Érudit's RSS Feed

ERRATUM

None

Le cerbère constitutionnel (deuxième partie) : la procédure des arrangements spéciaux

Hubert Cauchon and Patrick Taillon
Since the failures of the major rounds of constitutional negotiations, the special arrangements procedure provided for in section 43 of the Constitution Act, 1982 has been the most frequently invoked avenue when it comes to amending a provision of the Constitution of Canada. This article proposes a new analytical framework for this procedure, allowing for a better understanding of its relationship with the other amendment procedures that make up Part V of the Constitution Act, 1982.To achieve this, the authors first highlight a classification focused on identifying the state bodies affected by these arrangements. They then outline the method to be followed to enact new special arrangements. In this regard, they extract, from existing arrangements, two criteria that distinguish the constitutional provisions that can be amended either by the special arrangements procedure or by the unilateral provincial amendment procedure. Finally, the authors show how the special arrangements procedure alone cannot resolve the difficulties related to the adoption of a French version of the provisions enacted in English only.

La trajectoire des politiques canadiennes relatives aux activités des entreprises extractives canadiennes à l’étranger : deux décennies de droit mou (soft law) qui se durcit ?

Lynda Hubert Ta, Paule Halley and Marie-Dominik Langlois
This two-part article looks at two decades (2004–2024) of human rights issues raised by the activities of Canadian extractive companies abroad. Considering the current consensus seeking to transcend the bipolarity between voluntary and mandatory standards and adopt a mixed and complementary approach, the article analyzes Canada’s responses or attempted responses to these issues. Part I, the subject of this publication, explores Canadian government policies in this area, and analyzes different strategies and mechanisms they put in place to shape due diligence abroad. In a subsequent publication, the second part analyzes and comments on the legislative and judicial initiatives of recent decades, also aimed at making Canadian extractive companies more accountable abroad. This first part examines whether the Canadian government’s most recent policies, adopted during the period from 2019 to 2024, represent a break with the policies of the previous period, from 2004 to 2019. The authors conclude that, while the most recent policies represent a change of tone in the discourse used by the Canadian government, the approach adopted remains essentially the same and is in continuity with the first policy period. Although they introduce practices requiring due diligence in certain cases, we are witnessing a “soft hardening” of soft law, i.e. the institutionalization of voluntary standards and practices, some established by the industry, while at the same time introducing a few —albeit very limited—mandatory provisions.

Les conséquences de la violation de l’article 1275 du Code civil du Québec : réflexions sur l’affaire Fiducie Historia

Michael H Lubetsky
It is often overlooked that the Tax Court of Canada is frequently called upon to rule on thorny doctrinal issues in Quebec civil law. In the case of Fiducie Historia (under appeal), the Court weighed in on the longstanding debate over the consequence of a violation of article 1275 CcQ, which requires that a trust have at least one trustee who is neither a settlor nor beneficiary. Quebec doctrine and jurisprudence are divided between those who argue for absolute nullity and others who argue for relative nullity. The Court placed itself in the latter camp, holding that a violation of article 1275 CcQ results in relative nullity that the tax authority does not have standing to invoke. Without offering an opinion on this conclusion, this article notes that certain aspects of the Court’s reasoning seem incomplete, particularly concerning the legislative objectives of article 1275 CcQ as well as the impact of other articles of the Civil Code of Quebec concerning the supervision of trusts as well as acts performed ultra vires. An appeal of this decision has been instituted before the Federal Court of Appeal, which should have important clarifications to offer. The case is one to follow.