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Le droit public à la croisée des savoirs et des influences : mélanges offerts au professeur Daniel Mockle

Marc Mancini

Gouvernance publique et force latente du droit : du recul à l’encerclement : regard sociologique sur l’oeuvre de Daniel Mockle

Pierre Noreau
Much of Daniel Mockle’s work is focused on the evolution of new public governance. He offers insightful analysis of the changes that take place within the law in the wake of new public management. Initially prompted by a sense of perplexity about these new forms of normativity and the potential erosion of legislative (“official”) law, Mockle’s subsequent observations bring to light a slow transformation of the legal form itself in public law. This text provides a sociological re-reading of Mockle’s writings over a period of twenty years. It demonstrates that, even when approached from the perspective of other disciplines, Mockle’s work constitutes an important contribution to contemporary public law theory. It highlights the various tactics by which the legal form is gradually reclaiming the normative innovations resulting from Soft Law.

Le droit de la gouvernance : l’identité juridique de la gouvernance

Stéphane Bernatchez, Alexandra Bouchard, Marie‑Eve Couture-Ménard and Marie‑Claude Desjardins
This article offers an explanation of governance law, which emerged in the 21st century as one of the contemporary transformations of normativity. Professor Daniel Mockle was the legal scholar who coined the term “governance law” to describe this recent legal development. A study of his work on new public governance reveals the origins of this concept and the stages of its theorization. This article proposes a conception of governance law based on its requirements, processes, normative instruments and standards.

Le régime de prévention québécois à l’aune du droit à l’égalité : amorce d’une réflexion sur la cohérence du droit

Rachel Cox
This article examines the implications of the teachings set out by the Supreme Court of Canada in the Caron decision for the occupational health and safety regime. We conducted a review of the jurisprudence related to the implementation of the right to equality and the duty to accommodate within the framework of the prevention regime. The legal standards identified were analyzed in terms of their legality, effectiveness, and legitimacy. We conclude that there is a deficit in the effectiveness of the employer’s duty to accommodate when the worker is in a situation of disability or in response to a pregnant worker’s request for reassignment. Moreover, we observe that both the CNESST and the courts were already applying the rule of Charter-consistent interpretation in matters relating to the preventive withdrawal of pregnant workers. Legal coherence and legitimacy would require the same approach to be applied across the prevention regime for all grounds of discrimination prohibited under the Charter.

Les défis de la surveillance basée sur le risque pour un management public plus efficace : un regard sur l’utilisation du pouvoir d’inspection

Suzanne Comtois and Patrick Mignault
In line with the principles of new public management, regulators are expected to manage public affairs effectively in order to prevent or reduce non compliance. To this end, they are often given broad inspection powers to enforce the applicable regulatory regime and thereby preclude social and other problems arising from failures to comply. To circumscribe the exercise of these powers and promote the achievement of the objectives outlined, the public administration does not hesitate to establish, on the fringe of positive law, governance instruments (policies, principles, rules of good administration, codes of conduct, monitoring frameworks) adapted to the specific needs and characteristics of each of the sectors involved. For the sake of transparency, these should undoubtedly be communicated to the regulated sectors, but this doesn’t always seem to be the case. With a view to sound public administration and the pursuit of optimal organizational efficiency, risk‑based framework is one of the methods promoted by regulatory bodies to justify the rational use of their resources and to achieve their objectives. Applied in the context of regulatory compliance, this approach essentially consists in establishing priorities among the monitoring activities carried out by the public administration based on risk identification, assessment and control. Although risk-based regimes lead to a more objective and quantifiable use of resources, they have a number of limitations that regulators must not overlook, particularly with regard to the management of weak or emerging risks or the implementation of this approach by working teams.

Santé Québec : une mer réglementaire dans un océan de gouvernance

Lucie Lamarche
In light of Professor Daniel Mockle’s work, this article examines the recent adoption of the Act respecting the governance of the health and social services system. The latter creates a new public body called “Santé Québec”. Professor Mockle has explored in depth the phenomenon of the migration of concepts from new public governance to administrative law and public administration law. He concluded that the principles of new public governance are now enshrined in positive law and, as a result, influence the legitimacy of administrative acts and broaden the spectrum of the founding principles of the democratic state. Drawing on this observation, we propose a six theme reading of the Act respecting the governance of the health and social services system, which has been described as a “mammoth” bill. The Act synthesizes a constellation of laws intended for the new governance of public bodies in Quebec. But can the management of services that account for more than 40% of public spending in Quebec be reduced to a matter of governmentality?

Les formulaires et l’administration publique

Michelle Cumyn
Forms are essential tools of communication between citizens and the State. This paper offers a comparative reading of the observations made on the topic of forms at a symposium held at Laval University and the principles outlined by Daniel Mockle in his recent book La gouvernance publique. The paper addresses the legality and legal effects of forms, and how they participate in the implementation of the principes of new public governance.