bluuebunny/crossref_metadata_2025_split huggingface dataset:
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.