The Potential Power of Section 36 of the Constitution Act, 1982

by Ian Peach

October 17, 2025

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On Thursday, October 2, the Centre for Constitutional Studies hosted a talk by Andrew Stobo Sniderman on the inadequacy of public services on First Nations reserves and the possibility that section 36 of the Constitution Act, 1982 could be used to challenge that inadequacy.[1] 

The background to Sniderman’s talk is that Canadian law has created a serious conundrum for First Nations individuals. Given the under-funding of on-reserve services, many decide that it is better for them to live in urban centres where they have access to adequate public services and opportunities for economic security. But in doing so, individuals are being separated from the families and cultural communities of the reserves with which they have ancestral connections.

As someone who has worked with urban Indigenous communities and frequently commented on this conundrum, I have some understanding of the harm that the federal government’s refusal to provide adequate public services on reserves, comparable to those available off reserves to non-Indigenous Canadians, has been doing to First Nations individuals, families, and communities.

The idea that section 36 could force the federal government to address this inadequacy is intriguing. Conventional wisdom is that section 36 is merely an aspirational statement. The claim is that, because section 36 states merely that governments are committed to providing people with equal opportunities, it does not create a legally binding obligation on governments to actually do anything specific. This understanding of the legal irrelevance of section 36 is reinforced, so the story goes, because the only specific obligation in section 36, in subsection 36(2), is that Canada is committed “to the principle” of making equalization payments to the provinces to allow them to provide their citizens reasonably comparable levels of public services at reasonably comparable levels of taxation. The claim is that a commitment to a principle is not the same as a legally enforceable obligation.

I have two questions about this conventional interpretation of section 36, though, that I hope you, dear reader, will think about. The first question is:

Why is a commitment to a principle not legally enforceable if that principle is given constitutional force by inclusion in the text of the Constitution? And, relatedly, what makes a “principle” merely aspirational and what makes aspirations legally unenforceable?

I think there is much room to challenge the conventional idea that the commitment to the principle of making equalization payments to allow provinces to provide reasonably comparable levels of public services at reasonably comparable levels of taxation places no legal constraints on the design of the federal equalization program, and may not even make the elimination of the program unconstitutional, in a legal sense.

Because subsection 36(2) speaks to a commitment of the federal government specifically to the provinces, though, it is not useful in bringing the power of the Constitution and the rule of law to bear on the unfair disadvantage wrought on reserve residents by the inadequate funding of public services on reserves. My other question, though, is both more powerful and could be directly applicable to the plight of reserve residents. I start from the observation that section 36(1) states that the federal and provincial governments are committed to certain sets of actions, not to a principle of undertaking certain sets of actions. Specifically, subsection 36(1)(c) states that the federal and provincial governments are committed to providing “essential public services of reasonable quality to all Canadians” (emphasis mine). Presumably, a reference to “all Canadians” includes First Nations people who live on reserves.

Section 36(1) begins by saying: “Without altering the legislative authority of Parliament or of the provincial legislatures,” in other words, without altering the constitutional division of powers between the federal and provincial governments. Since we also know that subsection 91(24) of the Constitution Act, 1867 states that the federal government has the jurisdiction over “Indians and Lands reserved for the Indians,” presumably it is the Government of Canada that is responsible for fulfilling the commitment in paragraph 36(1)(c) for residents of First Nations reserves.

My second question, then, is one that I cannot find a satisfactory answer to:

Why have the courts never been asked to enforce the section 36 commitment to providing essential public services of reasonable quality to all Canadians, specifically to First Nations people living on reserves, against the federal government?

I cannot see a reason why not. One could, certainly, make the argument that it is not the place of the courts to dictate governments’ budgetary expenditures to them, as this breaches the constitutional separation of powers between the branches of government. Yet, courts, in Canadian Charter of Rights and Freedoms decisions, say all the time that governments must not breach constitutionally protected rights unless they can show that their actions are “reasonable and demonstrably justified” under section 1 of the Charter.

As the well-established dialogue theory of Canadian Charter jurisprudence posits, the courts and the legislatures engage in a dialogue about what is and is not reasonable, given the protections afforded to individuals by the Charter. The courts have never said to governments, “You must do these specific things in order to be Charter-compliant.” The courts have, though, defined how the Charter limits the parameters of governments’ discretion. Why should the courts not, then, use section 36 to define the parameters within which the federal government must act to fulfil its commitment to providing essential public services of reasonably quality to First Nations people who live on reserves?

It may be that reasonable-quality public services available to all is a constitutional aspiration, but surely, if the federal government fails to make a demonstrable effort to achieve that aspiration, it is acting in dereliction of its duty. At that point, one would think that the courts can intervene to say something like:

While we will not dictate the specifics of what the Government of Canada must do to provide First Nations people who reside on reserve with essential public services of reasonable quality, the Government of Canada must be able to demonstrate that it is making a reasonable and demonstrably justifiable effort to fulfil that constitutional commitment, or we will find the government to be behaving unconstitutionally.

Such a decision is, in many ways, analogous to the constitutional dialogue that arises when the courts make decisions in Charter cases.

Thanks to Andrew Stobo Sniderman for raising this intriguing possibility. His thoughts raise a further, important question: Can we, as a democratic community that believes in the principle of constitutionalism and the rule of law and that aspires to protect minorities, accept as a legitimate source of law a Constitution that shies away from a reading of the words of the Constitution that can address a grave, obvious, and longstanding affront to basic justice for a minority within our society? I would suggest that it is worth a group of First Nations people giving such an argument a try to improve the quality of services available to them in their home communities; it just might work.

[1] Andrew’s lecture was based on his article, “Constitutional Silence, Section 36, and Public Services on Indian Reserves,” recently published in the University of Toronto Law Journal. See Andrew Stobo Sniderman, “Constitutional Silence, Section 36, and Public Services on Indian Reserves” (2025) 75:3 UTLJ 267.