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Papers by Constance MacIntosh
The Dalhousie Law Journal, 2019
The Dalhousie Law Journal, 2019
The Dalhousie Law Journal, 2019
Social Science Research Network, 2009
In this article I consider how judicial decision making characterizes Indigenous peoples’ culture... more In this article I consider how judicial decision making characterizes Indigenous peoples’ culture outside the context of determinations under section 35(1) of the Constitution Act, 1982. I am concerned with how contemporary jurisprudence sometimes subjects Indigenous people to stereotyped tests of Aboriginality when they seek to exercise legislated rights. These common law tests of Aboriginality tend to turn on troubling oppositional logics, such as whether or not the Indigenous person engages in waged labour or commercial activities. These tests arose in historic legislation and policy that were premised on social evolutionary theory and were directed at determining whether an Indigenous person was to be deemed economically assimilated. Before such legislation and policies were repealed, however, the tests crossed into the common law and have since been read into legislation. As a result, the doctrine of precedent has reinforced and continually renewed this oppressive discourse to ...
There were three Aboriginal law judgments released by the Supreme Court during the 2006-2007 term... more There were three Aboriginal law judgments released by the Supreme Court during the 2006-2007 term. The first, McDiarmid Lumber Ltd. v. God's Lake First Nation. The second judgment which was released this term involved the claimed rights of First Nations to harvest timber to build homes and furniture. The final case, R. v. Morris, involved determining the extent to which provincial laws can infringe upon treaty rights.
In January 2009, the federal government issued a discussion paper that details its preferred regu... more In January 2009, the federal government issued a discussion paper that details its preferred regulatory route for enabling a legislative framework. This route is to referentially incorporate provincial legislation regarding operational standards through a framework statute, and then develop the details of the regime through regulations to be developed in consultation with First Nations over the next few years. Importantly, the opening sentence of the discussion paper's executive summary expressly connects water and public health. It reads: "The provision of safe drinking water and the effective treatment of wastewater are critical in ensuring the health and safety of First Nations people and the protection of source water on First Nation lands. Below I sketch out the current conditions and how the federal proposal suggests engaging these conditions. I conclude that although regulated standards will undoubtedly bring about improvements to public health, the proposal misses s...
This report is an effort to address information gaps regarding how gendered claims are addressed ... more This report is an effort to address information gaps regarding how gendered claims are addressed by adjudi-cators at Canada's Refugee Protection Division of the Immigration and Refugee Board of Canada (the RPD). It looks at one specific type of gendered claim: persecution through domestic or intimate violence. The study considers all the RPD decisions from 2004 to 2009 and judicial reviews from 2005 to 2009 that were reported in the Quicklaw LexisNexis service. These decisions are analyzed both quantitatively and qualitatively. This report finds adjudicators consistently identify domestic violence as a form of gendered persecution that can form a nexus to a convention ground. However, despite contrary directions from the Gender Guidelines, adjudicators often fail to recognize the social, cultural, economic, and psychological dynamics of domestic abuse as legally relevant for their assessment of state protection. There is a striking failure on this account when it comes to determ...
Medical Decision-Making on Behalf of Young Children, 2020
The Future of Ocean Governance and Capacity Development, 2019
, over 1,000 would-be migrants drowned in a single week while trying to cross the Mediterranean S... more , over 1,000 would-be migrants drowned in a single week while trying to cross the Mediterranean Sea.1 Most had started their journey in Sub-Saharan Africa, where gross human rights violations and civil breakdown were, and remain, rampant. Because Turkey had enhanced its border control measures to try to quell the flow of asylum seekers fleeing from Syria, it had become harder to reach the safety of European states via a land corridor. Opportunities for smugglers and traffickers increased, who routed tens of thousands of displaced people to the coastal state of Libya. Here, many migrants found themselves sold to criminal gangs or to other traffickers. They were subjected to torture, to sexual abuse by armed forces, and to forced labor and long incarcerations underground.2 In short, they found themselves enslaved or subsisting in conditions of extreme vulnerability, and ultimately directed onto large wooden boats by the smugglers and traffickers. Once well into the Mediterranean, the people were often forced onto small rafts or dinghies, to (hopefully) be picked up by European coastal patrols or otherwise make it to shore alive. In the first half of 2015, one in 16 persons drowned trying to make the crossing. This was due to the poor condition of the boats, the lack of safety equipment, overcrowding, and the inherently perilous character of ocean crossings. It was also due to the decision by the European Commission and Italian government to end funding for the humanitarian initiative Mare Nostrum. This initiative, launched due to mass drownings of trafficked migrants trying to reach Europe in 2013, had been effectively coordinating search and rescue operations near Libya during 2013 and 2014. The program was cancelled because of concerns that the increase in safety which it offered was incentivizing displaced people to take to the sea, as well as the refusal of other countries to contribute to its costs despite-or perhaps because of-having rescued
Canadian Journal of Women and the Law, 2019
Criminal Law eJournal, 2016
The Supreme Court of Canada’s decision in Carter v Canada (Attorney General) 2015 SCC 5 decrimina... more The Supreme Court of Canada’s decision in Carter v Canada (Attorney General) 2015 SCC 5 decriminalized physician assisted death in certain defined circumstances. One of those circumstances is that the person seeking assistance be an “adult”. This article argues that the regulatory response to this decision must approach the idea of “adult” in terms of the actual medical decisional-capacity of any given individual, and not rely upon age as a substitute for capacity. This article surveys jurisdictions where minors are included in physician assisted dying regimes, and identifies what little empirical evidence exists regarding requests from minors. The heart of the article considers the jurisprudence on mature minors and when they are deemed to have the right to require the withdraw of, or refuse to receive, life-sustaining treatment, and compares the reasoning in these cases with that in Carter. A particular focus is how the jurisprudence approaches decisional capacity when the individ...
Refuge: Canada's Journal on Refugees
This report is an effort to address information gaps regarding how gendered claims are addressed ... more This report is an effort to address information gaps regarding how gendered claims are addressed by adjudicators at Canada’s Refugee Protection Division of the Immigration and Refugee Board of Canada (the RPD). It looks at one specific type of gendered claim: persecution through domestic or intimate violence. The study considers all the RPD decisions from 2004 to 2009 and judicial reviews from 2005 to 2009 that were reported in the Quicklaw LexisNexis service. These decisions are analyzed both quantitatively and qualitatively. This report finds adjudicators consistently identify domestic violence as a form of gendered persecution that can form a nexus to a convention ground. However, despite contrary directions from the Gender Guidelines, adjudicators often fail to recognize the social, cultural, economic, and psychological dynamics of domestic abuse as legally relevant for their assessment of state protection. There is a striking failure on this account when it comes to determining...
SSRN Electronic Journal
This is a pre-publication draft of a chapter for the forthcoming book Social Rights in Canada (ed... more This is a pre-publication draft of a chapter for the forthcoming book Social Rights in Canada (edited by Martha Jackman & Bruce Porter) to be published by Irwin Law. ** The author thanks Martha Jackman and Bruce Porter for their encouragement to explore the issues raised in this chapter, as well as all the participants of the CURA workshop for their collegiality and scholarly generosity. The author also thanks Zeynep Hursevoglu for her meticulous research assistance.
Canadian Journal of Women and the Law
Alberta Law Review
This article considers what it would mean if Canada fulfilled select existing commitments and obl... more This article considers what it would mean if Canada fulfilled select existing commitments and obligations concerning the mental health needs of Indigenous peoples, as identified through current programs and recent jurisprudence: that is, where would we be if Canada carried through on existing commitments? After identifying the role of law in perpetuating poor mental well-being, it assesses programs for First Nations and Inuit peoples and determines they are unlikely to be effective without operational changes and responsive funding. The article then turns to the situation of Metis and non-status First Nations and the implications of Daniels v. Canada for changing the status quo – both by requiring appropriate mental health supports, and by dismantling the racist legal logic that has long undermined the mental well-being of non-status First Nations and Metis persons, by positioning them as not counting as true Indigenous peoples. The article concludes that merely fulfilling current s...
Review of Constitutional Studies Revue D Etudes Constitutionnelles, 2012
The Dalhousie Law Journal, 2019
The Dalhousie Law Journal, 2019
The Dalhousie Law Journal, 2019
Social Science Research Network, 2009
In this article I consider how judicial decision making characterizes Indigenous peoples’ culture... more In this article I consider how judicial decision making characterizes Indigenous peoples’ culture outside the context of determinations under section 35(1) of the Constitution Act, 1982. I am concerned with how contemporary jurisprudence sometimes subjects Indigenous people to stereotyped tests of Aboriginality when they seek to exercise legislated rights. These common law tests of Aboriginality tend to turn on troubling oppositional logics, such as whether or not the Indigenous person engages in waged labour or commercial activities. These tests arose in historic legislation and policy that were premised on social evolutionary theory and were directed at determining whether an Indigenous person was to be deemed economically assimilated. Before such legislation and policies were repealed, however, the tests crossed into the common law and have since been read into legislation. As a result, the doctrine of precedent has reinforced and continually renewed this oppressive discourse to ...
There were three Aboriginal law judgments released by the Supreme Court during the 2006-2007 term... more There were three Aboriginal law judgments released by the Supreme Court during the 2006-2007 term. The first, McDiarmid Lumber Ltd. v. God's Lake First Nation. The second judgment which was released this term involved the claimed rights of First Nations to harvest timber to build homes and furniture. The final case, R. v. Morris, involved determining the extent to which provincial laws can infringe upon treaty rights.
In January 2009, the federal government issued a discussion paper that details its preferred regu... more In January 2009, the federal government issued a discussion paper that details its preferred regulatory route for enabling a legislative framework. This route is to referentially incorporate provincial legislation regarding operational standards through a framework statute, and then develop the details of the regime through regulations to be developed in consultation with First Nations over the next few years. Importantly, the opening sentence of the discussion paper's executive summary expressly connects water and public health. It reads: "The provision of safe drinking water and the effective treatment of wastewater are critical in ensuring the health and safety of First Nations people and the protection of source water on First Nation lands. Below I sketch out the current conditions and how the federal proposal suggests engaging these conditions. I conclude that although regulated standards will undoubtedly bring about improvements to public health, the proposal misses s...
This report is an effort to address information gaps regarding how gendered claims are addressed ... more This report is an effort to address information gaps regarding how gendered claims are addressed by adjudi-cators at Canada's Refugee Protection Division of the Immigration and Refugee Board of Canada (the RPD). It looks at one specific type of gendered claim: persecution through domestic or intimate violence. The study considers all the RPD decisions from 2004 to 2009 and judicial reviews from 2005 to 2009 that were reported in the Quicklaw LexisNexis service. These decisions are analyzed both quantitatively and qualitatively. This report finds adjudicators consistently identify domestic violence as a form of gendered persecution that can form a nexus to a convention ground. However, despite contrary directions from the Gender Guidelines, adjudicators often fail to recognize the social, cultural, economic, and psychological dynamics of domestic abuse as legally relevant for their assessment of state protection. There is a striking failure on this account when it comes to determ...
Medical Decision-Making on Behalf of Young Children, 2020
The Future of Ocean Governance and Capacity Development, 2019
, over 1,000 would-be migrants drowned in a single week while trying to cross the Mediterranean S... more , over 1,000 would-be migrants drowned in a single week while trying to cross the Mediterranean Sea.1 Most had started their journey in Sub-Saharan Africa, where gross human rights violations and civil breakdown were, and remain, rampant. Because Turkey had enhanced its border control measures to try to quell the flow of asylum seekers fleeing from Syria, it had become harder to reach the safety of European states via a land corridor. Opportunities for smugglers and traffickers increased, who routed tens of thousands of displaced people to the coastal state of Libya. Here, many migrants found themselves sold to criminal gangs or to other traffickers. They were subjected to torture, to sexual abuse by armed forces, and to forced labor and long incarcerations underground.2 In short, they found themselves enslaved or subsisting in conditions of extreme vulnerability, and ultimately directed onto large wooden boats by the smugglers and traffickers. Once well into the Mediterranean, the people were often forced onto small rafts or dinghies, to (hopefully) be picked up by European coastal patrols or otherwise make it to shore alive. In the first half of 2015, one in 16 persons drowned trying to make the crossing. This was due to the poor condition of the boats, the lack of safety equipment, overcrowding, and the inherently perilous character of ocean crossings. It was also due to the decision by the European Commission and Italian government to end funding for the humanitarian initiative Mare Nostrum. This initiative, launched due to mass drownings of trafficked migrants trying to reach Europe in 2013, had been effectively coordinating search and rescue operations near Libya during 2013 and 2014. The program was cancelled because of concerns that the increase in safety which it offered was incentivizing displaced people to take to the sea, as well as the refusal of other countries to contribute to its costs despite-or perhaps because of-having rescued
Canadian Journal of Women and the Law, 2019
Criminal Law eJournal, 2016
The Supreme Court of Canada’s decision in Carter v Canada (Attorney General) 2015 SCC 5 decrimina... more The Supreme Court of Canada’s decision in Carter v Canada (Attorney General) 2015 SCC 5 decriminalized physician assisted death in certain defined circumstances. One of those circumstances is that the person seeking assistance be an “adult”. This article argues that the regulatory response to this decision must approach the idea of “adult” in terms of the actual medical decisional-capacity of any given individual, and not rely upon age as a substitute for capacity. This article surveys jurisdictions where minors are included in physician assisted dying regimes, and identifies what little empirical evidence exists regarding requests from minors. The heart of the article considers the jurisprudence on mature minors and when they are deemed to have the right to require the withdraw of, or refuse to receive, life-sustaining treatment, and compares the reasoning in these cases with that in Carter. A particular focus is how the jurisprudence approaches decisional capacity when the individ...
Refuge: Canada's Journal on Refugees
This report is an effort to address information gaps regarding how gendered claims are addressed ... more This report is an effort to address information gaps regarding how gendered claims are addressed by adjudicators at Canada’s Refugee Protection Division of the Immigration and Refugee Board of Canada (the RPD). It looks at one specific type of gendered claim: persecution through domestic or intimate violence. The study considers all the RPD decisions from 2004 to 2009 and judicial reviews from 2005 to 2009 that were reported in the Quicklaw LexisNexis service. These decisions are analyzed both quantitatively and qualitatively. This report finds adjudicators consistently identify domestic violence as a form of gendered persecution that can form a nexus to a convention ground. However, despite contrary directions from the Gender Guidelines, adjudicators often fail to recognize the social, cultural, economic, and psychological dynamics of domestic abuse as legally relevant for their assessment of state protection. There is a striking failure on this account when it comes to determining...
SSRN Electronic Journal
This is a pre-publication draft of a chapter for the forthcoming book Social Rights in Canada (ed... more This is a pre-publication draft of a chapter for the forthcoming book Social Rights in Canada (edited by Martha Jackman & Bruce Porter) to be published by Irwin Law. ** The author thanks Martha Jackman and Bruce Porter for their encouragement to explore the issues raised in this chapter, as well as all the participants of the CURA workshop for their collegiality and scholarly generosity. The author also thanks Zeynep Hursevoglu for her meticulous research assistance.
Canadian Journal of Women and the Law
Alberta Law Review
This article considers what it would mean if Canada fulfilled select existing commitments and obl... more This article considers what it would mean if Canada fulfilled select existing commitments and obligations concerning the mental health needs of Indigenous peoples, as identified through current programs and recent jurisprudence: that is, where would we be if Canada carried through on existing commitments? After identifying the role of law in perpetuating poor mental well-being, it assesses programs for First Nations and Inuit peoples and determines they are unlikely to be effective without operational changes and responsive funding. The article then turns to the situation of Metis and non-status First Nations and the implications of Daniels v. Canada for changing the status quo – both by requiring appropriate mental health supports, and by dismantling the racist legal logic that has long undermined the mental well-being of non-status First Nations and Metis persons, by positioning them as not counting as true Indigenous peoples. The article concludes that merely fulfilling current s...
Review of Constitutional Studies Revue D Etudes Constitutionnelles, 2012