bluuebunny/crossref_metadata_2025 huggingface dataset:
Approche réglementaire de l'aménagement urbain
Authors: Kenniff Patrick
Published: July 2012

This article is a modified version of a paper delivered at a Conference on the methodology of planning and development held at Trois-Rivières on May 19-20, 1977.

Much of municipal control of urban development in Canada today is carried out through the regulatory process. Master plans, zoning, subdivision control and building by-laws are the mainstays of this system.

In recent years, the legislatures of most Canadian provinces have incorporated in their respective Planning Acts certain mechanisms designed to improve the municipal regulatory response to the challenge of urban change. These mechanisms often appear to be needlessly complicated, whereas they are in fact designed to circumvent certain difficulties which are inherent in the classical regulatory system. The main objectives which these new mechanisms seek to attain are greater flexibility in the decision-making process, better phasing of development and increased public participation at all levels of planning and decision-making.

This article concentrates on the law of the province of Québec, but reference is frequently made to the legislation of other Canadian jurisdictions in order to indicate which avenues might be followed in Québec in order to reform the law governing municipal planning by-laws.

After a brief introduction, the second Part of this article is devoted to canvassing the principal legal rules governing municipal planning bylaws: first, with respect to by-laws in general; second, with respect to the extent of the limited powers delegated to municipalities; third, with respect to the adoption and amendment procedure for planning by-laws.

The third Part is devoted to a comparative analysis of certain legal mechanisms some of which have become commonplace in other Canadian provinces but which remain largely untried in Quebec. These include minor variances, conditional uses, bonus zoning, site plan by-laws, contract zoning and development control. All of these techniques tend to favour greater flexibility in the administration of land-use planning.

Other devices are more useful in seeking to achieve phased development. These include holding by-laws and the requirement that land be serviced before a building permit will issue (the latter technique has been in use in Quebec for many years and is authorized to a limited extent by statute).

The article concludes by pointing out that some of the mechanisms canvassed would be of considerable use to town planners in Quebec and should be recognized by statute, preferably in the forthcoming Planning Bill which the present government has promised to introduce in the near future. Town planners should be wary of using them without such legislative sanction, however, because the Canadian courts, with limited exceptions such as in the case of holding by-laws, have struck down attempts by municipalities to step outside the limited statutory authority vested in them.
Observations sur le Rapport de l'Office de révision du Code civil sur les sûretés réelles
Authors: Poudrier-LeBel Louise , LeBel Louis
Published: July 2012

The Security Law Committee of the Civil Code Revision Office of the Province of Quebec issued its report late in 1975 ; it advocates fundamental changes in the law of security. According to the Committee, the notion of hypothec should be broadened in Quebec Law. It would become a form of security interest in all kinds of property, moveable or immoveable, corporeal or incorporeal. Legal privileges and construction liens would disappear.

The authors comment on the reforms advocated by the Committee. They sommarize their main aspects and some of their effects on existing legal and commercial practices. They suggest a reassessment of the outright abolition of construction liens and discuss some of the problems raised by the regulation of hypothecary recourses in the Report.
Le Rapport de l'Office de revision du Code civil sur la personnalité juridique
Authors: Deleury Edith , Demers Robert
Published: July 2012

The Civil Code Revision Office has produced an interesting report on legal personality. In this commentary, the authors have sought to underline the major changes suggested by the Report and to criticize certain positions adopted therein.

The major areas of controversy, such as the respect of privacy, the rights of children and the nature of corporations as fictitious persons have been examined in some detail. On the whole, the Report produces a fine compendium of the existing rules whilst suggesting changes that reveal a conscience of the urgent problems on the question.
La discrétion administrative et la mise en oeuvre d'une politique
Authors: Atkinson William J.
Published: July 2012

This article deals with the relationships between the exercise of administrative discretion and the implementation of a policy. Chapter I defines administrative discretion as a power to make a choice in a particular case. This choice may be technical or political but in both instances relates to the implementation of a policy. The exercise of discretion is also situated within a system under the Rule of Law using H.L.A. Hart's concepts of primary and secondary rules.

Chapter II deals with the exercise of discretion in relation to policy. First, if refers to K.C. Davis' model of confining, structuring and checking discretion. To confine discretion is to set the limits within which it should be exercised. To structure it is define the manner by which it is to be exercised notably in opening the decision-making process. To check discretion is to subject the decision to another authority.

The next three sections of this chapter are concerned with legislative, regulatory and administrative policy. The first section studies legislative expressions of policy and their impact on the exercise of discretion. Secondly, the question of the choice between regulation and administrative discretion is analysed as is the control over that choice and the nature of regulation over it is decided to adopt it. Finally, the impact of an administrative discretion is seen when attacked by the citizen on the grounds that it fetters discretion, constitutes bias or when relied upon by the citizen. It is seen that in most cases, the administrator may structure his discretionary power in a manner respected by the courts.
Les notions d'autorisation et de consentement dans le contrat médical
Authors: Knoppers Bartha Maria
Published: July 2012

While the terms « authorization » and « consent » are commonly used in juridical language, their definition end precise meaning are not acknowledged by the Quebec legislator. In fact the two terms are often used interchangeably. Both the legislative history of the first paragraph of article 20 of the Civil Code, an article which provides protective measures for the discerning minor entering into a medical contract, and the reforms suggested by the Civil Code Revision Office, demonstrate this confusion as to the proper juridical terms and as to the role of the parental and judicial sanction. The author maintains that the term « consent » is not applicable to the juridical role of the parent of judge.
L'informatique juridique au Québec : état de la question
Authors: Le May Denis
Published: July 2012

The purpose of the present paper is to evaluate current Quebec and some Canadian computerized legal information projects. The most important part of the paper studies projects undertaken in relation with either one of the main sources of the law in Quebec: first, statutes and regulations, second, case law and, finally, legal writings (books and periodicals).

A very brief survey enumerates the main problems created by the impact of the computer and the legal challenge that it represents (crime by computer, EFT, etc.). Future perspectives are outlined, taking into consideration, in part, what is done in certain other countries. The situation is described as it was during and up to the first six months of 1978.
Uniformité et efficacité des garanties en matière de libertés publiques
Authors: Chevrette François , Marx Herbert
Published: July 2012

An entrenched Bill of Rights, it is maintained, would be of benefit not only to individuals and groups but also to provincial governments generally, because the same standards would apply at the federal as well as the provincial level. Such a Bill should include certain effective protections lacking in the present Canadian Bill of Rights.

The protection of civil liberties by way of the division of powers has favoured the enhancement of federal power and has worked to the disadvantage of the provinces. What is proscribed at the provincial level is permitted at the federal level. In effect, although the provincial persecution and prosecution of Communists and Jehovah's Witnesses are well known, particularly because of their appearances before the courts, similar legislative and administrative policies on the part of the federal Government and Parliament have not surfaced as clearly in the Canadian constitutional process or history. This is also true as concerns the treatment of Asiatics.

The formulation of the safeguards to be included in a Bill of Rights raises the question as to their scope and application. The present Canadian Bill of Rights has given rise to the situation where the act of an official, such as a police officer, is not subject to the provisions of the Bill whereas the legislative enactment that authorizes the act is so subject. An efficient Bill of Rights would control such acts as well as laws.

Lastly, it is suggested that there is a general consensus in Canada as to the essential contents of a Bill of Rights. In dealing with emergency situations, the federal Government should have the burden of proving that an emergency exists and that restrictions imposed on specific civil liberties are required. At present the person contesting the invocation of the War Measures Act or other emergency legislation has the almost impossible task of proving that an emergency does not in fact exist.
Le droit de la preuve et la pétition en contestation d'élection
Authors: Morin Jacques Carl
Published: July 2012

Evidence in the law of controverted elections is the subject of the present article. The author begins with some general observations. Firstly, according to section 52 of the provincial Controverted Elections Act, the rules of evidence are those of the law of England in force on the first of July 1867, or in other words, the common law of Parliament. These rules of evidence can hardly be of any assistance to our courts because at that time, disputed elections were tried by the House of Commons or its committees and decided in a thoroughly unjudicial manner. Secondly, the author describes briefly the grounds that may be alleged in an election petition, namely the ineligibility of the elected candidate, corrupt practices by the candidate and irregularities affecting the legality of the election.

In the first part, the author examines the burden of proof. In all cases the onus for establishing the material fact of the corrupt practices or the noncompliance with the rules contained in the Election Act rests upon the petitioner. If the corrupt practices alleged in the petition are substantiated, the court must set aside the election unless the respondent establishes that the action is of no gravity and could not have affected the result of the election.

On the other hand, an election will not be declared void by reason of transgressions of the law if the court is satisfied that it was conducted in accordance with the existing election law, and that the mistake or noncompliance did not affect the outcome of the election.

The second part discusses the method of establishing facts and proof of their possible effect on the result of the election. As to presumption, for instance, the author examines the solution adopted by the courts when the number of unqualified voters exceeds the majority of the elected candidate and finds that invalidation of such an election may not be always justified.

Finally, in the third part, the author analyses various clauses regarding the secrecy of the ballot. In federal law and in the law of the English-speaking provinces the privilege respecting the secrecy of the vote is judicially recognized and cannot be waived. In Quebec, a voter cannot be compelled to reveal for whom he has voted but he can be asked the question. In the United States, the privilege of non-disclosure belongs only to qualified voters, and the illegal voter can be compelled to disclose for whom he has voted.

Rules of evidence regarding controverted elections are not well adapted to our times ; furthermore some sections of the ElectionAct and the Controverted Elections Act are not understood by our courts. The legislator should modify these statutes and make their language more precise in order to achieve completely and successfully the electoral reform now in progress.
L'érosion graduelle de la règle de l'étanchéité : une nouvelle menace à l'autonomie du Québec
Authors: Patenaude Pierre
Published: July 2012

The exclusivity rule, an essential ingredient of provincial autonomy, has been weakened by recent Supreme Court decisions such as Coughlin v. Ontario Highway Transport Board, R. v. Smith, Re Anti-Inflation Act, Re Farm Products Marketing Act, and Caloil v. A.G. of Canada.

Such an evolution can be dangerous for the people of Quebec because it might permit an invasion by the federal Parliament of Quebec's fields of exclusive jurisdiction. Until a new political agreement has been reached between Canada and Quebec, our Supreme Court should scrupulously adhere to the « watertight compartment » rule.
Origines historiques de l'injonction en droit québécois
Authors: Prujiner Alain
Published: July 2012

This survey of the historical origins of injunction in Quebec law aims at elucidating the source of some of the difficulties that have arisen lately in this much-debated field. In fact, the presence of injunction in Quebec procedural law results from specific circumstances.

The need for such a procedure came from the continuation of the old French law of civil procedure after the conquest of Canada by Britain. At that time, adequate proceedings for cases of urgency had not yet been devised and did not appear in the Ordonnance of 1667, which remained in force in Quebec up to 1867. From 1763, English influence became predominant, through legislation aimed at altering this corpus of French law to adapt it to the new judicature inspired by the English system. Nevertheless, in the absence of equity jurisdiction, no serious attempt to introduce injunction was made prior to the codification. Even the first Code of Civil Procedure of 1867 did not provide for injunctions, though their need became obvious.

In spite of urgings by commentators, and the existence of provisions in the Louisiana Code, the Legislature declined to adopt injunction. Courts then assumed authority to grant injunctions, either under their inherent powers or from a broad interpretation of mandamus. However, in Carter v. Breakey, Meredith C.J., for the Superior Court, after very detailed consideration of the issue, firmly opposed such endeavours as dangerous and unlawful, while urging the Legislature to make provision for the issuing of injunctions in appropriate cases. An Act was finally passed to this end in 1878.

This early provision cautiously restricted the use of injunctions to six types of cases. Subsequent developments, however, especially in the new codes of 1894 and 1966, considerably broadened its scope. Adapting an equitable remedy to the general scheme of Quebec procedural law was a difficult process, producing much uncertainty in the case-law. Further, in the absence of other guidance, courts tended to look to English and American sources, thus introducing into Quebec law some principles of equity.

The case of injunction in Quebec law therefore seems to illustrate the perils of receiving foreign legal institutions without adequate preparation.
La qualité d'agent de la Couronne ou de mandataire du gouvernement
Authors: Garant Patrice , Leclerc Gilles
Published: July 2012

In the absence of clear legislative intent as to the status of a corporation or public body as a Crown agent or Government mandatary, the courts apply one or both of two tests.

The function test, based on the concept of public purpose, requires that the court decides what kind of activities can be held as functions of Government. The test is therefore subjective and not particularly satisfactory, bearing in mind that it is not for the courts to impose upon the Legislature any political doctrine as to what are the proper functions of Government.

The control test requires that the whole statutory framework be examined in order to determine whether or not the corporation or public body has discretionary powers of its own, exerciseable with some degree of independence from the Cabinet. Corporate status, financial autonomy, independence of the managers and control of the corporation's or public body's activities are components of the test. Any one factor will not be determinative in itself. But when several point the same way, the courts will tend to follow their lead. Yet, this test has failed to produce completely consistent results.

The practical end of the exercise is to determine whether such public bodies or corporations are entitled, as Crown agents, to some or all of the privileges, immunities and prerogative powers enjoyed by the Crown. Some of these attributes are examined in this paper, such as the Crown's immunity from civil and criminal liability, statute law, taxation, and civil execution. Bankruptcy of public corporations is also considered.

The authors suggest that the courts should no longer be left to apply these tests, since that may often frustrate the intent of the Legislature not to confer the attributes of a Crown agent. The Interpretation Act could be amended to make it clear that such status can only be conferred by an express enactment. Further, the Legislature should, when conferring such status, specify which attributes are meant to vest in the Crown agent.
Vers une réforme des pouvoirs de la police en Angleterre
Authors: Leigh Leonard H.
Published: July 2012

The author discusses certain reforms to the law of police powers which are currently being demanded by the English police.

He notes that the English police have long acted under a regime of limited powers. These have proven to be irksome, but they have also conduced to a regime under which the police use the minimum powers possible and rely considerably on public support in the fight against crime. The police however urge that further powers are necessary, notably powers to stop and question persons in public places and to hold arrested persons for interrogation concerning the commission of offences before charging the person or bringing him before a magistrate. These wide powers resemble those of certain other systems, notably France, the practical workings of which are comparatively little known in Britain. They are of doubtful legality in view of the European Convention on Human Rights.

The author questions the necessity for and the desirability of such powers. He contends that they are apt to be abused, and that the French experience affords a guide to what might happen. He argues that formal powers are no substitute for public support. He fears that powers to stop and search will cause resentment, and that little countervailing practical benefit will result from them. As regards powers to detain persons before charging, he argues that such procedures will erode existing civil liberties safeguards and that certain proposed safeguards such as limiting the time available to the police for detention will prove ineffectual. There will be little time to inform defence lawyers of the nature of the case at an early stage and magistrates will probably support the police. If detention is to be allowed judicial permission should, as a general rule, be sought in advance from a High Court Judge. Here he advances a model based upon the experience of Cyprus.

The author also considers, briefly, the modalities of interrogation. He considers that the suspect must continue to have a right to silence. He must also have the right to the timely assistance of a defence lawyer, a right which presently is too often subverted by the practice. The author considers also that thought should be given to the question whether a suspect should have the right to the assistance of a lawyer during police interrogation.

The author concludes that in assessing the nature of and necessity for accretions and additions to police powers, the English should not lose sight of their historic attachment to civil liberties.
Le pouvoir discrétionnaire de l'administration exercé sous forme de normes administratives : les directives
Authors: Filion Michel
Published: July 2012

This paper attempts to describe and assess the legal position in respect of guidelines, directives, manuals and similar instruments issued by administrative authorities.

It first reviews the statutory or other legal basis for the power to issue such instruments. Particular attention is paid to the recognition by the courts of an implicit authority to formulate instructions to subordinate officials, as part of general managing and supervisory powers.

The author then outlines the specific features of directives, as compared with regulations. Both classes of instruments usually contain rules of fairly general application. Both can be seen as useful means of structuring the exercice of discretionary decision-making powers. Directives, guidelines, manuals and the like, however, set a particular emphasis on the provision of guidance or even imperative instructions for officials in the discharge of their duties, while regulations apply just as statutes do, to the general public as well as to civil servants. Great weight —perhaps an excessive weight — was attached to this distinction in the reasons of Pigeon J. in the first Martineau case, which is discussed at some length.

The question of unpublished directives becoming in fact a body of « secret law » is then surveyed. The limited scope of the federal Statutory Instruments Act in this respect is underlined, and the author argues for selective adoption of public rule-making procedures, requirements for publication in official gazettes, and referral to parliamentary committees.

Finally, the paper surveys the present state of the law as regards judicial review of directives. While review may bear on the vires for the making of the directive, much as in the case of regulations, it more often occurs when a discretionary decision is challenged before the courts on the grounds that the decision-maker fettered its own discretion by inflexibly applying self-made guidelines where individual determination was called for, or by submitting to directives from some other authority. In cases where judicial intervention is not possible, recourse may be had to ombudsmen ; the experience of the Public Protector in Quebec in connection with directives and guidelines is described.
Vision d'une révision du Code du travail
Authors: Verge Pierre
Published: July 2012

Would a codification of labour law — in the Continental meaning of the word, and not a mere consolidation of existing statutes — enhance the development of this field of law ? Would the resulting instrument be likely to generate more appropriate ways of dealing with labour situations, whether or not they pertain to a collective bargaining context ?

Adjective as well as substantive law would have to be involved in such an exercise. The latter aspect raises the fundamental issue of the proper relationship between the general law — civil law essentially — and labour law. What degree of autonomy is necessary to the integrity of the specialized law ? Conversely, to what extent is the general law to be relied upon to provide the necessary second-line set of legal provisions ? For instance, the two sets of legal rules entertain different views as to the termination of the employment relationship and as to the effect of a collective agreement. A well-integrated body of labour law should, in the author's opinion, govern comprehensively labour situation. The codifying process would also aim at eliminating internal discrepancies and a simpler, more accessible legal subsystem would emerge.

As to the adjective aspects of labour law, the identification of desirable forms of third-party intervention relating to both collective bargaining and labour standards legislation could lead to appropriate jurisdictional arrangements. In the case of industrial conflicts, of particular interest are the flexible powers of intervention with which the Canada and British Columbia labour boards are endowed. Consideration should also be paid to certain European models — namely the Conseil de prud'hommes — which allow both conciliation and adjudication to take place in the solving of normative law conflicts of application. A full-fledged Labour Code would indeed invite the setting up of a more authentic Labour Court.
Aspects juridiques de la crise américano-iranienne
Authors: Arbour J.-Maurice
Published: July 2012

From the first day the American Embassy was invaded and its diplomatic staff was seized as hostages by Iran, the United States of America has pursued every legal channel in order to resolve this crisis by peaceful means. Its efforts started with the immediate dispatch of Mr. Ramsey Clark on a mission to negotiate with the government of Iran and were continued in the United Nations through the Secretary General, the Security Council, the U.N. Commission of Inquiry and the World Court. Though one can say that all disputes may theoretically be capable of settlement according to rules of law, it should also be said, as a matter of fact, that international law often has only limited relevance to disputes arising among States. This is so because international legal rules operate within a system which has no general scheme of sanctions and no central organ for the enforcement of international legal rights. States have traditionally utilized coercitive measures short of war in attempting to prevail in disputes with other States. Does this authorize a State to intervene by the use of force for the protection of its nationals abroad ? Even though, from the standpoint of morality, the abortive U.S. rescue operation in Iran may have had sound justifications, any legal justifications that could be put up had to give way before the principle of territorial sovereignty.
La notion de protection du public dans la réforme du droit professionnel québécois : une analyse socio-politique
Authors: Belley Jean-Guy
Published: July 2012

This paper analyses the reform of the law governing professional occupations in Quebec from a socio-political standpoint. By focusing on the ideological level, the reform is seen as the result of the interaction of five competing ideologies : corporatism traditionnally dominant in the professional laws, technocratism that asserted itself in the context of the Revolution tranquille and gave its first impulse to the reform, neoclassic liberalism as expressed in the works of the Chicago School economists, communitarian ideology inspiring the practices of community-centered services among popular groups and consumerism advocating the interests of middle and upper class consumers.

In conclusion, it appears that the Code des professions enacted in 1973 proceeded from a compromise between corporatism and technocratism which turned largely to the advantage of the former. But the next step could be quite different. As a matter of fact, the recent positions expressed by the Office des professions du Québec reveal a clear tendency to rely upon consumerism and more fundamentally upon liberalism to carry on the reform. If so, the private law perspective based on a new contract of professional service would become more determinative than articulated public policies in the future regulation of the professional services industry. Bu obtaining a significant reduction of traditional corporatist powers — particularly the price-fixing one — while preventing a more pronounced public intervention, liberal forces would be the ultimate beneficiaries of the reform.
Le recours en cassation dans le contentieux municipal
Authors: Rousseau Gilles
Published: July 2012

This paper describes the specific nature of proceedings to quash decisions of local authorities under a number of provisions in Québec statutes. Similar provisions exist in the law of other Canadian provinces.

Paying relatively scant attention to the historical background of such procedures, the paper highlights the limitations and deficiencies inherent in them. Not all interested parties may bring them ; not all decisions of local authorities may be reviewed in this way ; not all remedies are open to be sought, especially those of a monetary nature; and fairly stringent time-limits apply to them. Taken together, these constraints disclose the true nature of such proceedings : they are an additional safeguard given to ratepayers as specially interested parties, to broaden the access to judicial review of actions by local authorities. These constraints also explain to a large extent why the existence of that additional avenue of recourse has not materially affected the use of general administrative-law remedies, whether direct and offensive such as actions to annul or declarations, or indirect and defensive such as evocation or exception on grounds of illegality.
La recevabilité de l'action d'intérêt public
Authors: Verge Pierre
Published: July 2012

Referring to doctrinal categories, the judicial control of public authorities' actions could be achieved not only through « private actions », directly aimed at protecting the plaintiffs own subjective rights, but also through so-called public interest actions. The latter represent attempts by « public-spirited » citizens or groups of persons to affirm the rule of law with respect to situations in which they cannot be deemed to be personally and directly aggrieved. The extent to which the courts are ready to consider such public interest actions depends on how they conceive the prerequisite of having a « sufficient interest » in order to bring an action at law. Is a « subjective » or, on the contrary, an « objective » attitude to be adopted in this regard ? The former attitude leads one to consider the impact of the act complained of upon the plaintiffs own interest ; the latter would reflect a primary concern for the social values sought to be affirmed by the intervention of the court.

The present text purports to establish the relative acceptance of these trends in defining the locus standi by the Quebec judiciary. Account is taken of the influence of the Thorson-McNeil approach by the Supreme Court of Canada in matters involving a constitutional feature, and also, from a practical point of view, of the use that could be made of Book Nine of the Code of Civil Procedure on Class Actions.
À propos du contrôle social de la politique énergétique
Authors: Constans Louis
Published: July 2012

This paper attempts to clarify the basic issues underlying the discussion of citizens' participation in public decision-making on energy policy and projects. It questions the assumption that such participation is possible, and recalls that energy policy is at present, at least in the French context, an area of conflict between government and various interest groups. It warns of possible misunderstandings due to the lack of an agreed definition of participation.

Three major points are made in this connection. The first is that the usual instruments of citizens' participation in decision-making (public inquiries, parliamentary debates, etc.) have, for a number of technical and institutional reasons, become largely irrelevant as regards energy matters — as indeed in several other areas of policy. The second is that decision-making on energy policy and projects really allows for very little freedom of choice on the part of decision-makers : such freedom rarely goes beyond the setting of time-frames for the achievement of goals imposed by circumstances. Finally, it is suggested that invocation of the ideals of democracy is unhelpful : what is realistically possible amounts only to a greater openness and objectivity in decision-making processes aimed at giving citizens, not an illusory power to decide themselves or to block decisions by policy-makers, but the capacity to forewarn the latter about public feelings on energy issues.
Le secret professionnel au Québec : une hydre à trente-neuf têtes rôde dans le droit de la preuve
Authors: Morissette Yves-Marie , Shuman Daniel W.
Published: July 2012

Under Quebec law, the members of thirty-nine regulated professions are bound by statute to professional secrecy. This obligation is reinforced by section 9 of the Quebec Charter of Human Rights and Freedoms. It protects patients and clients against the extrajudicial disclosure of confidential information but it also operates as an evidentiary privilege which the courts must enforce ex officio in all proceedings of a non-criminal nature. According to the authors, this statutory equation of professional confidentiality with privilege necessarily leads to the overgrowth of privilege or to the atrophy of confidentiality. The rule interferes excessively with the administration of civil justice and compels the courts to adopt result-oriented interpretations detrimental to the coherence of the law.

The article first describes the relationship between the applicable legislation and the several codes of professional ethics defining the scope of professional secret. A second part explores the possible justifications for legal duties of confidentiality and evidentiary privileges ; most of these rationales are compatibles with a distinction between in-court and out-of-court requirements of secrecy. The authors then review in a third part various cases in which Quebec courts have dealt with objections based on professional secret. Three conflicting interpretations were adopted in these cases. All three interpretations restrict the scope of professional privilege, sometimes at the expense of legitimate claims for out-of-court confidentiality. It therefore appears desirable to re-establish in the legislation a distinction between the judicial and extrajudicial aspects of professional secret. The conclusion contains suggestions for a reform of the law of professional secret in Quebec.
Le contrôle juridique des précipitations acides
Authors: Grandbois Maryse
Published: July 2012

Acid rain — which is a result of chemical alteration of sulfur and nitrogen oxydes when combined in the atmosphere with moisture — each year causes damages beyond repair to the environment. Because of the long-range transportation of pollutants and the local sensitivity of soils, Eastern Canada is particularly affected. The Province of Quebec is one prime target and it receives downwind air pollutants from the United States and Ontario.

This article deals with the law as it relates to acid rain and studies recent developments at local, national and international levels. It analyses laws, regulations and by-laws under which governments regulate and control the precursor pollutants of acid rain.

Until now government has not satisfactorily addressed the problem of acid rain so as to propose legal solutions. This is partly due to long-range transportation of pollutants which raises the question to an international level, making the issue of a negotiation on the subject between Canada and United States crucial.
Les garanties contractuelles dans les transactions internationales comportant la fourniture de biens ou de services
Authors: Hannani Mahomed
Published: July 2012

It is common knowledge that liberalizing international exchanges does not eliminate the risks involved in international trade. For indeed, parties to an international commercial transaction are often far distant from one another and naturally know little about their respective financial or industrial situations as well as the laws and customs in force in these countries. It is these circumstances that brought about various advance payment schemes such as the letters of credit.

Yet world expansion of commerce that is largely due to hydro-electric projects and other projects linked together on a worldwide basis has given rise to contract guarantees. In this article the author deals with guarantees which mainly concern tender bond, performance bond, instalment reimbursement bond.

By means of these guarantees, an importer may demand that a third party whose solvency is recognized will guarantee the economic bond of the exporter. The demand for supplying a contract guarantee may also be required by the international body that finances an economic project or by way of legislation in some countries. After having described the machinery of these guarantees, the author examines the legal nature and validity of them. He then analyses the legal relationship of parties to this institution. He concludes by considering different cases that may prevent the realisation of the guarantee.
L'intérêt à poursuivre du citoyen québécois en droit de l'environnement
Authors: Trudeau Hélène
Published: July 2012

Problems related to pollution and other ecological imbalances caused by man frequently exercise indirect influence on entire populations. Traditionally, any Quebec citizen who was concerned about an environmental problem, had no way for presenting his views before a court of law since his interest in the matter was deemed to be insufficient. Presently rules governing interest to act have been made more flexible such that a citizen may in some cases take action in the public interest.

This text determines what interest a Quebec citizen may invoke in environmental law through the analysis of rules of interest applicable to three procedures that may be exercised in cases of environmental damage. These are : judicial review over administrative decisions, the injunction provided within the Environment Quality Act and measures based on the Canada and Quebec charters of rights and freedoms.
Legal Issues Arising from Protectionist Government Procurement Policies in Canada and the United States
Authors: Lemieux Denis
Published: July 2012

Les marchés publics confèrent aux différents paliers gouvernementaux une force de frappe qu'ils sont susceptibles d'utiliser pour atteindre des objectifs économiques et sociaux en plus d'obtenir des biens et services de qualité à un prix raisonnable. Ceci donne lieu à l'élaboration et à la mise en oeuvre de politiques d'achats. Ces politiques prennent rarement la forme de lois et de règlements mais sont adoptées le plus souvent par voie de directives, d'énoncés de politique et de pratiques administratives.

Toutefois, ceci ne signifie pas qu'il n'existe pas de cadre juridique des politiques d'achats. Les dispositions de la Loi constitutionnelle de 1867 relatives au commerce interprovincial et international, de même que les droits à l'égalité et à la mobilité enchâssés dans la Loi constitutionnelle de 1982, servent de cadre juridique minimal aux politiques d'achats.

À ces normes s'ajoutent les obligations internationales du Canada à l'intérieur du cadre de l'Accord général du G A TT et, pour le Gouvernement fédéral, le Code des marchés publics adopté lors du Tokyo Round.

La mise en oeuvre de l'Accord de libre-échange canado-américain viendra apporter une nouvelle limite à l'autonomie des initiateurs de politiques d'achats publics.
La protection de l'environnement au Canada et aux États-Unis
Authors: Piette Jean
Published: July 2012

This paper explains some of the main differences between the development and the structure of environmental legislation, regulations and programs in Canada and the United States. In Canada, the division of powers under the Federal Constitution between Parliament and Provincial Legislatures explains the structure and scope of Canadian environmental law. Federal laws and regulations have been mostly sectoral while Provincial laws have been broader and have been successful in integrating environmental planning instruments.

U.S. environmental laws, regulations and programs are developed under the leadership of Congress. The Environmental Protection Agency and State Governments are called upon to play an important role in the implementation of Federal environmental statutes. Contrary to the Canadian situation, citizen suits and the Judiciary are instrumental in the development of U.S. environmental law.
Liberté de grève et liberté de commerce. Le régime de la grève légale au Québec au regard de celui découlant de la législation américaine du travail
Authors: Verge Pierre
Published: July 2012

Although built around the same basic principles of exclusive representation of unit employees in favour of the majority union, the legislative systems regulating the collective bargaining process in Quebec and within the American federal jurisdiction present significant differences with respect to both the scope of permissible strike action and the course of a legal strike.

A survey of the relevant discrepancies reveals that the legislative framework is more stringent in Quebec. The relative flexibility of the American system tends to work against the employer when one looks at the greater availability of the right to strike that it affords. This is not only the case with respect to so-called economic strikes over collective bargaining issues, but also with respect to different kinds of protest strikes. On the other hand, the American employeur seems to enjoy a relatively freer hand in taking different measures to counteract a strike, for instance, through the use of permanent replacements. A certain internal equilibrium may then be prevalent within each of the compared legal systems.

The competitive situation of American and Canadian employers included within the same free trade zone is also dependent upon wider juridical and non juridical factors. As to the more pronounced degree of state intervention with respect to collective bargaining in Canada, its historical roots would tend to preserve it.
Le consentement en matière d'agression sexuelle: peut-on sortir du labyrinthe sans le fil d'Ariane?
Authors: Manganas Antoine
Published: July 2012

The author attempts to demonstrate the difficulty of applying the new test provided by s. 244(4) of the Criminal Code and concerning the sincerity of the accused's belief in a case of sexual aggression.

Even if the judges of the Supreme Court of Canada, in two recent decisions (Bulmer and Robertson), reaffirmed the principle of Pappajohn that an honest and sincere mistake of fact to the existence of the victim's consent can constitute a defence to a criminal charge, we must give an explanation why the legislator changed the law by introducing this partly subjective and partly objective test.

The author think that this new test creates much confusion ; it will be very difficult for judges to explain it adequately to the jury and for jury members to understand its real meaning.

In conclusion, the author believes that once again the legislator created an ambiguous situation because he did not dare to impose a clearly objective test.
Réflexions sur le processus de recodification du Code civil
Authors: Baudouin Jean-Louis
Published: July 2012

Cet article fait d'abord le point sur la situation de la réforme du Code civil au Québec. Il tente de montrer les phénomènes sociologiques sous-jacents qui sont à l'origine des difficultés et des retards qu'a connus le Québec dans cette entreprise depuis le dépôt du Projet de l'Office de révision du Code civil en 1978. Il examine enfin les conditions nécessaires au succès de l'opération de recodification qui en est à sa dernière étape.
L'exemple de l'Ontario
Authors: Lacourcière Maurice N.
Published: July 2012

Dans son processus visant à évaluer la pertinence d'une éventuelle Cour suprême du Québec, le législateur québécois peut s'inspirer de différents modèles et de diverses expériences, dans l'ensemble du monde occidental. Cependant, l'exemple le plus près de notre réalité s'avère sans aucun doute celui de l'Ontario, province aux prises avec le même type de problèmes que le Québec.
Les règles procédurales entourant la recevabilité des déclarations extrajudiciaires
Authors: Arguin Pierre
Published: July 2012

Une déclaration extrajudiciaire, étant un témoignage indirect, constitue la meilleure preuve susceptible de condamner un suspect. Les forces policières ont donc tendance à privilégier ce mode de recherche de la vérité au point de heurter certains des droits les plus fondamentaux des citoyens.

Les tribunaux, depuis plus d'un siècle, ont donc voulu pallier de telles situations en adoptant des règles de preuve et de procédure entourant la recevabilité des déclarations extrajudiciaires. Récemment, le Législateur a élevé au rang de garantie constitutionnelle certains de ces droits fondamentaux afin de protéger davantage les citoyens contre de telles violations.

Le texte qui suit vise à faire le point sur les règles procédurales entourant la recevabilité des déclarations extrajudiciaires, suite à la fusion des règles de common law et de celles de la Charte canadienne des droits et libertés.
Un aperçu de certaines dispositions de la taxe sur les produits et services en matière immobilière
Authors: Lareau André
Published: July 2012

La nouvelle taxe sur les produits et services (T.P.S.) est officiellement entrée en vigueur le 1er janvier 1991. Cette taxe va bien au-delà du simple remplacement de l'ancienne taxe fédérale de vente ; en effet, la T.P.S. vise non seulement les transactions impliquant le manufacturier, mais elle s'applique aussi à toutes les étapes de circulation d'une fourniture, et ce, jusqu'au consommateur final. De plus, l'assiette couverte par cette taxe est beaucoup plus étendue puisqu'elle vise entre autres les services et les transactions immobilières.

L'assujettissement à la nouvelle taxe est basé sur des concepts tantôt inusités, telle la notion de « fourniture », tantôt connus, telle la notion « d'activité commerciale ». Dorénavant, toutes les transactions effectuées dans le cadre d'une activité commerciale seront soumises à la T.P.S., sauf si elles font l'objet d'une exclusion. Parmi ces exclusions, nous retrouvons les fournitures détaxées et les fournitures exonérées.

Dans le cadre du présent article, nous analysons certaines dispositions de la Loi sur l'accise qui se rapportent à la taxe sur les produits et services en matière immobilière. Nous y verrons les conséquences inhérentes à la construction, à la rénovation et au transfert d'immeubles résidentiels et commerciaux, ainsi qu'au changement d'usage se rapportant à ces immeubles. Nous en ferons une analyse descriptive afin d'aider le lecteur à mieux saisir la portée de cette nouvelle législation tout en abordant parfois certaines notions d'un angle plus critique.