bluuebunny/crossref_metadata_2025 huggingface dataset:
Axiomatique constitutionnelle et pratique politique : un décalage troublant
Authors: Arbour J.-Maurice
Published: July 2012

The object of this paper is to consider the place which theory occupies within the framework of our parliamentary system. In particular, the purpose of this essay is to analyse the gap which exists between legal theories and facts.

While a knowledge of the past is a prerequisite to interpreting the present and estimating the future, it will only be possible in this paper to give a brief review of basic historical data ; it is an essay in law, not in legal history.

Students of constitutional law have long been only students of the cases in relation to federalism. Constitutional issues that trouble the conduct of our parliamentary system are not those with which constitutional lawyers are familiar. Issues surrounding the separation of powers are critical for the safeguard of civil liberties. It is time to consider what problems have been encountered and what plans for the future could be accepted or proposed for a better working of our parliamentary gouvernment.
Souveraineté et fédéralisme
Authors: Rémillard Gil
Published: July 2012

The notion of sovereignty is the most fundamental concept of public law. At the same time, it is one of the main difficulties federalism has to face. Where does sovereignty reside in a federal state ? While this question is not an easy one to answer, knowledge of the manner in which it has been answered in Canadian constitutional law is essential to an understanding of the present constitutional crisis.

The most appropriate definition of sovereignty is « jurisdiction to define jurisdictions ». This definition implies the concept of an ultimate authority and its application to a federal system is of great difficulty.

Two main theories confront each other. The first one develops the concept that sovereignty should be shared between the federal government and the federated states. The second sees sovereignty as belonging exclusively to the federal government, regional governments merely enjoying some form of autonomy.

This paper studies the implications of both theories in Canadian federalism.
Les réactions de la doctrine à la création du droit civil québécois par les juges : les débuts d'une affaire de famille
Authors: Jobin Pierre-Gabriel
Published: July 2012

The middle of the twentieth century marked a turning point in the history of scholarly writings on the civil law in Québec. The emergence of a full-time teaching body in the law faculties entailed consequences of primary importance: publications gained not only in quantity, but also in quality and diversity and, in particular, the reactions of legal writers to judge-made law became frequent and substantial.

The relations between legal writers and judges illustrate, here as elsewhere, the particular situation of the Québec legal system at the crossroads of civil law and common law. For instance, due to the British-inspired method of appointing judges and some local traditions, judges are personally known to many professors. Furthermore, decisions of the courts, most of the time, are written in a learned style, the merits of the legal issues being discussed and doctrinal opinions being quoted with approval or criticism.

These relations between the writers and the judiciary may explain the great interest of legal writers in judge-made law and their perhaps insufficient sense of critical responsibility vis-à-vis that law. Legal writers and judges have the great advantage of speaking the same language and of maintaining a dialogue — an advantage which benefits law itself and the whole community.
Le juge interne canadien et le droit international
Authors: Rigaldies Francis , Woehrling José
Published: July 2012

Given the almost total lack of constitutional or statutory provisions for the formulation and application of international law, Canadian courts have been invested with the basic responsibility for devising solutions to the problems that have arisen in this field. This paper examines how successful the courts have been as well as the way in which legal literature has reacted to their performance.

It is the view of the authors that in dealing with international customary law, Canadian courts have applied solutions adapted from the law of Great Britain in a purely empirical way. While the absence of any theoretical framework has not been a crucial impediment until now, it is difficult to see how future problems can be resolved without any reference to basic principles. With respect to the interpretation and application of treaties, the transposition of principles derived from British practice to a federal context has been the source of notorious constitutional difficulties.

Generally speaking, because of the traditional reverence accorded to the will of Parliamant, Canadian courts have been reluctant to recognize any measure of supremacy to international law.
La connaissance judiciaire des actes réglementaires
Authors: Barbe Raoul P.
Published: July 2012

This paper describes the state of federal and Québec law as regards judicial notice of statutory instruments.

The position in respect of federal instruments is first surveyed by reference to the provisions of the Canada Evidence Act and Canadian and British cases on the subject ; mention is then made of the now superseded Regulations Act of 1950 and the questions of interpretation that arose from it; and finally the impact of s. 23 of the Statutory Instruments Act of 1971 is evaluated in the light of the Supreme Court ruling in R. v. The « Evgenia Chandris ».

The position in Québec law appears to be somewhat more confused. While the rule that regulations should be a matter for judicial notice seems well secured by s. 105 of the Summary Proceedings Act, this obviously only settles the point as regards penal proceedings under provincial statutes. In civil litigation, in the absence of any clear statement that regulations are to be judicially noticed, caution would seem to advise litigants to specifically plead and evidence the existence of regulations they intend to rely on.

The author concludes by calling on the Québec Legislature to state explicitly the rule that regulations are a matter for judicial notice in any kind of proceedings.
La prévention juridique
Authors: Roussin Claude
Published: July 2012

In recent years, the practice of law has come under renewed criticism as to the objectives it pursues. Out of this debate grew the concept of preventive law. This paper seeks to explain the meaning of preventive law and demonstrate its relevance for the legal system of Québec, by outlining its main features, its peculiar methods and a strategy for its implementation.

Preventive law can be most clearly distinguished from the traditional practice of law by a shift in priorities away from litigation to the maximization of certainty as to one's rights and duties. This new approach involves reform-mindedness, sensitivity to the citizen's needs and an offensive rather than defensive outlook.

The typical preventive-law method is the annual check-up of the citizen's « legal health ». This requires the devising of checklists through which the safety of legal transactions may be ascertained. Other preventive-law methods include standard contract forms and legal self-aid kits.

The implementation of a preventive-law approach should involve three centres of responsibility. The lawyer's office would of course remain the major stage on which the practice of law is carried out. But the focal point for initiating and developing preventive-law methods must be located elsewhere. In the Quebec context, the Société québécoise d'information juridique, being already active in the field of legal information, seems naturally suited to the task. In the short term, however, law schools must provide the initial impetus towards a policy of legal prevention.
La pêche dans le droit romain
Authors: Hallé Michel
Published: July 2012

Looking back to the Roman era, one can see that the regulation of fisheries already formed a coherent whole which is still interesting to analyse today.

The oceans, seas and their shores are res communes, meaning that no one can own these things, or that everyone can make use of these things freely as long as this does not interfere with someone else's right. By contrast, rivers and their banks as well as harbours are classified res publicae, i.e. State property, but assigned to common use. Some fishing places were the exclusive property of the Roman State (res in patrimonio populi) and liable to be leased.

Fishing was a legally well defined activity, under strict control by the State: later generations have drawn inspiration from Roman rules in this field.
La notion de famille et son impact en droit social
Authors: Castelli Mireille D.
Published: July 2012

This paper surveys references to the family in social legislation, with more specific regard to social security schemes providing coverage to a broad section of the population. Such references are seen as involving two types of questions. First, do statutory references to the family invoke a definite concept of the family cell ? And second, in what ways do family relationships influence one's position under social security legislation ?

Thus the first part of the paper is an attempt to elucidate the concept of the family underlying social security legislation. This is done by considering the legislative treatment of three components of family relationships, which seem to play, either separately or in conjunction, a particularly significant role in statutes of this type : the network of interpersonal relationships that are included in the family, the concept of dependency, and the consequences attributed to cohabitation.

The second part of the paper surveys the impact of family relationships on rights and duties under social security legislation. This part opens with a broad description of social legislation generally, followed by a threefold classification of social security schemes according to the type of economic hazard against which compensation is provided: loss of income, lack of income, increase in needs. The impact of family relationships in each group of statutes is then brought under detailed analysis, and a number of anomalies are pointed out.

The general picture disclosed by the paper is one of severe confusion, both as to the concept of the family itself and as to the impact of family relationships on social security benefits. While inconsistencies of the latter kind may be explained and justified in a number of cases, it seems desirable that a single concept of the family be adhered to in all social security statutes. This, however, should not preclude variations where warranted by the policy of the Act, general standards of morality, or the particular purpose sought by statutory reference to family relationships.
Vers une révision du processus et du cadre d'élaboration de la décision administrative au Québec
Authors: Longtin Marie-José , Bouchard Mario
Published: July 2012

In this study, the authors examine various models for reviewing the system and procedural framework of administrative action in Québec. Firstly, they explore the solutions previously advanced as far as Québec is concerned, then those that have been adopted in other jurisdictions. Next, after identifying the principle decision-making agents of the administration, they enumerate the other factors to be considered in devising a model system, such as the assigned powers of the decision-makers, their procedure, the rules controlling their decision-making, and the establishement by the decision-makers of norms governing the exercise of their discretionary powers.

These parameters having been determined the authors go on to evaluate, from various aspects, those solutions that have already been proposed and also others which offer themselves for consideration. In that regard, after discussing the classification of administrative bodies, they analyse the merits of a single or dual jurisdictional authority from the structural and constitutional perspective ; they pause to examine the very notion of administrative authority before going on to deal with the issue of an overall control of administrative bodies, such control being exercised by means of an Administrative Council. Then, after discussing the power given to an administrative body or agency to review its own decisions, they analyse the controversial issue of administrative procedure ant the codification of those rules, and go on to propose, as a possible solution, a flexible codification that is restrictive in part yet adaptable to the individual circumstances of the bodies concerned.

In concluding that the existing patchwork of administrative decisionmaking must be satisfactorily resolved, and before indicating what corrective action should be studied, they attempt to identify the questions that have to be answered before undertaking review of the system and procedural framework of administrative action, the need for which review having been seen as imperative right from the outset.
Les droits et les obligations des époux : les régimes matrimoniaux
Authors: Groffier-Attala Éthel
Published: July 2012

Bill 69, which came intoforce on April the 2nd 1981 ; brought about important changes in the field of matrimonial regimes. The main ones, hereinafter examined, concern the withdrawal of community of moveables and acquests from the Civil code, the limits improved upon liberty of marriage convenants, the decline of matrimonial regimes as an institution due to the Judge's increased discretionary power, the procedure pertaining to a change of matrimonial regime and, finally, the modifications to the legal regime of partnership of acquests.
Le régime primaire dans le nouveau Code civil du Québec : quelques remarques critiques
Authors: Caparros Ernest
Published: July 2012

The author points out, in the introduction, that the reform introduced by Bill 89 is limited to one of the nine Books that the new Civil Code of Québec will have, and that even in this Second Book only 151 articles are in force.

He then studies the contribution of the spouses to the needs of the family as regulated by the new provisions: the mutual obligation to contribute is now imposed by law. The autor regrets that the new Code restricts the concept of contribution in the form of work to household work. He underlines that the solidarité aimed at by the new provisions may be jeopardized by the continued application of rules from the present Civil Code of Lower Canada.

As for the protection of the family residence, the author indicates how this protection is in some cases very limited and questions the efficiency of the formalities required. He also regrets that the new provisions concerning the fate of the family residence at the end of the cohabitation have not been put in force yet.

Finally, he criticizes the provisions concerning judicial intervention in family matters.
Quelques mots sur la recevabilité des éléments de preuve extrinsèques devant les tribunaux : le Canada et les États-Unis
Authors: Hudon Edward G.
Published: July 2012

This article is a comparison of the use of extrinsic materials by the courts of Canada and of the United States in the interpretation of statutes. The author points out that in the United States the courts have reached the point where just about everything is admissible — particularly legislative debates, committee hearings and reports — but that in Canada the use of extrinsic materials is limited to the determination of the constitutionality of a law or statute.

Although the courts of Canada are becoming more and more liberal in the use of extrinsic materials, the use of legislative debates is still not generally permitted even though they were used by one Justice of the Supreme Court of Canada in the Anti-Inflation Act Reference. The author wonders how long it will be before the Supreme Court of Canada will abandon the little that is left of the English tradition and permit the use of extrinsic materials not only in the determination of the constitutionality of a statute, but also in its interpretation.
La Charte de la langue française et la langue du travail
Authors: Garant Louis
Published: July 2012

The 1977 « Charte de la langue française » can only be considered as a major event in the history of the French language in Quebec. The law enacting the Charter states, in its first section, that French is the official language in Quebec. Consequently, French is the language of work in Quebec. The « Office de la langue française », therein instituted, is empowered to see that fact and law be but one in such field.

The following pages will be concerned mainly with the interpretation of the various sections of the Charter relative to the language of work, interpretation which will envisage the possible jurisdictional conflicts as well as take into account the consequences of the application of the Charter in labour relations.
Le vice de forme et le droit municipal
Authors: Rousseau Gilles
Published: July 2012

How are administrative acts of local governments — as opposed to judicial and quasi judicial acts — affected by informality or, more generally speaking, by procedural irregularities ? The author ventures a few answers to the question in his analysis that spans from prerequisites to initial implementation
Le règlement des litiges commerciaux dans un système sans tribunaux de commerce : l'expérience québécoise
Authors: Lilkoff Lubin
Published: July 2012

Quebec's Civil Code acknowledges the existence of a dual regime including both civil and commercial juridical operations. This distinction, which is derived from French Law, also exists in Belgian and German Law. These countries have created specialized commercial courts or tribunals with jurisdiction over commercial matters. They are staffed with judges drawn from business.

One may ask how in fact a dualistic system of this nature functions in Quebec, given the absence of such special commercial tribunals. It may be noted that although there is no body of commercial law dealing exclusively with traders, there exists in fact a system of business law comprehensive enough to apply also to non-traders (Part I). In addition, the informal nature of the procedural rules, as well as the background of the judges who are selected mainly from the ranks of practising lawyers, permits one to discern a close resemblance between litigation before these courts and the conduct of trials before commercial tribunals (Part II).
La prise de possession par le fiduciaire en vertu d'un acte de fiducie
Authors: Cordeau Michel
Published: July 2012

Under the Special Corporate Powers Act of the Province of Quebec, a trustee for bondholders, in the event of failure of the corporation to fulfil the conditions of the trust deed, is empowered to take possession, to administer and to sell the assets on which security was given, for the benefit of the bondholders. However, Quebec law does not specify the duties of the trustee when he exercises his powers and this has resulted in numerous court debates.

In the first part of this article, the nature of the security obtained under a trust deed is examined in order to establish the framework within which the powers of the trustee are exercised. The second part of this article examines the duties and powers of the trustee when he takes possession, when he administers and when he disposes of the property of the corporation.

The author emphasises the inadequacies in the law of Quebec, particularly as to the definition of the duties and powers of the trustee and to the judicial mechanism enabling the trustee for bondholders to take possession and to sell the assets of the corporation. The resulting difficulty of determining the respective rights and duties of the trustee and the corporation gives rise to ambiguous situations.
La responsabilité des agences de voyages : les tendances de la jurisprudence récente
Authors: Rousseau-Houle Thérèse
Published: July 2012

A travel agent's liability normally differs according to whether he merely acts as a middleman between clients and service suppliers or whether he himself organizes travel. Court decisions reveal nevertheless that proper qualification of the relationship is not necessarily a prerequisite as to the rules applicable. The overriding criterion appears rather to be consumer protection. Consequently, the burden of proof on the consumer has been slightly reduced and travel agents are more often than not held liable under an obligation of result.
Le contrat comme technique de participation des citoyens aux décisions en matière énergétique
Authors: Guibal Michel
Published: July 2012

Contractual techniques have known a remarkable development in French administrative law. Contractual relations between different government agencies and individuals have reflected a change in the relationship between the State, central agencies and corporations on one side, and local authorities, associations and individuals on the other. « Inequality, Hierarchy and Government Supervision » have been partially replaced by « Equality, Participation and Autonomy ».

In this article, the author describes some instances where contractual techniques were used to promote the participation of local interests in energy decisions. He points out the consequences of such a technique of participation and concludes that its main problem is the representativeness of the participants
Le rôle du contrôle juridictionnel comme technique de participation
Authors: Henry J. P.
Published: July 2012

The use of the « costs-advantages balance » theory by the French Administrative Courts would appear to give them a far-reaching supervisory jurisdiction over administrative decisions.

However, precedents concerning environmental consequences of proposed nuclear plants show that the Courts are ill-equipped to deal with such cases and apply the « costs-advantages » theory. Therefore, they are reticent to annul administrative decisions as ill-founded or unreasonable.

The concept of abuse of power is also of little help since it is almost impossible for the Courts to substitute their own findings to the Administration's as to the public necessity of a project.

In conclusion, the Administrative Court is not an appropriate forum and the system may only gives false hopes to ecologists and others who pursue changes in government energy orientations and decisions.
L'article 7 de la Charte canadienne des droits et libertés et les principes de justice fondamentale
Authors: Duplé Nicole
Published: July 2012

The author seeks to identify the different guarantees provided by the principle of fundamental justice under article 7 of the Canadian Charter of Rights and Freedoms as interpreted by the Courts. The importance of such guarantees varies depending on whether the Courts limit the application of the principle to procedural matters or consider them to be of wider application.
An Evaluation of Canada's Dangerous Offender Legislation
Authors: Shore Jacques J. M.
Published: July 2012

L'auteur s'intéresse dans cet article à la partie XXI du Code criminel relative aux délinquants dangereux. L'évolution historique des dispositions législatives concernées est tracée à l'aide d'une comparaison avec la législation en vigueur en 1977. Les problèmes juridiques découlant de ces dispositions et les objectifs de la législation sont ensuite présentés ainsi que la procédure spécifique d'obtention d'une sentence de période indéterminée. L'auteur décrit les difficultés d'application de la loi et identifie certains résultats incongrus transparaissant de la jurisprudence récente. De plus, l'impact potentiel des articles 1, 9, 11 et 12 de la Charte canadienne des droits et libertés sur la partie XXI du Code criminel est évoqué.

L'auteur critique les procédures de remise en liberté des délinquants dangereux et suggère que les tribunaux plutôt que la Commission nationale des libérations conditionnelles soient habilités à rescinder une sentence de période indéterminée.

L'article conclut en recommandant que les dispositions existantes de la loi relatives aux délinquants dangereux soient abrogées et qu'un nouveau régime sentenciel, excluant l'option d'une sentence pour une période indéterminée, soit établi. L'auteur suggère également, advenant que la législation actuelle relative aux délinquants dangereux perdure, que soient réévaluées les règles de preuve et d'audition responsables de l'échec du système existant.
Les saisies et perquisitions en matière fiscale : le contribuable n'est plus maître de sa maison
Authors: Lareau André
Published: July 2012

In order to remind those taxpayers who forgot to pay tax on some of their income, the search and seizure procedures have been put back to work in the last few years.

This article does not question the validity of the principle itself. However, it analyzes the frequent problems that arise with respect with the seizure, whether they be related to an overzealous civil servant or to the agreement given by the judge. It also finds that more and more judicial procedures are available to the taxpayers to help them in their fight against the taxman.
Justice civile et communauté rurale au Québec, 1880-1920
Authors: Normand Sylvio
Published: July 2012

At the turn of the century, civil justice in rural communities was organized into three non-judicialized instances : 1) the Commissioners' Court, 2) the Court of Justices of the Peace and 3) Conciliation measures. In this paper the institutional characteristics of these three community-type instances are examined. A study of available judicial statistics indicates that the level of activity of these instances went through a pronounced decline during the period between 1880 and 1920, specifically because of the high inflation rate.

A brief study of judicial records of the Commissioners' Court of Saint-Raymond de Portneuf makes it possible to draw a profile of those who came under the jurisdiction of this kind of court. An examination of legal commentary and judgements on applications for the writ of certiorari reveals the perception that the legal world then had of rural justice.
Property Rights, Municipal Corporations and Judicial Review
Authors: Giroux Lorne
Published: July 2012

Cet article étudie l'évolution récente du rôle joué par la Cour supérieure pour assurer la protection des droits individuels dans le secteur du droit de l'aménagement et celui du droit municipal. L'étude porte sur deux champs d'intervention publique sur les droits individuels, en particulier le droit de propriété, et illustre les modes divers d'intervention utilisés par la Cour supérieure dans son rôle de surveillance.

D'une part, la Loi sur la protection du territoire agricole sert à illustrer un modèle d'aménagement sectoriel fondé sur l'usage de la discrétion administrative comme méthode de protection. L'intervention des tribunaux se révèle sous trois aspects. D'abord la Cour supérieure se préoccupe d'imposer un minimum de discipline aux procédures devant la Commission de protection du territoire agricole, surtout dans les cas où il peut en résulter des injustices. Ensuite, le droit d'accès aux tribunaux ordinaires est protégé par la Cour grâce en particulier à une interprétation restrictive de la juridiction de la Commission. Enfin, le droit de propriété lui-même est protégé par la Cour supérieure qui restreint les pouvoirs d'intervention de la Commission mais favorise une interprétation libérale des droits acquis.

A l'opposé, les interventions des collectivités locales en matière d'aménagement et d'urbanisme sont fondées sur le pouvoir réglementaire plutôt que sur la discrétion administrative. Même si le contrôle judiciaire sur le pouvoir réglementaire est un domaine déjà riche de tradition au Canada et au Québec, la jurisprudence récente tout en rappelant des principes déjà connus illustre également de nouvelles tendances. En effet, alors que les tribunaux continuent à préserver l'élément de certitude et de sécurité que le règlement fournit aux citoyens, ils sont prêts à protéger les citoyens contre les interventions publiques abusives et ils ont à cette fin revitalisé le critère de la rationalité comme mode de contrôle du pouvoir réglementaire. De plus, au besoin, ils vont être prêts à intervenir dans l'allocation même des usages et des affectations du sol lorsqu'ils doivent se prononcer sur des questions de discrimination et d'intérêt public.
Les articles 8, 9 et 10 de la Charte canadienne des droits et libertés
Authors: Choquette Marie
Published: July 2012

Legal rights protected under sections 8, 9 and 10 of the Canadian Charter of Rights and Freedoms are the subject of this article. Section 8 affords protection against unreasonable search or seizure; there was no similar provision under the Canadian Bill of Rights. Authorized searches and seizures by warrant will be considered unreasonable whenever minimal standards laid down in section 443 of the Criminal Code have not been respected. Furthermore, searches or seizures without warrant will be judged unreasonable if they do not conform to the legal provisions under which they are authorized. Section 9 protects against arbitrary detention or imprisonment. Some judges deem detention to be arbitrary if it is not authorized under statute, while others feel that detention is arbitrary whether authorized by statute or not if it be capricious or unreasonable. Finally, section 10 provides for certain rights to a person who is arrested or detained, such as the right to be informed of the reasons for arrest or detention, the right to be informed of his or her right to retain and instruct counsel and the right to do so, and the right to have the validity of the detention ascertained.
De la lex scantinia aux récents amendements du Code criminel: homosexualité et droit dans une perspective historique
Authors: Demers Robert
Published: July 2012

This paper deals with the legal approach to homosexuality throughout history, focussing on Roman law, French law up to the Revolution, English law till the mid-60's and finally, Canadian law from the French period up to the amendments to the Criminal Code in 1969. What lessons can be drawn from this analysis? A first conclusion is the increasing intolerance towards homosexuals as evidenced by laws that become more and more preoccupied with private morality and control of individual behaviour. Here, we notice the inverse trend in the Roman law tradition and the common law one, where cultural and religious differences explain much of this curious evolution. A second conclusion is the link established between deviant behaviour and all forms of « deviance » from official policies-thus, accusations of homosexuality are to be found in troubled periods of religious (heresies) and political turmoil. Finally, one notes that although the Medieval period is often considered as being particularly cruel in its treatment of homosexuals, this view would need important qualifications in light of the 20th century treatment of such persons, witness of course, the Nazi extermination.
La Cour européenne des droits de l’homme
Authors: Eissen Marc-André
Published: July 2012

The European Convention for the Protection of Human Rights and Fundamental Freedoms came into force on September 1953. In 1959, the European Court of Human Rights began its work which is to apply the Convention to particular cases. Since then, it has delivered 94 judgments. For Canadian Lawyers, since the Canadian Charter of Rights and Freedoms has come into force, the European Court and its decisions are of particular signifiance.

The following article concerns the Court itself, especially the status of its judges. It also concerns the functions, powers and procedures of the Court and lastly relates the spirit with which the Convention has been applied to the National Laws of the Members of the Council of Europe for the past 25 years.
Introduction
Authors: Beaupré R. Michael
Published: July 2012

A comparative study of the interpretative methodology applicable in multilingual jurisdictions such as Canada, Belgium and Switzerland and before the Court of Justice of the European Communities reveals some remarkable similarities as well as some important differences. The four papers that follow were presented during a seminar on the theme « Interpretation of Multilingual Statutes and Treaties » that was held in Strasbourg on July 10, 1984 under the auspices of the Canadian Institute for Advanced Legal Studies. The Canadian author of one of the papers also served as rapporteur for the seminar. His report serves as an introduction to the four papers.
L'expérience canadienne et québécoise de révision constitutionnelle : leçons et perspectives
Authors: Morin Claude
Published: July 2012

The author suggests various answers to two questions dealing with constitutional reform in Quebec and Canada. The first question is : What can be learned from the experience of Quebec and Canada in the field of constitutional reform ? The author makes two suggestions which underscore the following : the concern with constitutional matters has been greater in Quebec than anywhere else in Canada i.e., in part because the conception of federalism in Quebec differs from that of English-Canada, despite the use of the same words. In discussions about constitutional reform, priorities have been different for Quebec and for the rest of Canada. None of the serial discussions about constitutional reform has given Quebec the type of federalism that it wants ; Ottawa falls back upon federal official language and bilingualism policies as a placebo for an in-depth reform of federalism.

The second question is : what is the present perspective for Quebec ? Here, a distinction must be made between what should be done and what could be done. What should be done includes, among other things : recognition in the Constitution of the existence in Quebec of a distinct society ; new separation of federal and provincial powers : veto right for Quebec to constitutional amendments excepting in matters regarding federal institutions ; selection of members of the Senate by the provinces. As to what could be done, let it be said that most of these reforms would probably not be accepted by the other governments in Canada because they would probably modify Canadian federalism.
Le conflit fédéral-provincial au Canada : raisons et solutions
Authors: Robertson Gordon
Published: July 2012

The author seeks to identify why Canada, as a country, has not faired out well in recent years and finds that the source of our problems lie deep in the mechanisms of federal-provincial relations. Four factors make these relations difficult : the differences flowing from distinct ethnic and linguistic origins, inadequacy of various institutions of our central government, the unclear and uneasy balance of federal-provincial powers and the extent of activity by our governments that are pressing at the outer limits of their jurisdictions.
Commentaires sur le rapport du Comité mixte spécial sur la réforme du Sénat
Authors: Tremblay Arthur
Published: July 2012

In this article the author comments on the feasibility and urgency of adopting propositions from the seventh and the last chapters of the report from the Special Committee on Senate Reform. These chapters deal with the selection of senators, their mandates, the powers of a nominated senate and the internal organization of the Senate. He has choosen these reforms because they could be achieved relatively easily and quickly by the power of the Senate itself, that of the Parliament, the initiative of the Prime Minister or the senator and their political groups.

Tremblay suggests that these reforms would not radically change either the essential order of things or serve to restore the image of the Senate. However, he cites the committee's non-renewable nine year mandate, the change in the number of senatorial seats and fair regional representation as in-depth reform measures which could only take place after certain constitutional modifications.

The author concludes by saying that due to the present constitutional climate and the history of shelved reform reports, a modest and realistic approach to senate reform should be adopted. The reforms proposed in chapter seven of the Committee's report would be best undertaken by the Senate itself.
Quelques propositions
Authors: Beaudoin Gérald-A.
Published: July 2012

The rules of procedure in the House, the powers of the Speaker, the vote of non-confidence, the proportionnai representation vote as well as the future of parliamentary government, are some of the questions the author deals with when expounding upon the reform of the House of Commons.

More powers should be given to the Speaker, and there should be a system where sessions and votes are held on a more regular basis, even if the principle of responsible government is maintained. The proportionnai representation vote is not for the immediate future and the author wonders whether a presidential system as in France would be appropriate for Canada.
The Unreformed Canadian House of Commons
Authors: Jackson Robert J.
Published: July 2012

Le Parlement évolue constamment et si l'on veut qu'il soit efficace, il faut que ses pratiques reflètent l'évolution de la société. L'auteur propose des changements dans le processus législatif la surveillance de l'exécutif, la représentation et l'organisation de la Chambre des communes car la société et l'appareil gouvernemental se développent plus rapidement que les mécanismes de cette chambre.
A Response to the Suggested Amendment Relating to Provincial Administrative Tribunals
Authors:   The Canadian Bar Association
Published: July 2012

L'objet de cette étude est de proposer les changements qui pourraient être apportés à l'article 96 de la Loi constitutionnelle de 1867 et d'examiner les propositions du Gouvernement canadien à cet effet. L'accent est mis sur une vision équilibrée des facteurs suivants: un examen du rôle légitime des tribunaux administratifs et des cours inférieures dans notre système judiciaire, le respect et la sauvegarde du rôle des cours supérieures et la nécessité d'indépendance et d'impartialité des tribunaux.
Enfin une loi-cadre des sociétés d'État au fédéral
Authors: Garant Patrice
Published: July 2012

Bill C-24 relating to control of federal Crown corporations or State enterprises is among the best legacies of the Trudeau Administration. Federal State enterprises constitute an important economic empire that have caused some concern to many people over the last ten years. The Auditor General, the Commons Parliamentary Public Accounts Committee, the Lambert Commission on financial management and accountability, the Economic Council and other groups or individuals have made studies and proposals for reform. Three bills were introduced: C-29 by the Clark Government in 1979, C-123 in 1982 and C-153 in 1983 by the Trudeau Government ; all of them prior to bill 24 which has been a major innovation in the field of public law as it has introduced into the Financial Administration Act sixty sections dealing with the legal status of that which is so rightfully called the « Sociétés d'État » and with the ever so important question of controls exercised over them by Parliament and Government (Cabinet, Treasury Board, responsible minister and Finance Minister).

Bill C-24 regulates over 400 institutions of the public economic sector, directly or indirectly. It is a major step towards the clarification of a branch of public law that has not yet reached a degree of sufficient maturity, coherence and fitness as to the objectives and needs of a political system that remains liberal and of an economy that is really a mixed economy.
Une étude des tenants et aboutissants des articles 271 et 272 de la Loi sur la protection du consommateur
Authors: Dumais Claude-René
Published: July 2012

The new Consumer's Protection Act came wholly into force on April 30, 1981 under the title of Chapter P 41.1 of the Q.R.S., replacing and clarifying the former Consumer's Protection Act enacted in 1974 as Chapter 74.

The new Act goes so far as to change some century-old rules of the Civil Code, including the law of proof, all in favour of a better deal for the consumer. In almost every case of abuse or violation of any section of the Act, the consumer must simply prove that the merchant violated one or more of its sections in order that penalties of sections 271 and 272 apply.

The types of applicable penalties depend on the offence : Did the businessman simply overlook what the Act considers a mere formality ? Then the contract is voidable where a defence of lack of interest lies. Did the businessman contravene what the Act considers a fundamental right of the consumer? The consumer has a choice of remedies : — execution of the obligation by a third party ; — reduction of costs ; — annulment or resolution of the contract, the whole with a possible demand of damages, real and exemplary. The article explains the differences between form and substance as accepted by statute or case law, and the solutions applied. The correlation with other parts of the Civil Code, untouched by the Consumer Protection Act, is also studied, both in matters of proof, intent, and possible unjust enrichment of the consumer.
Quelques réflexions à propos du document de la C.R.D. traitant de l'homicide
Authors: Manganas Antoine
Published: July 2012

The present study is a critical approach to the Canada Law Reform Commission document concerning homicide. This study deals with two particular aspects of the law of homicide.

In the first chapter we suggest the creation of a special category of homicide, the « homicide passionnel », for the following reasons : first of all the substantive defences, like intoxication, self-defence, diminished responsibility and provocation are too narrow. Especially with provocation, the application of the objective test is detrimental to the more vulnerable population which lacks educational and financial resources. Secondly, we cannot compare the robber who kills by using his weapon with the person who kills in a state of excitement, jealousy or anger. Besides, many foreign laws have recognized this category of « hot-blood » homicide. So, we think that is time for Canada to abolish the defence of provocation (s. 215 Cr. C.) and create this specific offence.

In the second chapter, we suggest criminalization of homicide by negligence. Actually, we can see the difficulty judges have in convicting someone for criminal negligence when the death of a person is due to trafic « accident ». Many foreign criminal codes have created this offence. We find it fair to impose the duty of the reasonable person on those who take certain risks by using motor vehicles or other machines for their benefit or spare time.
La nature, le rôle et l'influence de la doctrine universitaire en droit administratif québécois
Authors: Macdonald Roderick A.
Published: July 2012

In view of the increasingly divergent tendencies in legal scholarship, many authors are reconsidering whether « la doctrine » can really serve as a formal source of law. Since university professors are primarly responsible for producing this scholarly commentary, at least in the field of administrative law, it is worth asking two related questions : first, does university scholarship in law have a specific purpose or logic ? and second, does the nature of administrative law require that this scholarship have a particular direction ?

In this essay, both questions are answered in the affirmative : University legal scholarship has a synthetic function not shared by ordinary legal writing, and given the case law foundations of the administrative law, this scholarship must also reveal the underlying conceptual structure of the subject.
Ways for Insuring the Protection of Minorities
Authors: Tarnopolsky Walter S.
Published: July 2012

La première question qui se pose est celle de définir ce que sont les droits des minorités. L'auteur l'aborde en examinant la reconnaissance qu'ont reçue ces droits dans le passé, à travers les traités internationaux, les constitutions d'autres pays ainsi que l'expérience canadienne. Il s'attarde sur la distinction à faire entre « droits individuels » et « droits de minorités ». L'essence de cette distinction se situe surtout dans le fait que la protection des groupes minoritaires exige une action positive du gouvernement tandis que celle des droits individuels ne nécessite aucune intervention.
Le Conseil de l'Europe et les droits des minorités
Authors: Leuprecht Peter
Published: July 2012

This survey deals with the problem of linguistic diversity in Europe. In what way does the Council of Europe react to what is commonly called there the « new minorities » composed of immigrants and refugees ?

The Director for Human Rights at the Council of Europe first covers guarantees provided to members of minorities under the European Convention on Human Rights (article 14), then describes attempts made by the Council of Europe to protect minorities as such.

As for the new minorities, the Council is taking action to favour intercultural education. Its policy aims a both preserving European languages in their diversity and encouraging multilingualism which is of such nature as to facilitate communication and understanding between different peoples
À la recherche d'une protection efficace contre les inspections abusives de l'État : la Charte québécoise, la Charte canadienne et le Bill of Rights américain
Authors: Angers Lucie
Published: July 2012

Many laws in Canada and Québec grant rights of entry to inspectors responsible for looking after the proper operation of structures implemented by the State. From heavily regulated industrials to permit holders and simple citizens, everyone can expect someday to be paid a visit by an inspector. The question arises, however, as to whether the Canadian Charter of Rights and Freedoms and the Québec Charter of Human Rights and Freedoms may be resorted to so as to exercise control over possible abuses resulting from such inspections.

These Charters provide security for the person against the State in these areas whether through the right to be protected from unreasonable search and seizure, the right to a private life or to the inviolability of the home. However, the means by which such rights shall be adequately protected are somewhat uncertain. Should this be done by the granting of an administrative warrant issued ex parte as in the United States ? Or by granting the same kind of warrant in the presence of both parties ? The granting of administrative subpoenas also may be a solution to be considered. But for both legal and administrative reasons, it seems that the best control to exercise over these entries would come from drafting well-defined powers of inspection into the law granting them, which would provide an adequate protection of human rights and freedoms.
La valeur de l'enseignement du droit et ses valeurs
Authors: Verge Pierre
Published: July 2012

Law teaching is far from aseptic. Professional objectives and attitudes currently enhance values that are inherent to the legal system and are well received in the juridical community to which students aspire to belong. Does it devolve on the teacher of law to question legal rules and institutions beyond their normative coherence ?
L'application des règles d'interprétation constitutionnelle
Authors: Langlois Raynold
Published: July 2012

With the advent of the Charter of Rights, the field of Constitutional Law is no longer reserved to a few scholars. The fundamentals at least of the art of constitutional interpretation must be part of the daily arsenal of every lawyer. Constitutional interpretation is by no means mechanical. Constitutional enactments must develop and grow like a living tree. They must be read and applied with a degree of political sensitivity, historical perspective and a good deal of common sense. We must draw on the wealth of constitutional precedents and authorities gathered since 1867 especially for the first stage of Charter interpretations where the content of the rights intended for protection is analysed. New rules are being developed for the second stage where an attempt is made to save conflicting laws on the basis of a section 1 "reasonable limit (...) demonstrably justified in a free and democratic society."