Abstract EN: Ownership is one of the fundamental notions in the Civil Code and yet far too often writings on the subject have presented a narrow view of it. Obviously, its has a well determined genetic code since its general attributes are usus, fructus, abusus and vis attractiva, while its specific features include exclusivity, perpetuity and absolutism ; still it remains a pliable concept. For on the one hand, though core prerogatives remain with the holder of the right, the attributes and features of ownership may not be so well affirmed, which immediately infers the existence of modalities of the right. Yet on the other, the core may be broken down since the object to such ownership then becomes a source of real rights, thus there is dismemberment. The flexibility of ownership resides in the numerous modifications it can undergo and which all potentially exist in ownership. Before attempting to study various hypotheses leading to the recognition of spatio-temporal ownership, it is indispensible to adopt a wide view of this notion since any other approach cannot produce satisfactory results. Among hypotheses under consideration, introducing a new modality seems the best solution. It does, however, have its drawbacks as the notion of spatio-temporal ownership runs against the grain of qualities inherent in the right of ownership. First of all, the holder of this right only exercices a limited abusus and in this respect he is not alone, for precedents exist with the holders of other means of ownership (substituted property, inalienable property, trust property). Furthermore, there would be an obstruction to the perpetual nature of such ownership. This proposal is, however, to be rejected since the spatio-temporal ownership is perpetual, although discontinuous. Once the initial obstacles are overcome, the introduction of an additional modality of ownership essentially requires the recognition of a fourth dimension in the object of ownership, namely its temporality. An abstract notion if ever there was one, temporality raises the question of the need for conceiving an owned piece of property as being a concrete and materialized thing. Nonetheless, ownership may be dematerialized for in fact, real estate property can be represented as a cube of space and not just a flat plane. The only obstacle to this new modality in ownership would be the impossibility of conceiving innominate changes to the right of ownership. In all the code, case law and authoritative writings presently recognize the capacity of the human mind to conceive additional modifications to rights of ownership. Spatio-temporal ownership depends upon the recognition of the temporal dimension of the object of such right and thereby constitutes a modality of ownership whose peculiarities derive from the individual form of its object. Although recognition of modality in ownership seems to be the only way for arriving at spatio-temporal ownership, we may consider various solutions based upon an arrangement of existing institutions in the law relating to ownership —which would allow the constitution of a spatio-temporal right of ownership. Despite its popularity, usufruct does not seem to us to be a satisfactory answer. Joint ownership is more attractive despite the ever-present expectation of a petition to partition. A covenant between undivided coproprietors would provide, in our opinion however, a delay in such partition and this covenant would be enforceable on both parties and beneficiaries. If doubts persist as to the legality of such a covenant, the revision announced in the proposed Civil Code of Quebec will calm such fears. Besides allowing the postponement of partition for a maximum period of thirty years, this revision will make possible the assignment of a piece of property to a durable end and ipso facto a waiver of partition. One must remain aware of the fact that despite the technique used to avoid partition, the right ownership is plural. It is only by the identification of an additional modality of ownership that there may be true spatio-temporal ownership.
Abstract EN: 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.
Abstract EN: It is a universally adopted principle, although it may seem commonplace and virtually self-evident, that in the construction of statutes words are to be read in their "grammatical and ordinary" sense. This is essentially a fundamental rule of language based on general principles underlying human communication, which is equally fundamental to the construction of statutes. Frequently cited over the years as the golden rule of construction, the rule has undergone similar developments in common law and civil law doctrines. Today's doctrine is one of literal construction, but literal in total context. The literal meaning discloses the intention. Except in the rare cases of a mistake or omission by the legislator, the legislative intention is to be found in the entire context of the words of a statute. Incidentally, the question whether a word should be given its ordinary meaning as opposed to its special or technical meaning or its full unrestricted meaning as opposed to its restricted meaning does not constitute a departure from the literal meaning of the statute. The author discusses the notion of "grammatical and ordinary"sense and surveys how the courts have construed it over the past decades.
Abstract EN: The difficulties which the interpretation of article 170 of the Criminal Code raises are to a large extent the result of the role language plays in legal discourse, as an intermediary between the legal text and the facts to which it must apply. While language makes possible — through its referential function — the application of the text to particular situations, it also introduces ambiguity into the legal text and leads to the need for interpretation.
Abstract EN: When scholarly research in law confines itself to source materials, it effectively allows positive law to prescribe the limits of the intellectual enquiry. When it does not so confine itself, scholarly research gradually erases as it progresses the boundary between the object of its own enquiry and that of other disciplines in the human sciences. In the author's view, if ultimately law is to be seen as more than standardized common sense armed with a big stick, it must become responsive, from within, to the findings of these disciplines. But this process of integration raises serious methodological difficulties. Their solution, assuming there is one, will draw on epistemology and a reexamination of the relationship between law and knowledge. One recent and most commendable contribution to legal epistemology is François Ewald's L'Étatprovidence. The author, a philosopher, sets out to explain how the fundamental rationality of the French legal system was transformed at the beginning of the XXth century. Having first described the respective functions of law, morality and benevolence in the post revolutionary liberal model, Ewald then shows how probability theory made possible the development of statistics, modern sociology and « insurance technology ». The advent of a workmen's compensation scheme, a result of these developments, marked an epistemological breaking point French private law. From then onwards, the order of distributive justice never ceased to expand: risk became the rule and fault the exception. The change is now irreversible and the modern Welfare State has created its own original brand of justice. Michel Foucault's influence is often noticeable in L'État providence, a complex but fascinating book which illustrates why philosophy, legal scholarship and law, although capable of sharing certain outlooks, must forever remain distinct.
Abstract EN: 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.
Abstract FR: En 1977, l'arrêt Duquet c. Ville de Ste-Agathe-des-Monts a réduit radicalement le formalisme qui entourait jusque-là au Québec l'octroi du jugement déclaratoire sur requête. Suite à Duquet, d'autres arrêts de la Cour suprême ont contribué à accentuer ce mouvement et, certainement en droit public, le recours au jugement déclaratoire est devenu une simple option, dont l'emploi ne devrait pas pouvoir influencer le sort d'un litige. Cette évolution doit être placée dans le contexte d'un abandon presque total des anciens recours qui compliquaient et rendaient pratiquement aléatoire notre droit administratif. Cependant, on doit remarquer une réticence, de la part de plusieurs juges, à accepter sans réserve les conséquences de Duquet. Le pouvoir d'annuler des lois ou des règlements fait parfois l'objet de restrictions. Les mots "intérêts immédiats", de l'article 453 du Code, reçoivent parfois une interprétation restrictive, et même l'absence d'une "difficulté réelle", dans un sens étroit et technique, peut présenter un danger. Ces tendances sont loin d'être universelles, mais elles peuvent avoir pour résultat d'engendrer chez les avocats une méfiance qui reléguerait l'article 453 à la dernière place parmi tous les recours, alors que le juge Pigeon, dans Duquet, avait souhaité qu'il soit "largement applicable". Le but de cette note est de démontrer qu'il n'existe aucune raison, qu'elle soit purement juridique ou pratique, défavoriser de nouvelles restrictions à l'octroi du jugement déclaratoire : Duquet devrait être accepté dans son sens le plus large.