frameworks as well as a number of historical expropriation projects in Canada to depict how and why this may come to pass. It does so with a comparative eye turned towards the United States. The paper concludes with several recommendations for strengthening expropriation law frameworks in Canada to ensure that the property of the less-wealthy is as well protected as those properties in higher-income neighbourhoods.

I use the United Nations Panel of Experts on Accountability in Sri Lanka’s recommendation to create an international mechanism and recent demands for justice as a springboard to argue that the creation of a new ad hoc international or hybrid criminal tribunal for Sri Lanka may not produce the expected results of prosecuting those responsible for mass human rights violations. I argue that such an initiative will not heal the ruptures and cleavages among the different ethnic communities in Sri Lanka. By teasing out the political nature of international criminal law and the embedded nature of the history of international law, this chapter suggests that the creation of an international institution may not bring to justice the divergent perpetrators of war crimes. Rather, the politics of international institutions and the history of international law may allow for ‘regulatory capture’ and the continuing rise of international experts as seen through the illustrative history of the International Criminal Tribunal for Rwanda.

In what follows I make five points that are potential ‘hot spots’, or are implications that flow from the Supreme Court of Canada’s decision in Bhasin v. Hrynew 2014 SCC 71 [hereafter Bhasin]. They are presented in no particular order, but, in making these comments I am reminded of the comment: “He who lives by the crystal ball soon learns to eat ground glass” (Edgar R. Fiedler in The Three Rs of Economic Forecasting-Irrational, Irrelevant and Irreverent).

Criminalization of sexual violence against women in intimate relationships must form a central part of the human rights agenda for achieving gender equality. According to a study by the United Nations Secretary-General, “[t]he most common form of violence experienced by women globally is intimate partner violence” including “a range of sexually, psychologically and physically coercive acts.” The World Health Organization reports that nearly one in four women in some countries may experience sexual violence perpetrated against them by an intimate partner. Other research suggests that approximately 40% of all assaulted women are forced into sex at one time or another by their male partners.

Ending the marital rape exemption in criminal law is a demand for legal equality and autonomy for women, rights that are enshrined in international human rights law. Drawing on international human rights law as a source of authority for challenging the marital rape exception in criminal law allows feminist and other social justice organizations, within their specific national and local contexts, to seek greater state action and accountability toward ending this form of violence against women and this violation of women’s human rights. In this reply, we challenge the arguments in the symposium that oppose or caution against criminalizing sexual violence in intimate relationships as a necessary legal strategy, and that refute our view that ending the marital rape exemption is required by international human rights law.