Constitutional Silence, Section 36, and Public Services on Indian Reserves

The Centre is excited to host a Zoom lecture by Andrew Stobo Sniderman, an SJD candidate at Harvard Law School and co-author of the acclaimed book, Valley of the Birdtail: An Indian Reserve, a White Town, and the Road to Reconciliation (along with Professor Douglas Sanderson). To register, please use the red button on the side of this page or go HERE.

Lecture Abstract

Canada’s belated legal reckoning with unequal public services on Indian reserves is only beginning. This article proceeds in two main parts. First, I address a puzzle: even though the problem of deficient services on reserves endured for decades – and, in many respects, endures still – Canadian courts have hardly addressed its constitutionality. This constitutional silence can appear surprising, even astonishing. Second, I suggest that the curiously neglected section 36 of the Constitution Act, 1982, which calls for "reasonably comparable services" and "essential public services of reasonable quality to all Canadians," should inform the constitutional conversation about unequal services on reserves. The exclusion of reserves from equalization, a principle enshrined in section 36, is a largely-overlooked legal omission that has enabled the problem to fester. Conceiving of section 36's components as "directive principles" – neither enforceable fundamental rights nor empty political aspirations – helps unlock new possibilities for judicial and political use, particularly in light of the treatment of directive principles in other countries. The language of section 36 has never been explicitly used by a Canadian judge as an interpretive aid. But this should change.