bluuebunny/crossref_metadata_2025_split huggingface dataset:
La responsabilité civile découlant de l'inaction gouvernementale
Authors: Brown L. Neville , Lemieux Denis 
Published: July 2012

The proliferation of governmental controls and services has created new aspects of governmental liability. The courts have had recently to decide cases where the claimant alleged that he had been affected by the failure of a public body to act in fulfillment of its responsabilities.
Our purpose is, firstly, to indicate the nature and extent of the action for damages resulting from the violation of a statutory duty in English law. We will, then, discuss some recent applications of these principles in Anglo-Canadian and Quebec law.
The Supreme Court ofthe United States and the Law of Libel: A Review of Decided Cases
Authors: Hudon Edward G. 
Published: July 2012

Pendant presque deux cents ans aux États-Unis, le droit du libelle a relevé exclusivement de la common law d'origine anglaise dont les États-Unis ont hérité au moment de la révolution américaine. Quiconque publiait, publiait à ses risques et périls. Selon le système constitutionnel américain à cette époque, toute expression diffamatoire, écrite ou verbale, même sans l'intention de diffamer autrui, était hors de la protection accordée par la constitution à la liberté de parole et de presse. Mais tout cela a changé avec le jugement de la Cour suprême des États-Unis dans New York Times Co. v. Sullivan, décidé en 1964. En effet, ce jugement a déclaré que le droit du libelle selon la common law était, en bonne partie, incompatible avec la protection accordée à la liberté de parole et de presse par le premier amendement à la constitution des États-Unis.
Dans le présent article, l'auteur analyse les changements qui ont résulté de New York Times Co. v. Sullivan depuis que ce jugement a été rendu. Il montre comment la Cour suprême elle-même a, de temps à autre, changé son interprétation de ce jugement, explique que ce changement résulte du changement de personnel du tribunal lui-même et prédit qu'il y aura encore plus de changements dans le proche avenir.
La grève dans les services publics en droit français
Authors: Frossard Joseph 
Published: July 2012

This paper describes the limitations on the constitutional right to strike that apply to public employees in France.
While recognizing the right to strike for all salaried workers, whether employed in the private or public sector, the Preamble to the 1946 Constitution, incorporated by reference into the present Constitution, allows for limitations being imposed on that right by statute.
Indeed, specific legislation has either prohibited or limited the right to strike for various classes of public employees. This has been held constitutionally valid insofar as the statutory bar or restriction is required to prevent essential functions of the State from being interrupted or to ensure that the vital needs of the country are being provided for.
Even where no specific restrictive legislation applies, strikes by the staff of « public services » — including not only central and local government employees, but also employees of major nationalized industries, institutions such as hospitals, and even private undertakings providing some public utility or service — are subject, under the Labour Code, to a number of restrictions. In particular, five days' notice of the strike must be given by a representative union. And certains forms of striking, such as rotating strikes, are prohibited.
In addition, the employer authority may, under the doctrine of « essential services », make administrative regulations identifying which units or staff positions are considered essential. These regulations are subject to review by the administrative courts on the basis that the constitutional right to strike may only be curtailed insofar as is needed to preserve State authority and security or the safety of the public.
La preuve devant les tribunaux administratifs et quasi judiciaires
Authors: Garant Patrice 
Published: July 2012

Procedure before quasi-judicial boards and tribunals has recently attracted abundant comment as well as some criticism. In administrative law, rules of evidence form an important part of procedure. In this paper, the author first tries to define what are the sources of the law of evidence before quasi-judicial agencies in Québec : the common law, the two Codes, statutes and regulations. Then follows in two parts an overview of the principal rules that govern the manner in which claims and arguments are brought before tribunals and the extent to which specific provisions or general principles of administrative law allow tribunals themselves to gather evidence required for the purposes of a decision. The paper suggests that administrative justice requires that the tribunal really be « master of the procedure », within the framework of natural justice.
L'autorisation d'exercer le recours collectif
Authors: Bouchard Mario 
Published: July 2012

This paper is basically an analysis of art. 1003 of the Code of Civil Procedure of Québec.
Following a brief survey of the origins of class actions in English and American law, the Québec class action is defined as a form of procedure available to plaintiffs only, based on the existence of a group acting through a representative. It is then distinguished from similar forms of procedure, whether under Québec law (art. 59 and 67 C.C.P.) or foreign law (constitution de partie civile, relator, Adhasionsprozess, etc.). The introductory part goes on to examine the relationship of class actions to basic principles of civil procedure in Québec (such as the rules on standing), to challenge some widely-held beliefs concerning class actions and their social and economic impact, and finally to underline the unitary character of class actions under Québec law.
Brought under closer analysis, the introductory paragraph of art. 1003 underscores the requirement of a hearing by the court, indicates the nature and timing of judicial authorization, and determines the scope and extent of the conferment of representative status. The case of groups referred to in art. 1048 C.C.P. is examined in this connection.
The paper then surveys in turn each of the lettered paragraphs of art. 1003 C.C.P., in the light of similar provisions in Québec and other jurisdictions, with special reference to the American Federal rule. Similitudes and contrasts are thereby brought into view. It thus appears that paragraph d) is alone in showing definite American influence; indeed, discussion of this paragraph centres on foreign law. A critical review is made of the cases under each of the paragraphs. Certain approaches to the construction of art. 1003 are also criticized, especially those implying further conditions to the grant of representative status or involving the use or irrelevant tests in this regard, in spite of differences between American and Québec procedures or between the American and Canadian constitutions. Finally, the paper underlines the requirement, imposed by art. 1022 and 1024 C.C.P., that conditions laid down by art. 1003 continue to exist throughout the duration of the case.
The paper concludes that the Québec class action is probably the most liberal of all, and may open up new approaches toward using court proceedings to implement policy. However, it is feared that the courts may prove unreceptive to the innovative spirit behind this form of action; indeed, some cases decided so far seem to show a serious misapprehension of its character.
Pour un manuel de légistique
Authors: Le May Denis 
Published: July 2012

The purpose of this paper is to advocate the creation of a legislative drafting manual that would suit the needs of all those concerned with the legislative process.
The order and editing of the Manual are examined in two successive parts.
The proposed Manual outlines an editing, conservation and retrieval method. A comprehensive classification scheme would cover all steps, all aspects and all fields of legislation.
An editor / coordinator would assure control and follow-up on the Manual which would be published in parts, through a Bulletin. The classification scheme would allow users to classify all sections or parts according to their needs.
Le bilinguisme judiciaire au Québec
Authors: Prujiner Alain 
Published: July 2012

The tradition of bilingual proceedings before Quebec courts is examined firstly, as to its historical development, and, secondly, as to the legal and sociological aspects of the question. Although the province of Quebec has since 1760 always permitted some form of bilingual representation at the judicial level, the legislature has pondered more than once during this period over the exact status the French language should enjoy in its courts. The author believes that the effectiveness of the present-day system depends largely upon the notion of individual, rather than institutionalized, bilingualism and that its future success lies in the willingness of the province's lawyers to meet the linguistic requirements of the courts.
It has been proven that discriminatory linguistic policies lead necessarily to major conflicts. On the other hand, acceptance of the group's language rights will serve to reinforce its feeling of belonging to a social unit. However, it is the author's opinion that more than a coherent policy is needed to ensure the survival of a particular language in the courts.
Les écoles et la Constitution
Authors: Magnet Joseph Eliot 
Published: July 2012

The question of education is probably one of the thorniest political problems in Canadian history. English andfrench speaking Canadians have long stood divided on the matter.
In the first part of his article, the author describes the effect of two specific clauses of article 93 of the BNA Act on the nation's schools. Much of the hostility felt by Canada's major linguistic groups can, from his point of view, be linked to these two provisions.
In the second part, he discusses the recent constitutional reforms and expresses the hope that the new agreement, if correctly implemented, will bring about the long-awaited reconciliation between Canada's linguistic communities.
Le recouvrement de l'impôt et les droits de la personne
Authors: Brun Henri 
Published: July 2012

Those who like to pay tax are few. Accordingly, income tax is often described as a shame. Of course, the right to enjoyment of property is at stake in the matters of taxation. And the collection of taxation involves also other aspects of the right to substantive and procedural due process of law : right to privacy, to be heard, to unbiassed decision, to professional secrecy...
This article contrasts these rights, as they are expressed in sections 5 to 9 and 23 of the Charte des droits et libertés de la personne of Québec and section 8 of the Canadian Charter of Rights and Freedom, with sections 13 to 16 and 38 and following of the Loi sur le ministère du revenu of Québec and sections 159, 231 and 232 of the Canadian Income Tax Act.
It finds that it is the application of the income tax law, more than the law itself, that threatens human rights. It concludes that the main benefit of both Charters of rights is to provide a shelter from such unreasonnable application
Une doctrine d'abus de procédure revigorée en droit pénal canadien
Authors: Grondin Rachel 
Published: July 2012

This article examines the doctrine of abuse of process in Canadian criminal law in the light of two recent events, the decision of the Supreme Court of Canada in Amato c. R. and the adoption of the Canadian Charter of Rights and Freedoms.
The consideration of Amato v. R. in the firts part of the article shows that the majority of judges of the Supreme Court support the existence of the doctrine of abuse of law, and their reasons for this are examined.
The effects of the Charter upon such a doctrine is demonstrated in the second part. The American experience is cited, showing the interrelationship of the U.S. Constitution and the doctrine of abuse of process. This is followed by a comparative table of Canadian cases in which the procedure was halted either because of the doctrine or by virtue of the Charter, particularly s. 24(1) which permits judges to stay proceedings for reasons of infringement or denial of guaranteed rights or freedoms.
The article concludes that the doctrine has not been superceded by the Charter, but rather that it plays an important role par ailed to it : the former protects the integrity of the legal process while the latter safeguards the rights of the individual.
Le rôle de l'État quant aux grandes orientations en matière énergétique
Authors: Garant Patrice 
Published: July 2012

The State, whether at the federal or provincial levels, is deeply involved in the determination of the orientation of energy policy. It assumes a major role as « planner », « regulator », « producer » and « distributor ».
One has first to take into account the constitutional context, that is the division of powers outlined in our Constitutional Acts of 1867 and 1982. There is now a complex balance of power which, although it appears to satisfy all parties, require considerable dialogue to work out. This is called at home and in other federal countries « cooperative federalism », with some federal para-mountcy nevertheless.
L'enquête publique préalable à la décision comme modèle alternatif
Authors: Lemieux Pierre 
Published: July 2012

Problems relating to individual and group involvement in the administrative decision making process, its opportunity, modalities and efficiency are illustrated in the context of preliminary public inquiries that precede legislative decisions.
This study focuses on the public's involvement in the application of government decisions. This is illustrated by two specific examples : the inquiry before the Bureau d'audiences publiques sur l'environnement and the proposed new public consultation policy of the A tomic Energy Control Board of Canada.
La Loi constitutionnelle de 1982. Droit des autochtones
Authors: O’Reilly James 
Published: July 2012

This article deals with the rights of the Aboriginal Peoples of Canada recently recognized in the Constitution Act, 1982. It provides a brief analysis of the nature and scope of these rights and their historical context by reference to some of the principal cases on Indian title.
There is a short treatment of section 91(24) of the Constitution Act, 1867, and finally a summary of the 1983 Constitutional Accord on Aboriginal Rights and the amendments to the Constitution of Canada contemplated by the Accord.
Les pouvoirs de légiférer en matière de langue après la « Loi constitutionnelle de 1982 »
Authors: Pelletier Benoît B. 
Published: July 2012

The object of this study is to ascertain the power of the federal and the provincial governments to legislate concerning language in Canada.
After a study of the ancillary doctrine as the constitutional basis for the exercise of this power by either level of government, the author studied the constitutional restrictions on its use, and determined the following restrictions :
1. For the federal government and the government of the province of Quebec, only : section 133 of the Constitution Act, 1867 which is also an entrenched provision providing minimum rights.
2. For the province of Manitoba only : section 23 of the Manitoba Act, 1870 which is also an entrenched provision providing minimum rights.
3. For the province of New-Brunswick, only : sections 16(2), 17(2), 18(2), 19(2) and 20(2) of the Constitution Act, 1982.
4. For all provinces, subject to the present inapplicability of section 23(1) a) of the new charter concerning the province of Quebec : section 23 of the Constitution Act, 1982.
5. For all provinces and for the federal government : section 16(3) of the Constitution Act, 1982, section 15(1) which recognizes the right to equality, and 2b) which recognizes the freedom of expression.
Finally the author studied the implications of the reasonable limits' provision outlined in section 1 of the new charter, this constituting the only means for our governments to avoid the application of the charter to their legislation.
L'action d'intérêt collectif
Authors: Verge Pierre 
Published: July 2012

Group action is inherent to a pluralistic society. In various fields, numerous bodies purport to defend and promote the common interest of their members which is also the raison d'être of the group. How receptive is the judicial system to attempts by such groups to legally defend the common aim ?
« Collective actions » are brought to assure the legal protection of a collective value which is not of a general societal nature as is the public interest. However, their purpose is not to defend the subjective patrimonial interest of the members of the group or even of the group itself. The underlying collective interest is first to be objectively identified in order not to unduly curtail the reception of the collective action; then it is for the Court to establish whether there is a sufficient relationship between the collective interest and the general objects of the group, as officially defined, in order to allow the latter to act. This analysis of the « sufficient interest », as required by Sec. 55 C.C.P., it is suggested, appears to be more adapted to the nature of the collective action than the immediate requirement of a « direct and personal » interest from the group, at least if this notion is to be understood as involving some form of patrimonial interest, as in most trials.
Indian Nations: Not Minorities
Authors: Mandell Louise 
Published: July 2012

A travers les légendes des peuples indiens, nous pouvons sentir l'étroite relation existant entre eux et leurs territoires.
En retraçant l'histoire des nations indiennes, nous pouvons constater une diminution de la reconnaissance et de la protection de leurs droits. L'auteur relate, du 17e siècle à nos jours, l'évolution de cette situation à travers les événements majeurs, les traités et les politiques qui l'ont marquée.
Native People's Rights
Authors: Daes Erica-Irene 
Published: July 2012

Ce sont de facteurs sociaux, économiques et politiques que dépend la survie des populations indigènes. La protection de certains droits est considérée de première importance.
L'auteur conclut dans cette optique qu'il est primordial d'accéder à une reconnaissance effective des droits des peuples indigènes et cela, par l'intermédiaire de garanties constitutionnelles et de conventions internationales.
Les peuples indigènes constituent une force vitale et doivent être traités de façon à ce qu'ils se réalisent
Le concept d'égalité : définition et expérience
Authors: Kiss Charles Alexandre 
Published: July 2012

The right to equality is one of the most fundamental of human concepts. The author draws attention to the fact that this right is often depicted in negative terms, usually stating that any form of discrimination is forbidden.
The concrete application of equality can sometimes lead to inequalitarian measures. An even policy for equality that is applied to unequal parties can result in a form of inequality. This is the reason why the author endorses equality in fact and not just as a formality in law. According to him, it is indispensable to take positive and specific measures in order to place minorities in a situation of equality and development. These measures, far from being contrary to the principle of non-discrimination, are in conformity with provisions in international treaties pertaining to the right to equality.
La judiciarisation des conflits linguistiques au Canada
Authors: Bilodeau Roger 
Published: July 2012

In this paper the author examines the importance of constitutional litigation as an instrument for promoting minority linguistic rights in Canada. He goes on to explain the reasons which drove him to challenge a unilingual English traffic summons which he received in Manitoba.
Court proceedings are not the only means of strengthening minority language rights. The author underscores the importance of informing and educating the public as to the role and place of linguistic minorities in Canadian history. He also emphasizes the fact that heads of state should exercise more leadership in the area of language rights.
Ce qui est abusif au sens de l'article 8 de la Charte canadienne lors de la recherche de preuves
Authors: Auger Bernard 
Published: July 2012

In determining whether legislation permitting search and seizure properly meets the requirements of section 8 of the Canadian Charter of Rights and Freedoms, the courts have been obliged to balance the right of the individual to be secure against unreasonable search and seizure with the right of the state to ensure compliance with the law. In Hunter v. Southam, the Supreme Court of Canada established the minimum criteria of reasonable search and seizure for the purposes of section 8. The liberal approach adopted by the Supreme Court raises an important question : Should the same criteria apply to administrative statutes empowering bodies to conduct inquiries and inspections ?
The author compares section 8 of the Charter with the American 4th Amendment, examining the requirement for search warrants in the light of Canadian cases. He then examines and discusses the case law concerning the applicability of section 8 to statutory provisions relating to the production of documents and the standard of reasonableness that should apply to these situations.
Un aspect crucial mais délicat des libertés de conscience et de religion des articles 2 et 3 des Chartes canadienne et québécoise: l'objection de conscience
Authors: Brun Henri 
Published: July 2012

The Supreme Court of Canada, obiter, in the Big M Drug Mart Case, has spoken of the "Constitutional Exemption". It is the possibility not to be bound to obey the neutral laws that conflict with one's conscience or religion. It is what we call in French l'objection de conscience.
The institution exists in Canadian and Québec Law as a part of the right to freedom of conscience or religion expressed in 2a) and 3 of the Canadian and Québec Charters of Rights. And it goes well beyond the right not to fight within the armed forces. The Supreme Court of Canada has actually delivered six judgments touching on the subject in 1985 and 1986.
The conditions under which l'objection de conscience come into play are not so well known however. Does it cover matters of worship or only rules of morals ? Secular or only religious principles ? Personal or only group beliefs ? Do the existence of the rule, the sincerity of the objector and the reasonableness of the exemption have to be proved? Above all, what is the difference between a creed and an opinion ?
The following article tries to formulate answers to these questions, with the help of current case-law.
Droit d'auteur et logiciel
Authors: Buron Denis 
Published: July 2012

Under the present Canadian Copyright Act, it appears that protection is granted to computer programs, or software, as well as to flowcharts and firmware, or chips, whithout any relevant distinction.
But the real problem is one of evidence. As a matter of fact, no layman can be expected to appreciate correctly a reproduction of a substantial part of a program where even experts are facing a troublesome task. New rules of evidence should be contemplated, based on behavior, since it is easier for the defendant to show that he did exercise creativity than for the plaintif to sustain that his work has been copied. That is especially important, considering that copyright seems to be the only answer for such badly needed protection.
Le Comité des droits de l'homme des Nations unies
Authors: Côté-Harper Gisèle 
Published: July 2012

In the area of Human Rights, one of the most important events of the last fourty years has been the adoption of the International Pact concerning civil and political rights including the optional Protocol.
The author examines the functions that the Pact assigns to the Human Rights Committee and remarks on the major role that this Committee assumes in the area of Human Rights' protection and of the strengths and weaknesses of this organism.