bluuebunny/crossref_metadata_2025_split huggingface dataset:
Une contribution positive à la protection des droits individuels : l'institution de l'ombudsman au Canada
Authors: Tremblay André 
Published: July 2012

Canada and Quebec have been actively involved in the trend which has resulted in the existence, within the political system, of a new institution : the Ombudsman.
While the Government of Canada hesitated for some time before establishing the institution for federal purposes, the Quebec Public Protector has existed for somewhat more than 10 years, and the new institution has been recognized a proper remedy to the weaknesses of the judicial system.
This article enumerates some of the weaknesses of judicial review and attempts to demonstrate that citizens are better protected by the Ombudsman because of the simplicity of the available remedies and the efficiency of settlement procedures.
The new institution could not be introduced next to the judicial system without creating some problems. This article considers the respective domains which fall within the jurisdiction of the courts and of Ombudsmen, and the conflicts which could arise.
Finally, the operation of the courts and of the Ombudsman will be considered, as well as the advantages and deficiencies of both institutions.
Les intentions des Pères de la Confédération
Authors: Rémillard Gil 
Published: July 2012

This paper attempts to elucidate the motives and purposes that gave rise to the constitutional compromise embodied in the BNA Act, 1867. In order to assess the ideological, political, economic and military considerations that shaped the outcome of the crucial Quebec conference of 1864, the author surveys earlier schemes for a federal union of British North America, examines the then current concept of federalism in the light of the American and Swiss precedents, discusses the political, economic and strategic factors supporting the idea of a Canadian federation, and finally gives an account of the manner in which the Quebec and London conferences achieved a practical balance between the diverging views of their participants.
This recreation of historical conditions surrounding the birth of Confederation sets the present constitution of Canada in the light of an essentially pragmatic answer to the difficulties and needs of its times. While this compromise called for a strong central authority, it was also based on a strongly-felt need for provincial autonomy.
Les droits du mineur en vertu de la Partie VI de la Loi régissant les sociétés commerciales canadiennes
Authors: Demers Robert 
Published: July 2012

Transfers of shares in the private law of the Province of Quebec raise numerous questions. The rights of the bona fide transferee for value are not clearly settled by the Civil Code and the provincial Companies Act is silent on the issue.
In the first part of this article, the author deals with the state of the civil law on the question, illustrating the discussion with a study of the rights of a minor to proceed against bona fide transferees generally and more specifically, under articles 297 and 1487 C.C. In the second part of the article, the question is viewed from the point of view of the federal legislation. Part VI of the Canada Business Corporations Act is studied in detail in so far as the rights of the minor are modified by the statute. This useful exercise indicates clearly the preference given by the federal Act to bona fide purchasers of securities and the rather precarious position of the true owner in questions of conflicting claims.
Viewed from a larger perspective, this study reveals an important trend in recent legislative enactments : where traditional rules tend to protect property rights (nemo dat...), contemporary legislations seem to favour unduly the security of commercial transactions.
Les lignes de force de la Loi 89 instituant un nouveau Code civil et portant réforme du droit de la famille
Authors: Longtin Marie-José 
Published: July 2012

The family law reform is based upon several principles among which the legislation seeks to create a certain balance. The new legislation approaches the question of that balance under four themes :
1. The equality between man and woman - an equality sometimes intruded upon in order to protect one of the spouses or to strengthen his or her self-determination ;
2. the spouses' freedom to arrange their family relations as they see fit, but a freedom limited by several mandatory rules in order to ensure a greater measure of equality for each ;
3. the equality between children regardless of the circumstances of their birth or their form of filiation - an equality strengthened by rules devised to protect their interests ;
4. the increased intervention of the judiciary authaurised mostly for promotive self-reconciliation by the parties.
The following comments try to illustrate how these four principles are embodied in book two of the Civil Code of Quebec, book which must be construed according to the Legislator's expressed view for overriding equality, simplicity and flexibility.
Étude de certains aspects du droit nucléaire canadien
Authors: Jobin Jean-François 
Published: July 2012

The law respecting nuclear energy has to date been the subject of relatively few studies in Canada. Considering, however, the growing importance of nuclear energy as a new or additional form of energy, besides oil, gas, coal and hydroelectric power, and on the other hand, the increase in public concern about the possible consequences of the nuclear option, especially on health and the environment, this area of law is undoubtedly bound to experience a major development.
The purpose of the present article is to study existing federal legislation on the matter, as well as its effects on certain provincial jurisdictions, more particularly in Quebec.
The author, after recalling certain technical data concerning components and functions of nuclear reactors, proceeds to analyse the main intervenors in the nuclear field, as contemplated by the Atomic Energy Control Act. One cannot help but acknowledge that the Atomic Energy Control Board, by means of its important supervisory and regulatory powers, intervenes at all stages of the nuclear cycle.
The author also studies the constitutional basis for the federal intervention in this field of activity. After eliminating the national defence power, the national dimension theory and the emergency power as possible alternatives, he concludes that while Parliament may perhaps invoke its residuary power, its declaratory power appears as the surest constitutional basis for asserting its legislative authority over that particular matter.
In the last part of the article, the author attempts to emphasize the effects of federal intervention on provincial property rights over uranium mines, and on provincial jurisdictions over labour relations, health and safety at the workplace and environmental protection. This analysis points out that provincial legislative authority over the management and development of their natural resources is not only inapplicable in respect of uranium, but that their property rights over uranium mines are rather precarious. It seems clear, further, that jurisdiction over labour relations within nuclear undertakings lies exclusively with the federal authority. One could argue that such is also the case with those aspects of nuclear undertakings which are connected with workers' health and safety as well as environmental protection, since those matters are intimately linked with the control of atomic energy.
Two main conclusions can be drawn from this study. Firstly, it appears certain that Parliament, in legislating as it did, intended to regulate the whole nuclear energy cycle, from the extraction of uranium ore to the ultimate disposal of nuclear waste. Secondly, that authority could hardly be challenged by provinces or any other interested party, at least on constitutional grounds.
La participation des citoyens aux choix énergétiques généraux
Authors: Camilleri Gérard 
Published: July 2012

Many citizens have been alarmed by the development of nuclear facilities, especially when the proposed site for a nuclear plant is located in their neibourghood or region.
Parliamentary democracy is not particularly appropriate as a means of channeling citizens' apprehensions and commrnyd. Legislative power is delegated every four years or so to elected members of Parliament. Meanwhile, citizens have no say in the business of the State. The administration is even more remote since administrations of government departments, boards and corporations are not elected and parliamentary control is often weak and sometimes non-existent.
The frustration of citizens and groups is therefore exacerbated by the lack of access to the decision-making process. Exasperation sometimes leads to violent demonstrations and acts of terrorism.
To counter this feeling ofpowerlessness, governments have developed some means of positive participation.
Firstly, channels of information have been opened so that rumours can be replaced by facts and objective policy statements. This requires from the Administration that its proposals be fully justified and that preliminary work has been made.
Secondly, the development of public inquiries gives interested persons and groups the feeling they are integrated in the decision making process instead of being left outside in the dark.
Parliamentary control can be updated to allow for national debates on nuclear policy and its implementation.
Finally, the use of the referendum technique at the national, regional or local level would give back to the people their freedom of expression on such issues. The examples set by Austria and Sweden are particularly interesting in this respect.
However, the equilibrium between the requirements of democracy and political expediency still remains very hard to find.
Les techniques actuelles de contrôle démocratique et de participation aux choix énergétiques généraux au Québec
Authors: Garant Patrice 
Published: July 2012

Techniques of democratic control and public participation in general energy choices have recently been the concern of many, especially in Quebec. Firstly, over the last ten years, the Parliamentary Committee on Energy and Resources has been the forum of important debates and serious discussions. Members of the National Assembly have been able to follow to a certain extent the rapid evolution of energy policies and to articulate the concerns of the general public. Those responsible for Crown corporations (Hydro, SOQUIP) have had to account for their projects and to report regularly. Through public hearings, various economic agents have had the opportunity to present their views on many occasions.
The second important technique, the use of an indépendant regulatory agency, in this case, the Quebec Gas and Energy Board, with a rather limited jurisdiction, has been the centre of discussions. Some see in that formula an adequate channel of public participation ; others have some hesitation about accepting the broadening of the role of an indépendant regulatory agency, where important issues have to be dealt between the Minister and major Crown corporations.
Le juge : censeur de l'action de l'Administration
Authors: Brown L. Neville , McNicoll Micheline 
Published: July 2012

As Professor Wade rightly reminds us : « The powerful engines of authority must be prevented from running amok ». The control of the legality of administrative action by the ordinary courts prevents such action being arbitrary or unreasonable. But in sitting in judgment upon the administration, does not the judge risk usurping the role of the administrator ? This is a real misgiving which many authors share : they complain of « Government by judges ».
The present article (based upon a public lecture delivered at Laval University in October 1983) considers this aspect of judicial control, especially in relation to certain recent decisions of the English superior courts.
La finalité des décisions de la Commission de protection du territoire agricole du Québec : quelques réflexions sur l'affaire Bell Hélicoptères
Authors: Glenn Jane Matthews 
Published: July 2012

In the Bell Helicopter case, the government intervened under the Act to preserve agricultural land to grant Bell the necessary permission to install a helicopter assembly plant in an agricultural zone near Mirabel Airport notwithstanding a decision to contrary effect by the Commission de protection du territoire agricole du Québec (C.P.T.A.Q.). It did so even though the statute states that such decisions are « final and without appeal ». This article examines the role of the provincial government in protecting agricultural land and suggests several statutory changes that could ensure an effective role to the government while still respecting the independence of the C.P.T.A.Q.
Quelques propositions
Authors: Rémillard Gil 
Published: July 2012

Professor Rémillard questions the failure of the Senate after dealing with the debate on its reform within the context of Rapatriation of the Constitution. The Fathers of Confederation intended the Senate to represent and protect regional interests. It has enough powers to be effective but fails to manage its very own powers. The passivity might explained by the fact that senators have been too bound by party discipline to be reliable.
An extended reform of the Senate would certainly be better than its abolition. First, the Senate should fight to keep democracy alive and to counterbalance the powers of the House of Commons. It should be an effective guardian of regional interests in the dual Canadian context.
The author suggests that the reform of the Senate should be done within the limits of an entire reform of federal institutions. This would help Canadian federalism preserve its parliamentary system.
Preventing Discrimination and Positive Protection for Minorities : Aspects of International Law
Authors: Humphrey John P. 
Published: July 2012

Un pays est jugé par la façon dont il traite ses minorités, selon les paroles de Gandhi. L'auteur voit dans le respect de cette « règle de l'égalité » le symbole d'une maturité politique certaine. On n'a qu'à considérer l'histoire des guerres mondiales pour comprendre comment la façon dont on peut traiter certaines minorités peut affecter la paix des nations. L'élaboration du principe « d'autodétermination des peuples » après la guerre implique comme corollaire la protection des peuples minoritaires.
Cette protection peut se faire sur deux plans, soit en cherchant à prévenir la discrimination, soit en élaborant des mesures positives de protection des minorités pour les aider à préserver leur identité. Sous quelles formes peut-on retrouver ces mesures de protection et quel en est l'impact réel, lorsqu'un pays entend davantage assimiler que protéger ses minorités.
C'est à cette question que l'auteur tente de répondre.
La protection constitutionnelle des minorités
Authors: Beaudoin Gérald-A. 
Published: July 2012

The author outlines areas covered by constitutional texts and in doing so points to various deficiencies. The first one is brought on by the override clause provided in Section 33 of the Charter which makes it possible to suspend certain rights and a second one is found in the fact that the Charter does not deal with social and economic rights, a deficiency which is most likely to be perceived by members of a minority.
His observations lead him to conclude that the courts will have to assume an activist role in order to implement various rights.
Les droits linguistiques canadiens en évolution
Authors: Fortier D’Iberville 
Published: July 2012

The Commissioner of Official Languages presents the evolution of linguistic rights from the time of Confederation up to the period of the Quiet Revolution in Québec.
This survey dwells upon guarantees granted to linguistic minorities in Canada. At the Federal level of government, the author describes the consequences of the Royal Commission of Enquiry on Bilingualism and Biculturalism : The Official Languages Act and the Canadian Charter of Rights and Freedoms. At the provincial level of government, he draws up an overall account of the factual integration of these laws.
His observations lead him to conclude that Canada will never be a homogeneous country with regard to linguistic rights and that minority aid systems are deficient.
As a solution, the author underscores the timeliness of Federal-provincial arrangements with a view to creating specific development projects for official language minorities in accordance with local needs, but founded upon a common basis.
Les développements possibles de la protection internationale des minorités
Authors: Capotorti Francesco 
Published: July 2012

Internationally, the basis for the legal protection of minorities is found in the International Covenant for Civil and Political Rights. In order to appraise the scope of this regime, the author first questions the degree to which protection provided under standards laid down in the Covenant may be sufficient. To this end, he distinguishes elements of non-discrimination and special measures for protecting minorities for which he underscores the genuine difficulties in applying them.
The author then questions the feasibility of devising other means likely to improve the fate of minorities that would not upset the delicate balance of Covenants. In such a perspective, he recommends the drafting of a Declaration by the United Nations General Assembly concerning minorities. He also draws attention to the hypothesis of developing international protection for minorities by increasingly resorting to local and territorial legal instruments by proposing greater usage of international means for implementing human rights.
Approche pragmatique du droit de l'État de punir
Authors: Manganas Antoine 
Published: July 2012

The author trys to find some rational justifications for the power of the State to impose penal sanctions. He explains why in some exceptional situations the mecanisms of the penal system cannot be replaced by other alternatives.
The State has to maintain its power to impose penal sanctions in three particular cases : in the case of dangerous offenders such as multirescidivists : in the case of persons who are not willing to execute the « alternative » measures ; and, most important, in the case of new offenses like impaired driving or crimes against the environment where the state has to be very tough. These are crimes of great danger for society and the offenders are often conscious of the dangerous nature of their conduct.
Le contrôle juridique des entreprises multinationales
Authors: Trotier Benoît 
Published: July 2012

The multinational enterprise (MNE) is clearly a major factor for economic development but it exacts a heavy toll upon nations : a genuine loss of economical and political autonomy. Both home and host countries may feel their national goals put in jeopardy due to centralized decisions and commercial practices of this type of firm. Thus, nations have conceived a wide variety of controls seeking to sway the behavior of the MNE but such controls tend to exacerbate tensions between home and host countries while compelling the MNE to work amidst contradictory regulations in an uncertain environment. On the international level, many agreements have been concluded or are being discussed within different organizations but none of them has resulted in a binding act with compelling effects on the MNE. Nonetheless, if these agreements are considered to be a pledge to pursue future multilateral action, they may be completed by an all-encompassing collection of industrial and financial data on MNE's as well as by bilateral conventions on the conditions of foreign investment.
La conformité entre les règlements d'urbanisme, le plan d'urbanisme et le schéma d'aménagement
Authors: Marchand François 
Published: July 2012

Since the adoption of an Act respecting land use and development, the council of a regional county municipality has a legal obligation to adopt a development plan.
Every municipality in the regional county community is also required to adopt a planning program, a zoning by-law, a subdivision by-law and a building by-law.
This program and those by-laws must be in conformity with the objectives of the development plan. In some cases, the local by-laws also must be in conformity with the local planning program.
In the first part, this essay establishes the difference between the obligation of conformity with the regional plan and the obligation of conformity with the local planning program.
In the second part, the essay analyses the principles of conformity ; first the principles of interpretation and second the principles of application.
La mise en oeuvre judiciaire de l'article 1 de la Charte canadienne et le droit de la preuve
Authors: Binette André 
Published: July 2012

The object of this paper is to show that rules of evidence are often unworkable in s. 1 Canadian Charter cases. A survey reveals that courts tend to use these rules selectively when a party attempts to demonstrably justify a reasonable limit to a guaranteed right or freedom. A parallel is made with the Supreme Court of Canada's flexibility in admitting extrinsic material in constitutional references. American law is useful in that it establishes the key distinction between adjudicative facts and legislative facts. Rules of evidence apply only to the former category. Legislative facts correspond to facts needed for a s. 1 demonstration. It should be recognized in Canada that rules of evidence are inapplicable to such facts because of the specific purpose and importance of judicial reasoning in Charter cases.
L'immunité constitutionnelle des corporations provinciales
Authors: Lavoie Chantal 
Published: July 2012

This paper purports to examine whether provincially incorporated corporations are immune from federal laws affecting their status and essential powers. Federal corporations enjoy such an immunity in respect to provincial laws. After considering the nature of the provincial power of incorporation, we focus on the basis of the status and essential powers immunity. Federal immunity is either founded on the paramountcy and the inoperability of the law or on the exclusiveness and the inapplicability of the law (reading-down doctrine). The latter hypothesis would allow provincial companies to benefit from an immunity analogous to the one recognized for federal companies.
Furthermore, such an immunity will render certain, but not all, federal laws inapplicable to provincial corporations. A distinction must be drawn between a law pertaining to provincial corporate matters and a law regulating business activities. In the latter case, the provincial corporation must observe this law since it does not impair its status and essential powers.
La liberté d'expression commerciale
Authors: Binette André 
Published: July 2012

The Quebec Court of Appeal has recently decided that commercial speech is protected by s. 2 of the Canadian Charter of Rights and Freedoms and by s. 3 of the Quebec Charter of Human Rights and Freedoms. This article tries to mesure the significance of this judicial extension of the constitutional protection of freedom of speech. Canadian case-law is examined as well as the more important decisions of the Supreme Court of the United States.
An attempt is made to reveal the conflict injudicial values and political philosophy that underlies the debate over commercial speech. This conflict revolves around the constitutional relationship between law-makers and the courts on matters of social and economic policy. The suggestion is made that commercial speech is an intellectual and legal vehicle for the political objectives of the New Right.
The author concludes that whatever the proper distribution of constitutional authority on the subject may be in the U.S., a different social configuration in Canada should lead our courts to a very careful consideration of the American cases.