Section 36 of the Constitution Act, 1982 is a significant, if sometimes overlooked, constitutional provision with direct links to Canada’s economic and social rights obligations under international human rights law.^[1]  Section 36(1) affirms that:

Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to

(a)              promoting equal opportunities for the well-being of Canadians;

(b)             furthering economic development to reduce disparity in opportunities; and

(c)              providing essential public services of reasonable quality to all Canadians.

i) The Justiciability of Section 36

There has been ongoing debate about whether section 36 can be enforced by the courts, either as a ‘right’ to public services of reasonable quality, or simply as a justiciable government commitment to provide such services.

Lorne Sossin has argued that the use of the term ‘committed’ implies that section 36 was “intended to create justiciable obligations on the federal and provincial governments” although it “falls short of creating any mandatory obligation to provide a particular level of funding or type of benefit.”^[2]

The particular wording of the commitment in section 36(1)(c), in comparison to sections 36(1)(a) and (b), indicates a standard that is clearly amenable to judicial review.^[3]  The commitments set out in 36(1)(a) and (b) are framed in softer language, referring to “promoting equal opportunities” and “furthering economic development” whereas section 36(1)(c) refers to providing essential public services.^[4]

In Manitoba Keewatinowi Okimakanak Inc v Manitoba Hydro-Electric Board,^[5] the Manitoba Court of Appeal accepted that “a reasonable argument might be advanced that the section could possibly have been intended to create enforceable rights.”^[6]  However, in its decision in Canadian Bar Association v British Columbia, involving a Charter challenge to the inadequacy of provincial civil legal aid funding in the province, the British Columbia Court of Appeal found that there was an insufficient factual basis to consider a section 36 claim in that case.^[7]

In Cape Breton (Regional Municipality) v Nova Scotia,^[8] it was alleged that the province’s failure to spend equalization payments received from the federal government in a manner that would reduce regional economic disparity, constituted a violation of Nova Scotia’s obligations under section 36(1).  Like the B.C. Court of Appeal, the Nova Scotia Supreme Court concluded that the pleadings in the case did not allege material facts that would permit the court to adjudicate a claim under section 36. ^[9]

A similar issue regarding the justiciability of governmental commitments arose and was addressed by the Supreme Court of Canada in its decision in Finlay v Canada (Minister of Finance).^[10]  In that case the Court considered whether an individual could challenge a provincial government’s failure to comply with conditions of a cost-sharing agreement between the province and the federal government.  Under the Canada Assistance Plan Act^[11] federal contributions to provincial social assistance costs were conditional upon provincial compliance with a number of requirements, including that the level of assistance provided by the province be adequate to cover basic necessities.^[12]  The Supreme Court found in Finlay that the agreement between the two levels of government did not create a justiciable individual right to an adequate level of assistance.  However the Court held that an individual who was affected by the province’s failure to respect conditions of the cost-sharing agreement should be granted ‘public interest standing’ to take legal action to require provincial compliance with the terms of the agreement.

As Vincent Calderhead argues, the Supreme Court’s approach to federal-provincial cost-sharing agreements in Finlay is equally applicable to the enforcement of federal and provincial/territorial constitutional undertakings under section 36.^[13]

When federal or provincial/territorial governments rely on the complexities of Canadian federalism to abdicate responsibility in relation to homelessness or poverty in this manner, section 36 provides constitutional authority for rights claimants to insist that their rights should not be compromised by jurisdictional overlap or ambiguity.  The shared governmental responsibilities and commitments that are set out under section 36 should translate into a constitutional right to co-operative and coherent federal and provincial strategies, that are focused on affirming and realizing fundamental social rights as paramount over jurisdictional divides.^[14]