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Full-Text Articles in Jurisprudence
From Judging Culture To Taxing 'Indians': Tracing The Legal Discourse Of The 'Indian Mode Of Life', Constance Macintosh
From Judging Culture To Taxing 'Indians': Tracing The Legal Discourse Of The 'Indian Mode Of Life', Constance Macintosh
Articles, Book Chapters, & Popular Press
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 …
Judicial Reasoning About Pregnancy And Choice, Jocelyn Downie, Chris Kaposy
Judicial Reasoning About Pregnancy And Choice, Jocelyn Downie, Chris Kaposy
Articles, Book Chapters, & Popular Press
Women in Canada are at risk of abortion becoming increasingly difficult to access. In its landmark 1988 ruling, R. v. Morgentaler, the Supreme Court of Canada struck down the prohibition of abortion in section 251 of the Criminal Code on the grounds that it violated a section of the Charter of Rights and Freedoms which guarantees, among other things, "security of the person". However, all of the justices who ruled that section 25 unconstitutional nonetheless claimed that protecting the fetus is a valid objective of federal legislation, leaving open the possibility that a different and carefully crafted law against abortion …