Constitutional silence, section 36, and public services on Indian reserves^†.

This article examines the longstanding issue of unequal public services on Canadian Indian reserves and the surprising constitutional silence surrounding it, focusing particularly on the underutilized potential of section 36 of the Constitution Act, 1982. Section 36 commits federal and provincial governments to providing "essential public services of reasonable quality to all Canadians" and to the principle of equalization payments to ensure comparable public services across provinces, yet it has never been judicially interpreted or applied to address service disparities on reserves. The article highlights how jurisdictional ambiguity, high litigation costs, and doctrinal hurdles have contributed to limited constitutional challenges, while recent human rights tribunal findings and class action settlements have begun to address discrimination in services such as policing, child welfare, and water access. It proposes that section 36, understood as a set of directive principles—binding but typically non-justiciable constitutional commitments—could serve as an important interpretive and political tool to frame and advance claims for equitable services on reserves, despite challenges related to justiciability, separation of powers, and the need to respect Indigenous self-determination in service delivery.