La modification constitutionnelle de 1987, la reconnaissance du Québec comme société distincte et la dualité linguistique du Canada

On June 3, 1987, the Prime Minister of Canada and the ten provincial premiers signed the 1987 Constitutional Accord in which they agreed to amend the Canadian Constitution in order to meet the Quebec government's conditions for adherence to the Constitution Act, 1982. The recognition of Canada's linguistic duality and of Quebec as a distinct society were among the constitutional amendments agreed upon. These clauses continue to spark controversy, with some commentators claiming that the terms used in the Accord are too ambiguous, while others argue that their insertion in the Constitution will give rise to politically undesirable results. The author considers the meaning of these clauses and presents an historical account of the notions of “duality” and “distinct society” by analyzing their essential elements. He argues that if governments have recognized duality in order to protect the official language minorities, the purpose of the clause dealing with the protection and promotion of Quebec's distinct society is to maintain and develop its Francophone character. Where these two objectives conflict, the clause in the Constitutional Accord recognizing Canada's linguistic duality will prevail. The Accord's potential impact on the division of legislative powers and the Canadian Charter of Rights and Freedoms are also examined. In the author's opinion, the division of powers will not be modified; however, the recognition of duality and of Quebec as a distinct society may limit the potentially centralizing effects of the Charter. On the other hand, by relying on the duality clause, the courts will be able — should they so desire — to give the Charter's language guarantees a broader interpretation than they have until now been accorded. The author concludes by considering the possible interplay between the linguistic duality and the distinct society clauses once they are entrenched, and the multiculturalism clause (section 27 of the Charter,)

La procédure nécessaire pour modifier l'article 93 de la Loi constitutionnelle de 1867

Dans la présente étude, l'auteur tente de déterminer selon quelles modalités de la procédure de modification constitutionnelle prévue dans les articles 38 à 49 de la Loi constitutionnelle de 1982 pourraient être modifiées, en ce qui concerne le Québec, les dispositions de l'article 93 de la Loi constitutionnelle de 1867. On constatera que, s'il existe un certain nombre d'arguments en faveur de la thèse voulant que cet article puisse être modifié « bilatéralement » par le Québec et les autorités fédérales, d'autres arguments, par contre, pourraient amener à conclure que, en plus de l'accord du fédéral et du Québec, celui d'une ou de plusieurs autres provinces serait également requis.In this study, the author attempts to determine under what conditions of the procedure for constitutional amendment provided under sections 38 to 49 of the Constitution Act, 1982, the provisions of section 93 of the Constitution Act, 1867 could be modified with regard to Quebec. It appears that while there are arguments supporting the thesis whereby this section could be amended « bilaterally » by Quebec and federal authorities, other arguments could on the contrary lead to the conclusion that in addition to the federal-Quebec agreement, the agreement of one or more other provinces could also be required

Les trois dimensions de la protection des minorités en droit constitutionnel comparé

[À l'origine dans / Was originally part of : Fac. Droit - Coll. facultaire - Droit constitutionnel et Libertés publiques

Vers une théorie du système monétaire international

The idea of an international monetary System comprised of a number of countries (monetary zones) linked together by an exchange rate mechanism controlled by the I.M.F. - the system's center - is the basis of the vast majority of the analyses and reform schemes respecting the System.This idea does not correspond to international economic and monetary reality which is organized around one or several international currencies (or key currencies) with regard to which the Central Bank(s) exercise(s) the de facto role of the System's monetary authority. This fact raises two theoretical questions : How is a Central Bank led to exercise such a role ? How, in fact, does the System function ?It is significant that the textbooks rarely treat the first question other than from an historical perspective. It would nevertheless appear that the explanation for the development of Euromarkefs employs a number of analytical tools that allow for a theoretical framework for the evolution of the I.M.S. based on the idea of competition among financial institutions and banks.On the one hand, this theory anticipates the long-term integration process of markets characterized by the erosion of regional markets and the growth of a new dominant market and therefore by the coexistence of regional authorities and a central authority sharing monetary power. On the other, it advocates the mix of unification and macroeconomic management policies that these authorities must adhere to in order to optimize the process.In the second part of the text the operation of a monetary zone such as the dollar standard of the last thirty years is examined. The organization of that zone provides an example of the distribution of monetary power as between the Federal Reserve System and the central banks of other countries. A consideration of the operation of an International Monetary System having two key currencies completes the study

La Constitution canadienne et la protection des minorités ethniques

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. 

Le juge interne canadien et le droit international

Given the almost total lack of constitutional or statutory provisions for the formulation and application of international law, Canadian courts have been invested with the basic responsibility for devising solutions to the problems that have arisen in this field. This paper examines how successful the courts have been as well as the way in which legal literature has reacted to their performance. It is the view of the authors that in dealing with international customary law, Canadian courts have applied solutions adapted from the law of Great Britain in a purely empirical way. While the absence of any theoretical framework has not been a crucial impediment until now, it is difficult to see how future problems can be resolved without any reference to basic principles. With respect to the interpretation and application of treaties, the transposition of principles derived from British practice to a federal context has been the source of notorious constitutional difficulties. Generally speaking, because of the traditional reverence accorded to the will of Parliamant, Canadian courts have been reluctant to recognize any measure of supremacy to international law