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Constitutional Silence, Section 36 and Public Services on Indian Reserves
Canada’s long-delayed legal reckoning with unequal public services on Indian reserves is only beginning. This article has two main parts. First, it examines why courts have largely avoided the constitutional questions raised by decades of inadequate services on reserves. That silence is striking, given the persistence and scale of the problem.

Second, it argues that Section 36 of the Constitution Act, 1982 should play a central role in that debate. Section 36 calls for “reasonably comparable services” and “essential public services of reasonable quality” for all Canadians. Yet Indian reserves have effectively been excluded from equalization, a gap that has allowed inequality to persist.

The article proposes treating Section 36 as a set of directive principles — not directly enforceable rights, but more than political promises — to guide courts and governments. Although no Canadian judge has yet used Section 36 this way, it offers a promising tool for addressing long-standing inequities.

*1L students are invited to bring their text to be signed by the author*