bluuebunny/crossref_metadata_2025_split huggingface dataset:
Consultations populaires québécoises et référendums fédéraux
Authors: Brun Henri , Tremblay Guy 
Published: July 2012

This article expresses criticism about, and makes comparisons between, Quebec's new legislation on referenda and the federal bill (not yet adopted) on the same subject.
The authors' claim is that the most commonly heard comments about these legislative pieces seem to miss the most important target. The limitations and controls of referendum expenses, prescribed by the Quebec Act and loudly denounced by the opposition, on the whole seem preferable to the lightly hidden laxity of the federal bill. On the other hand, in both cases the general inadequacy of the means of control makes the referendum process a very powerful weapon in the hands of governments. These new pieces of legislation give much to the governments, little to the people.
Les premières institutions municipales au Québec ou « machines à taxer »
Authors: L’Heureux Jacques 
Published: July 2012

The first general municipal institutions in Quebec were adopted by the Special Council in 1840 when Governor Sydenham found that the Act of Union did not make provision for them.
These institutions included local corporations — parishes and townships — and regional corporations — the districts. Parishes and townships had very few powers. Districts had limited powers on local matters. All municipal corporations had little autonomy and were under the strict control of the Governor. Nevertheless, their creation was bound to lead to more important and more autonomous municipal institutions.
French Canadians were opposed to these institutions, partly because they seemed to belong to the set of post-Rebellion measures such as the union of the two Canadas and the setting up of the Special Council, and partly because the new municipal corporations had the power to levy taxes. Their opposition succeeded in paralysing these institutions, which were replaced by new ones in 1845.
Les ordonnances de dédommagement et de restitution en droit pénal canadien
Authors: Gagné Jacques 
Published: July 2012

This paper examines the constitutional law issue raised before the Supreme Court of Canada in the case of R. v. Anne Zelensky and the T. Eaton Co. Ltd. and the Attorney General of Canada, decided on May 1, 1978. Having discussed the judgment of the Manitoba Court of Appeal, the author proceeds to support the majority decision of the Supreme Court, as expressed by the Chief Justice, viz. that the provision for compensation orders in subsection 653(1) of the Criminal Code is intra vires the federal Parliament as part of the sentencing process.
The paper then proceeds to draw a comparison between compensation orders under subsection 653(1) and probation orders under paragraph 663(2) e) of the same Code. Differences in the nature of these two classes of orders are brought out.
In view of the limited scope for application of subsection 653(1) the author suggests a number of legislative changes. These changes would remove all the constitutional difficulties inherent in the present drafting of the subsection. They would also fashion a more efficient instrument for compensating victims of crime, while preserving the original purpose of rehabilitating the offender.
Vers la systématisation des lois québécoises
Authors: Issalys Pierre 
Published: July 2012

The object of this paper is to suggest means whereby the body of statute law could be rearranged into a systematic whole.
The concept of a system of statutes is first defined and contrasted with the concept of codification. Systematization is presented as involving two stages. First, a classification grid is obtained by grouping statutes under a number of broad headings according to their subject-matter. Second, within each group the various statutory provisions are ranked and possibly rearranged according to the scope of their application within the field covered by the group of statutes as a whole. While statutes retain individual existence, logical links between them are made more explicit.
The concept is then applied experimentally to a group of 23 Québec statutes dealing with the provincial Cabinet and the organization of government departments. Proposals are thus made for a new Government Organization Act and new statutes setting up each of the departments.
The paper then considers extending the process of systematization to a larger group including all statutes setting up agencies of the Québec government (administrative tribunals, regulatory boards, Crown corporations, etc.). This, it is suggested, could lead to the adoption by stages of a Code of Government Organization.
Finally, the paper examines the requirements of the systematization of statutes as to legislative draftsmanship, legislative policy, and the legislative process. It argues for the need for a new agency with responsibility to advise the government on draft legislation and to carry out the systematization of groups of statutes on request from the National Assembly.
Langage et système des lois suisses
Authors: Dessemontet François 
Published: July 2012

This paper addresses the issue of a systematic approach to the drafting of legislation, in the light of Swiss experience.
Starting from a brief survey of inflationary tends in the production of Legislative material, the author brings out the mutually reinforcing interplay between these tends and a widening lack of consensus about the contents and enforceability of legislation. While such factors hardly favour systematic lawmaking, a number of institutional features in the Swiss federal legislative process help maintain the quality of legislative instruments — namely the very length of the process, the bicameralism, the plurality of official languages, and the subjection of laws to the referendum procedure.
Further, the practice of Swiss Legislators shows concern for the preservation of systematic unity. Thus, the federal department of Justice has devised a set of Principles of legislative drafting, supplemented by a checklist that can be applied to any draft legislative instrument. In a number fields where lawmaking authority vests in the cantons rather than in the Confederation, federal authorities have drafted model laws in the hope of promoting uniformity between cantonal legislation. In.other fields, where law-making authority has been given to the Confederation, federal legislation has sometimes been limited to a basic law, containing broad provisious only leaving details to be filled in by each of the cantons. The technique of codification, by contrast, has not been resorted to since the major achievements in civil and criminal law during the first half of this century.
Finally, Swiss legislative draftsmen, both federal and cantonal, have been concerned lately with the improvement of drafting and style, as is shown by the recent spread of guidelines, instructions and even laws on the subject.
La stéréophonie législative, facteur de haute infidélité ?
Authors: Sparer Michel 
Published: July 2012

The object of this paper is to underline the inherent difficulty of expressing a single legislative intent in two languages.
A number of basic issues concerning the translation of legal documents generally, and of statutes in particular, are formulated. These issues have been brought into sharp focus by divergent judicial interpretations of instruments drafted in French and referring to a civilian legal and cultural background.
The practice of bilingual legislation is then considered. Reference is made to recent efforts at improving the French version of federal statutes. The need for, or usefulness of bilingual legislation is critically examined. Anglophone reactions to French unilingual legislation in Québec are explained in terms of adherence to the traditional English style of legislative drafting. However, it is pointed out that common lawyers may be looking with increasing interest at the attributes of clarity, simplicity and logic associated with the civilian style of drafting.
L'informatique juridique : en progression vers un processus d'intelligence artificielle
Authors: Goulet Jean 
Published: July 2012

This paper deals primarily with computer-assisted legal research. It attempts to sketch the current state of the art, mainly in the United States and Canada, with special reference to systems oriented towards the processing of legislative data. The author suggests a checklist of the main requirements the systems of the 80's will have to answer to, in order to fulfill the growing needs of the new computer-minded generations of law graduates.
Along these lines, this paper deals also with the second generation systems dedicated to automated legal research ; these could be expected to show some form, albeit elementary, of humanlike intelligence. Four prototypes of such systems are considered; they are the American Bar Foundation's and Jeffrey Meldman's systems, as well as the well-known JUDITH and TAXMAN systems.
The paper concludes on a glimpse of the Third Wave of computerized legal research, in the belief that the legal profession will meet the challenge of the computer age, will learn to live and work with this new technology, and will master the artificial but sometimes acute intelligence of our new friend, the Robot.
L'inconstitutionnalité des pouvoirs du protonotaire spécial
Authors: Bouchard Serge , Lavigne Marie-Michèle , Renauld Pascal 
Published: July 2012

The office of special prothonotary was created in 1975 by an amendment to the Code of Civil Procedure. The main purpose of the change was to ease the administration of justice before the courts. For this reason, the special prothonotary received many assignments which were reserved until then to a judge sitting in chambers and even to the court itself.
Such transfer of duties and powers may conflict with section 96 of the BNA Act, which acts as a bar to prevent the withdrawal of judicial functions from a superior, county or district court.
This paper deals with the interferences between various sections of the Code of Civil Procedure and section 96 of the BNA Act.
The first part of the paper deals with the approach adopted by the courts. The true test, according to the case-law, is to determine the nature of the function involved. Since only judicial functions are protected by section 96, it is intravires the Legislature of Quebec to confer on a board or tribunal administrative or ministerial powers.
If the transfer involves judicial functions, the courts will use the test adopted by the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works and by Sir Lyman Duff in In re Adoption Act, and examine whether the transferee is analogous to a superior, district or county court.
The courts will also have to apply the « 1867 statute books test » : was the particular function conferred to the prothonotary before 1867 ?
If the results of each of the two tests are affirmative, then the function is one protected by section 96 of the BNA Act and its transfer is ultra vires the provincial Legislature.
If the results are negative, the courts will examine if the provisions involved have the effect of vesting in the special prothonotary the powers of a superior court judge. If the courts conclude that it is so, then, the assignment is ultra vires the powers of the provincial Legislature.
The second part deals with each of the assignments transferred to the special prothonotary. These are threefold in nature:
1. Actions by default to appear or by default to plead under article 195 C.C.P. ;
2. Jurisdiction under article 44.1(1) C.C.P. ;
3. Interlocutory or incidental proceedings, contested or not, but, if so, with the consent of the parties.
The paper concludes that most of the provisions dealing with the duties and powers of the special prothonotary are unconstitutional
Le Québec à l'heure de la réforme du droit des sociétés (compagnies) ou le législateur schizophrène
Authors: Giguère Marc 
Published: July 2012

How can two parts (1 and 1A) of a same statute (Quebec Compagnies Act) be of a such a different spirit and at the same time complementary (part 1A needs part I to be complete and effective) and serve for years and years without the risk of severe distorsions and misleading solutions ?
Homosexualité et droits à l'égalité dans les Chartes canadienne et québécoise
Authors: Duplé Nicole 
Published: July 2012

To what extent may a person be discriminated against within the purview of a federal or Quebec law because of his or her homosexuality ? The author attempts to answer this question in the light of the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. Those two documents make up two distinct sources against discrimination. The question as to whether section 15 of the Canadian Charter prohibits distinctions based upon homosexuality is examined in the first part of the article. The second part focuses on the nature and scope of the right of the homosexual person to complete equality under the Quebec Charter.
Le droit à la vie privée des personnes homosexuelles
Authors: Goreham Richard A. 
Published: July 2012

This paper examines the idea of personal privacy and how the law has responded to expectations that it be adequately protected. The legal protection of personal privacy is evaluated in light of the concerns of homosexual persons that information about their sexual orientation remain confidential. Although individual privacy is a notion that can be used to argue for a sphere of individual freedom, in the sense that adult individuals should be free of government restriction on how they express themselves sexually in private, this paper focuses on privacy insofar as it relates to the undesired disclosure of information about a person's private life. This is privacy as secrecy, a concept which is concerned with the degree to which we are prepared to allow people to live their lives free from the intrusive prying of others.
Whether the idea of breach of privacy as giving rise to civil responsibility has evolved under tort law is reviewed in the common law of both Canada and the United States. The inadequacy of the common law in protecting a general right to privacy has led to the adoption of a number of provincial statutes which create an invasion of privacy tort, and the importance of these in potentially protecting the privacy of homosexual persons is examined. The recognition of a general right to privacy under the Quebec Civil Code and its reinforcement by provisions in the Quebec Charter of Rights and Freedoms completes the analysis of civil remedies for breach of privacy in Canada. For comparative purposes, the development of the « private facts tort » in the American legal system is explored and commented.
Informational privacy as it relates to the collection, storage and use of personal information by governments constitutes the focus of part 3 of this paper. It assesses the dangers inherent in the use and storage of personal information by governments in both Canada and the U.S.A. The recognition of the potential for abuse has resulted in the adoption of Privacy Acts in both countries at the federal level and, with respect to Canada, in the province of Quebec. Such legislation seeks to answer the twin preoccupations of when government institutions are justified in collecting and using personal information and when they are justified in disclosing it. These questions are of considerable importance to homosexual persons and this is emphasized in the analysis.
Views on the relationship between privacy and social tolerance are offered in the conclusion to the paper.
Le défi
Authors: Trudeau Pierre Elliot 
Published: July 2012

This speech was given by the Prime Minister at the closing banquet of the Conference on the Reform of Federal Institutions in Quebec on March 30, 1984.
He suggested that Reform is desirable because Canadian Federalism is capable of evolution and renewal. Canada needs institutions in which a national consensus on its fundamental options can be developed frankly and openly. The federal government's representativeness and its authority to speak and act in the name of all regions and of all Canadians must be strengthened.
The proposed reform of the Upper House conducted by the Special joint Committee on Senate Reform indicates that provinces and regions should be represented adequately, not the provincial governments. These governments, because regional interests were not perceived to be adequately represented within the federal institutions, have had a tendency to present themselves as the only legitimate representatives of the regions.
The idea of a second chamber elected directly by the people would enhance the independence and authority of senators in their role as regional representative.
Mr. Trudeau indicates that the institutionalization of federal-provincial conferences ought to be looked at with the aim of harmonizing the policies of the two orders of government. This should establish coordination and effective management in areas of shared jurisdiction.
Entre le changement et l'indiscipline
Authors: Roy Jean-Louis 
Published: July 2012

In this article the author presents a view on federal-provincial relations which he sees as characterized by constant change and a lack of discipline both of which have recently resulted in a degradation of the system itself.
Hence, there is a need to return to a reasonable level of predictability in federal-provincial relations which may be characterized by moderation. Roy points out that English Canada and Quebec are not mutually exclusive societies and there exists a variety of mechanisms which could contribute to common understanding.
As publisher of the daily « Le Devoir », Roy points out that his paper was staunchly opposed to the Constitutional Law of 1982. Yet, due to the majority of Quebecers who rejected the sovereignty option as well as the recent ruling on a veto prerogative for Quebec, a new outlook must be adopted.
Quebec must ask itself three questions. First, has it given sufficient consideration to the existence of its various partners ? Secondly, could Quebec be moving too fast towards its goals ? Thirdly, has Quebec capitalized on all the positive elements in its relationships ?
The author concludes by affirming that regardless of other elements, Quebec and Canada have the obligation to negotiate with their neighbors
La Constitution canadienne et la protection des minorités ethniques
Authors: Woehrling José 
Published: July 2012

Canada's international obligations for protecting minorities imply non discrimination and the establishment of means for allowing minorities to preserve and perpetuate their national characteristics. The author deals with the scope and role of the Canadian Charter in recognizing the value of « multiculturalism. » He presents the various obstacles that lay in the way of exercising the right to multiculturalism such as the financial cost for achieving it and the principle of « territoriality. »
Jurilinguistique et lexicographie. Une première canadienne : le Dictionnaire de droit privé
Authors: Gémar Jean-Claude 
Published: July 2012

For historic reasons — legal traditions, language issues and lawyers' inhibitions — there has never been an authoritative, monolingual French legal dictionary in Canada. Since the publication in 1985 of the first edition of the Dictionnaire de droit privé by the Quebec Research Centre on Private and Comparative Law, this gap is now being filled. The interdisciplinary team engaged in this far-reaching lexicographic project is comprised of both legal and linguistic experts. Problems arising from the interaction of the French and English legal traditions in Canada are discussed. This paper outlines the principles and methods involved, derived primarily from a Canadian-based jurilinguistics, and the uses to which they are put.
Duquet Revisited
Authors: Grey Julius H. 
Published: July 2012

En 1977, l'arrêt Duquet c. Ville de Ste-Agathe-des-Monts a réduit radicalement le formalisme qui entourait jusque-là au Québec l'octroi du jugement déclaratoire sur requête. Suite à Duquet, d'autres arrêts de la Cour suprême ont contribué à accentuer ce mouvement et, certainement en droit public, le recours au jugement déclaratoire est devenu une simple option, dont l'emploi ne devrait pas pouvoir influencer le sort d'un litige.
Cette évolution doit être placée dans le contexte d'un abandon presque total des anciens recours qui compliquaient et rendaient pratiquement aléatoire notre droit administratif. Cependant, on doit remarquer une réticence, de la part de plusieurs juges, à accepter sans réserve les conséquences de Duquet. Le pouvoir d'annuler des lois ou des règlements fait parfois l'objet de restrictions. Les mots "intérêts immédiats", de l'article 453 du Code, reçoivent parfois une interprétation restrictive, et même l'absence d'une "difficulté réelle", dans un sens étroit et technique, peut présenter un danger. Ces tendances sont loin d'être universelles, mais elles peuvent avoir pour résultat d'engendrer chez les avocats une méfiance qui reléguerait l'article 453 à la dernière place parmi tous les recours, alors que le juge Pigeon, dans Duquet, avait souhaité qu'il soit "largement applicable".
Le but de cette note est de démontrer qu'il n'existe aucune raison, qu'elle soit purement juridique ou pratique, défavoriser de nouvelles restrictions à l'octroi du jugement déclaratoire : Duquet devrait être accepté dans son sens le plus large.
The Need for a Common Perception of Human Rights in a World of Diversity: A Canadian Perspective
Authors: Ratushny Ed 
Published: July 2012

La force juridique et morale des instruments relatifs aux droits de l'homme dépend en grande partie d'un consensus quant à la signification de ces droits. Sur le plan international, ce consensus est des plus difficiles à réaliser en raison des différences idéologiques, économiques, culturelles et religieuses. Peut-on dans un tel contexte concevoir que les droits de l'homme véhiculent des valeurs universelles ?
Au niveau du droit interne, la classification des droits de l'homme et le degré de protection accordée à chaque catégorie de droits, individuels, collectifs, économiques et sociaux, traduit la nécessité de tenir compte de réalités concrètes spécifiques.
L'auteur examine l'approche canadienne des droits de l'homme et les grandes étapes ayant marqué la reconnaissance de ces droits avant qu'ils ne soient consacrés constitutionnellement. Enfin, l'auteur situe les grandes catégories de droits humains dans le contexte canadien et porte un jugement de valeur quant au degré de protection qui leur est respectivement accordée.
Les rôles respectifs de l'État et du citoyen
Authors: Oreja Marcelio 
Published: July 2012

At first glance, national sovereignty and the respect of Human Rights seem, since the first is unachievable without detriment to the second, irréconciliable.
When a country binds itself through an international agreement to respect Human Rights it may still violate these accords with impunity by hiding behind the sacred principle of non-interference, a precept often invoked by other countries to justify their passivity.
For the author, this pessimistic view does not, however, take into consideration the fact that evolution in the safeguards to human rights has only come about with the consent of sovereign nations.
There are few countries in the world today who flagrantly disregard Human Rights without feeling the need to justify themselves. It may now be said that there is a beginning of virtue in the reality of international relations.
There may certainly exist conflict between the exercice of sovereignty and the respect of Human Rights, but in democratic countries, this does not constitute an absolute paradox. It is the responsibility of the people governed to make good their rights by exerting the necessary pressure on their government when it does not have a tendency to liberalize its policies. This is because, in the end, Human Rights do not belong to the State but to the people.