Section Thirty-four of the Canadian Charter of Rights and Freedoms


Section Thirty-four of the Canadian Charter of Rights and Freedoms

Section Thirty-four of the "Canadian Charter of Rights and Freedoms" is the last section of Canada's Charter of Rights, which is entrenched in the "Constitution Act, 1982". Section 34 provides guidance for the legal citation of the "Charter".

Under the heading "Citation," the section reads:

Function

Section 34, along with the "Constitution Act, 1982", came into force on April 17, 1982. According to the government of Canada, section 34's function "simply" relates to citation. The section clarifies that the first 34 sections of the "Constitution Act, 1982" may be collectively called the "Canadian Charter of Rights and Freedoms"," which is an "official name." [ [http://www.pch.gc.ca/progs/pdp-hrp/canada/guide/citation_e.cfm Guide to the Canadian Charter of Rights and Freedoms] . Human Rights Program. Canadian Heritage. URL accessed on December 12, 2006.] This would be the name of the English version. The French version of section 34 states "Titre de la présente partie: "Charte canadienne des droits et libertés"."

In 1982, constitutional scholar Peter Hogg suggested that the section also clarifies the size and scope of the "Charter." Only section 34 and the sections that come before it compose the "Charter". The next sections of the "Constitution Act, 1982", including section 35 (which affirms Aboriginal rights) and section 36 (which affirms equalization payments), are thus not Charter rights. This is significant, since section 1 of the "Constitution Act, 1982" allows for limits on "Charter" rights, so it cannot apply to sections 35 or 36. However, this also means that a "judicial remedy" under section 24 of the Act is not available for sections 35 or 36, since section 24 refers only to the "Charter". [Peter W. Hogg, "Canada Act 1982 Annotated". Toronto, Canada: The Carswell Company Limited, 1982, page 81.]

Discussion

Canadian poet George Elliott Clarke once analyzed section 34, calling it "bland legalese." He wrote it was "reassuring" because it was dull, not signalling fear nor excitement. Thus, it seemed to imply the "Charter of Rights" was not a radical constitutional change, despite the fact that it was potentially revolutionary for a constitutional monarchy. In considering the name "Canadian Charter of Rights and Freedoms," Clarke felt the first word, "Canadian," hinted at Canadian nationalism. He then compared this to the French Declaration of the Rights of Man and of the Citizen and the United States Bill of Rights, saying that those documents were written by men who had just emerged from conflict and still remembered it, and thus Canada could be duller. However, he noted there was some drama in the "Charter" in that it was written when there was a threat of Quebec separatism, and section 27 (multiculturalism), section 25 (Aboriginal rights), and section 15(2) (affirmative action) of the "Charter" could change the country. [George Elliott Clarke, " [http://www.collectionscanada.ca/rights-and-freedoms/023021-1200-e.html On 'This Part may be cited as the Canadian Charter of Rights and Freedoms,'] " "Building a Just Society: A Retrospective of Canadian Rights and Freedoms", Library and Archives Canada, 3 November 2006, URL accessed 29 December 2006.]

In 1994, the Canadian House of Commons debated changing the name of the "Canadian Charter of Rights and Freedoms" to the "Canadian Charter of Rights, Freedoms and Responsibilities". As Parliamentary Secretary Russell MacLellan pointed out, this would have to be done through a constitutional amendment, particularly to section 34, since section 34 "establishes the charter's title. The charter's title is thus part of the Constitution." MacLellan believed the amending formula needed would be the one requiring the support of seven provincial governments representing at least half of Canada's population. Edmonton Southwest MP Ian McClelland had suggested the change, believing it to be necessary because "I felt we were becoming a nation of entitlement." MacLellan replied that "The Canadian Charter of Rights and Freedoms is and aspires to be a statement by Canadians about the rights and freedoms which we as Canadians deeply value in our democratic society." MacLellan added that section 1 implied a need for responsibilities, so "It is not necessary to change the title of this charter to emphasize the integral relationship between the individual's rights and his or her responsibility to the rest of society." [Parliament of Canada, " [http://www2.parl.gc.ca/HousePublications/Publication.aspx?pub=hansard&mee=103&parl=35&ses=1&language=E#103RP1E.html Publications - October 4, 1994] ," URL accessed 26 December 2006.]

References


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