Section 36(1)(a) of the Constitution Act, 1982 and the Architecture of Social Obligation
By Bernard F. Miller KC, ICD.D*1
Abstract
This article examines whether section 36(1)(a) of the Constitution Act, 1982, which commits Parliament and the provincial legislatures to promoting equal opportunities for the well-being of Canadians, constitutes a genuine constitutional value capable of shaping institutional design, policy architecture, and the legitimate reach of non-state actors in delivering social goods. Drawing on constitutional theory, comparative law, and public administration scholarship, the article argues that while section 36(1)(a) has not, at this point, been held to confer justiciable rights, it embeds a substantive constitutional commitment to social well-being that is normatively operative. The article further argues that community-based institutional forms, in particular the Community Interest Company model and its potential Canadian equivalents, are not merely policy conveniences but can be understood as instruments of constitutional purpose under this provision.
I. Introduction
Constitutional texts rarely speak in the language of social aspiration. Most constitutional instruments concern themselves with structure: the allocation of powers, the protection and recognition of rights, the limits of state authority. It is comparatively rare for a constitution to make an affirmative commitment to the material well-being of citizens, not merely what governments may not do, but what they are morally and institutionally bound to pursue.
Section 36(1)(a) of the Constitution Act, 1982 is one such provision. It states, as a matter of constitutional commitment, that Parliament and the legislatures, together with the Government of Canada and the provincial governments, are committed to “promoting equal opportunities for the well-being of Canadians.” This language is not accidental drafting. It is a deliberate constitutional inscription of a value — the value that Canadians, wherever they live and whatever their circumstances, are entitled to equal opportunity to flourish or in the preferred word of Aristotle, eudaimonia.
Yet section 36(1)(a) occupies an uncomfortable position in Canadian constitutional law. Courts have, to date, declined to treat it as justiciable. Academic commentary has often confined it to the fiscal architecture of equalization. And mainstream constitutional scholarship has rarely explored its implications for institutional design — for questions about how, at what level, and through what organizational forms these government commitments to equal opportunities for well-being should be pursued.
This article takes those questions seriously. It asks whether section 36(1)(a) constitutes a constitutional value in a meaningful sense, and if so, what follows from that characterization — not only for governments and public policy design, but for organic, proximate and bounded human communities and the broader ecosystem of institutions and organizations that provide social goods and build “social capital” or restore the relational conditions for community to thrive as a key pillar of Canadian society.
II. The Text and Its Context
A. The Provision in Full
Section 36 appears in Part III of the Constitution Act, 1982, under the heading “Equalization and Regional Disparities.” Section 36(1) reads:
Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, 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.
Section 36(2) then adds the equalization commitment specifically: Parliament and the Government of Canada are committed to the principle of making equalization payments to ensure provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.
Several features of this text are immediately significant. First, the commitment runs to both Parliament and the provincial legislatures; it is a commitment in the constitutional sense, binding both orders of government within their conferred constitutional powers. Second, the provision explicitly disclaims any alteration of legislative authority, which has been the primary basis on which courts have declined to treat it as directly enforceable. Third, the language of subsection (a) is notably broad: it speaks not of equalization payments, or public services, or any particular mechanism, but of “equal opportunities for the well-being of Canadians”: a formulation that is substantive, collective, and open to a large and liberal interpretation to adapt to new social realities, allowing the Constitution to grow within natural limits.
B. Legislative History and the Intent Behind the Text
The provision emerged from the constitutional negotiations of the late 1970s and early 1980s, reflecting the political compromise between provinces that feared federal dominance and federal negotiators who sought to embed a social contract within the new constitutional framework. The equalization principle had been a constitutional convention for decades before it was entrenched; section 36 gave it written constitutional status.
The breadth of subsection (a), relative to the more technical language of subsections (b) and (c), suggests a deliberate choice to anchor the equalization framework in a broader social philosophy. “Well-being” is not a term that appears elsewhere in the Constitution Act, 1982. Its use in section 36 signals an intention to describe an outcome, not merely a process but substantive collective societal conditions to enable human flourishing, not simply the absence of formal discrimination focused on the individual.
III. Is Section 36(1)(a) Justiciable?
A. The Orthodox View
The current and dominant view in Canadian constitutional law is that section 36 is not justiciable and that courts cannot enforce it as a legal obligation, whether against federal or provincial governments. Professor Peter Hogg, in his foundational treatise on Canadian constitutional law, characterised the commitments in section 36 as political and moral rather than legal. Courts have broadly followed this approach.
In Cape Breton (Regional Municipality) v. Nova Scotia, the court concluded that the pleadings did not allege material facts that would permit adjudication of a claim under section 36. The general thrust of the jurisprudence is that section 36 speaks in the language of commitment rather than obligation, and that the disclaimer in the opening words, “without altering the legislative authority”, signals that the provision was not intended to create new, enforceable duties, though those words could be narrowly interpreted to mean simply that sections 91 and 92 are unaffected.
B. The Limits of the Orthodox View
The justiciability question and the question of constitutional value are not the same question. A provision can be non-justiciable while nonetheless constituting a genuine constitutional value or a normative commitment that shapes the interpretation of other provisions, other legislation and informs the exercise of legislative discretion by governments and public servants, and provides a legitimate and legitimizing basis for political and institutional action.
This distinction is well-established in comparative constitutional law. The Irish Constitution contains directive principles of social policy that are expressly stated to be non-cognisable by courts, yet they have been treated as operative in informing constitutional interpretation. The Indian Constitution’s directive principles, while initially declared non-justiciable, have gradually been incorporated into the enforceable fundamental rights framework through creative judicial interpretation. In the UK, the Human Rights Act 1998 imports rights that constrain interpretation even where they do not create directly actionable claims.
The question, then, is not whether section 36(1)(a) can be enforced by litigation, but whether it is constitutionally operative as a value to guide legislative and executive branches of governments. In short, whether it does real normative work in the day-to-day work of those who develop public policy.
C. Constitutional Values in Canadian Jurisprudence
Canadian constitutional jurisprudence has developed a doctrine of unwritten constitutional principles that are capable of generating legal obligations even in the absence of explicit textual authority. In the Secession Reference, the Supreme Court identified democracy, federalism, the rule of law, constitutionalism, and the protection of minorities as foundational constitutional principles that underlie the written text and are capable of giving rise to enforceable obligations in appropriate circumstances.
The concept of a constitutional value describes a commitment expressed in the constitutional text that is treated as normatively operative even where it does not directly generate justiciable rights. Section 15 of the Charter has generated an equality jurisprudence built around the value of substantive equality, not merely formal non-discrimination. Section 7 has been interpreted in light of the value of human dignity. The values embedded in the Charter preamble have been used to inform statutory interpretation.
Section 36(1)(a) is not a Charter provision. But the methodology may be transferable: a textual commitment to a substantive social objective, equal opportunity for well-being, can operate as a constitutional value that shapes the space within which governments, pre-state and current communities and non-state actors operate, even if it does not create rights that individuals can enforce before courts.
IV. The Substance of the Value of Well-Being
A. What “Well-Being” Means
The phrase “well-being of Canadians” is distinctive. Most constitutional provisions concerned with equality speak in terms of rights, entitlements, or non-discrimination. Section 36(1)(a) speaks of well-being, a substantive concept that encompasses not merely the absence of deprivation but the presence of the conditions for a flourishing life, a good life shared as a common good.
The concept of well-being in political philosophy draws on several intellectual traditions including with Aristotle in Western philosophy and it is core to many non-Western ways of thinking from time immemorial.
In the capability approach developed by Amartya Sen and Martha Nussbaum, well-being is understood in terms of the real freedoms people have to live lives they have reason to value, a framework that includes not merely to income or resources but to whether people can actually exercise the capabilities that matter to human dignity. In communitarian thought, well-being is irreducibly social: it depends not only on individual circumstances but on the quality of the communities and relationships within which individuals are embedded.
The constitutional commitment to “equal opportunities for the well-being of Canadians” carries implications from many traditions that shape an inclusive, modern Canada. It suggests that the relevant benchmark is substantive, that equal opportunity means something more than removing legal barriers to participation. And it suggests that well-being has a social dimension that purely individual rights frameworks are ill-equipped to address on their own.
B. The “Equal Opportunities” Qualifier
The provision does not simply commit to “promoting well-being”, it commits to promoting “equal opportunities” for well-being. This qualifier is significant in two respects.
First, it affirms that the constitutional commitment is egalitarian: it is not sufficient for some Canadians to enjoy high levels of well-being if others are excluded. The commitment runs to the distribution of opportunity, not merely its aggregate level. This is a substantive equality commitment, not a formal one.
Second, the focus on “opportunities” rather than outcomes preserves space for pluralism and individual choice in how well-being is pursued. The constitutional commitment is not to a all-encompassing single standard measurement of flourishing, the way Simon Kuznets came up with a measure for GDP growth which became a proxy for a flourishing economy (despite Kuznets’s well articulated cautions[1]), but to ensuring that the conditions for pursuing a flourishing life are available to all Canadians on equal terms supported by multiple different measures or indicators of well being or quality of life. Measuring well-being and quality of life is a growing and increasingly sophisticated and targeted capability, readily available to assess progress on section 36 commitments.
C. The Regional Dimension
The placement of section 36(1)(a) within Part III, alongside the equalization commitment, gives the provision a pronounced spatial dimension. The problem the provision was designed to address is not primarily individual inequality but geographical and structural inequality; the fact that Canadians in different provinces, rural and urban localities and functional economic regions do not have equal access to the public goods and services and community social infrastructure, investment capital and relationships that support opportunities for well-being.
This regional framing is important for understanding what institutional forms the constitutional value might support. If the problem is that centralised provision of social goods regularly fails to reach all Canadians equally, particularly in rural, remote, historically or economically disadvantaged communities and in particular those decimated by Imperialism, then the value in section 36(1)(a) points not only toward intergovernmental fiscal transfers but toward the design of the delivery architecture itself: what organizations and institutions, at what level of governance or proximity to community, are best positioned to promote equal opportunities for well-being.
This takes on new significance if predictions of job destruction by Artificial Intelligence and robotics are anywhere close to what some forecast.
V. Subsidiarity, Community, and the Institutional Architecture of Well-Being
A. The Principle of Subsidiarity
Subsidiarity is the principle that social and political matters should be handled by the smallest or most local competent authority or associations. It is not an explicit feature of the Canadian constitutional text in the way it is, for example, in the Treaty on European Union. Yet the principle is not absent from Canadian constitutional discourse. The very structure of Canadian federalism reflects a subsidiarity logic: the division of powers assigns matters to the level of government best positioned to address them, and the recent development of asymmetrical federalism and municipal empowerment reflects ongoing negotiation about where that level lies.
The Charlottetown Accord, which would have introduced a more explicit subsidiarity principle into the Constitution, ultimately failed. But the value the Accord sought to express, that government should operate as close to the citizen as possible, remains a foundational principle in Canadian political philosophy, and it is, arguably, implicit in the constitutional commitment to “equal opportunities for the well-being of Canadians.”
If well-being is substantive, relational, and community-embedded, then the institutional architecture and policy designs best suited to promoting well-being are those that operate at the community level and work with the community in a responsive way based on feedback loops related to well-being. That is, they are responsive to the particular needs, capacities, and relationships that constitute well-being in specific places. Centralised provision is often poorly adapted to this task, not because it is incompetent (though sometimes it is) but because well-being is local and community-based in many of its dimensions.
B. The Role of Non-State Organizations
The history of social policy in Canada has always involved non-state actors, voluntary organizations, cooperatives, religious institutions, universities and colleges and increasingly, social enterprises, first as the true and often only source of social policy but, with the advent of the welfare state, as state agents in the delivery of social goods.
The welfare state in Canada has never been purely statist; it evolved into a hybrid in which public funding supported a diverse ecology of providers, however as we are witnessing, the limits of the welfare state have been exceeded with multiple areas of disintegration and backlash. In addition, the manner in which power and resources of the welfare state have been deployed has led to a hierarchical power imbalance and dysfunctional state-community relationship that has actually extracted resources from community and diminished equal opportunities for well-being of Canadians rather supporting and meeting the commitments of section 36.
The constitutional commitment to equal opportunities for well-being for all Canadians does not preclude this hybrid architecture. On the contrary, if the views I’ve expressed on subsidiarity are correct and well-being is best promoted at the community level then non-state actors operating within communities may be the instruments for pursuing the value that section 36(1)(a) embeds.
At this stage, what has become clear, however, is the current state-agent framing of the hybrid model is failing fast; both the state and the market have squeezed out community. Actual power and resources need to be shared with the community, not hoarded by the primary financial beneficiaries of shareholder capitalism (investors, fortunate entrepreneurs, CEO’s and senior executives of large enterprises) and the state through the tax system and then only divvied out to non-state actors with insufficient annual budget allocations determined based on the whims and political objectives of the party in power and subject to overwhelming monitoring and “accountability frameworks” which sap all of the vitality from many community based organizations.
These well-known shortcomings have significant implications for the design and architecture of public policy and social organization law in Canada. If community-based organizations can be understood as instruments of constitutional purpose and as vehicles through which the state’s commitment to equal opportunity for well-being is given local, responsive, and sustainable institutional form, then the legal framework and social, economic and tax policy that governs such organizations is not merely a matter of corporate law but of constitutional significance.
VI. Community Interest Companies as Instruments of Constitutional Purpose
A. The CIC Model
The Community Interest Company (CIC) is a corporate form created by the Companies (Audit, Investigations and Community Enterprise) Act 2004 in the United Kingdom. The model was transplanted to Nova Scotia with the coming into force of the Community Interest Companies Act in 2018. It is designed specifically for joint-stock companies that wish to achieve and contribute to community benefit: it requires a community interest test for incorporation, imposes an asset lock that prevents distributions above a regulated cap, and mandates annual community interest reporting.
The CIC model has attracted academic analysis as an instrument of social enterprise policy. J.S. Liptrap at the Centre for Business Research, University of Cambridge, has argued that the CIC emerged from welfare state politics, designed to “spin off” centralised public responsibility to non-state actors for implementing social welfare policy, a reading that situates the CIC within precisely the subsidiarity logic discussed above but carries with it many unresolved issues of power and access to resources. Alex Nicholls and colleagues have examined CICs through the lens of social entrepreneurship, situating them primarily within UK policy to create an enabling environment for social enterprise growth under the existing neo-liberal paradigm.
While the CIC model is growing in use in the UK with successes and lessons learned, its potential as an instrument for subsidiarity and promotion of equal opportunities for the well-being of all Canadians is almost completely unexplored.
B. CICs and Section 36(1)(a): The Constitutional Argument
The argument that Community Interest Companies can be understood as instruments of constitutional purpose under section 36(1)(a) rests on three distinct claims.
First, CICs are structurally aligned with the substantive content of the constitutional value. The community interest test ensures that a CIC exists to benefit a defined community, the community-embedded, relational understanding of well-being that the provision is argued to embody. The asset lock ensures that the value created by the enterprise is retained within the community rather than extracted by shareholders, preserving the conditions for ongoing community benefit. The reporting requirements create accountability for the delivery of community benefit over time.
Second, CICs operationalise subsidiarity in institutional form. They operate at the community level and are often governed by community stakeholders to be responsive to local needs. They are not instruments of centralised provision; they are instruments of community self-determination within a framework of public accountability. This makes them apt vehicles for the constitutional value on the argument that equal opportunities for well-being are best promoted by institutions that are embedded in the communities whose well-being is at stake.
Third, the CIC model addresses the structural failure that section 36(1)(a) was designed to remedy. The provision was inserted into the Constitution because centralised fiscal provision of equalization payments, federal transfers, provincial delivery of public services, under the prevailing political ethos around tax policy, have proven to be insufficient to ensure equal opportunities for well-being across the Canadian federation. CICs and their equivalents offer a complementary institutional architecture: not a replacement for public provision but a community-level infrastructure that can access resources, accumulate capital, seek non-state investors (including philanthropy) and restore community and create social value in ways that centralised, politically led institutions simply cannot.
C. Limits and Cautions
The constitutional argument must be stated with appropriate restraint and reserve with full recognition of the current limitations and barriers. Section 36(1)(a) does not require CICs or any particular institutional form. It does not in any way alleviate or displace the welfare state paradigm of centralised provision of social services. In fact, to the contrary it confirms that Parliament and the legislatures of the provinces and the governments and committed to promoting equal opportunities for well-being for all Canadians. The argument is normative and architectural, not prescriptive and enforceable. It presents an enabling, alternative policy approach and instrumental means by which governments, in true partnership with community might pursue one way of many to achieve these constitutional commitments. Rather than simply cutting funding as part of an austerity measure to respond to growing budget pressures, governments could re-allocate public capital to community, create a social financing regime and tax policy to encourage alternative forms of financing CIC’s and meet the constitutional commitment by policy rather than just spending more but never enough.
There are also substantive concerns about whether the CIC model, as implemented, can deliver on its promise. The UK NHS Confederation’s 2023 briefing on CICs in health and care in the United Kingdom found a mixed picture: genuine opportunities for community-responsive innovation alongside real challenges in financial sustainability, workforce development, and integration with statutory systems. Springer Nature’s comparative analysis of CICs alongside B Corps and benefit corporations raised questions about whether the CIC model can compete as a credible complement to mainstream corporate forms in a paradigm designed for and fully dominated by shareholder capitalism.
These are empirical questions, not constitutional ones. They bear on whether CICs are effective instruments of the constitutional value, not on whether they are constitutionally apt in principle. A constitutional value related to improving well-being does not guarantee that any particular institutional form designed to pursue it will succeed. We do know, however, the status quo will not.[2]
VII. Implications for Law and Policy
A. Statutory Interpretation
If section 36(1)(a) constitutes a constitutional value in the sense argued here, it should inform the interpretation of statutes that bear on the conditions for opportunities for equal opportunities for well-being.
Federal and provincial public finance laws and the approaches to government budgeting and finance and public sector accounting together with public service laws that distribute decision-making authorities should be assessed through a s.36(1)(a) lens[3]. Natural resources laws need to be assessed on the basis of whether the primary beneficiary of resources exploitation is the capital investor or the Canadians and the communities proximate to where the resources are extracted or converted to monetary value[4]. Tax law and social enterprise legislation and regimes for non-profit organizations should be assessed through this lens. Community benefit provisions and employment expectations in government frameworks for promoting economic development could assess contribution to opportunities for well-being, recognizing the future of jobs in a post- employment, proximity optional AI driven economy is a looming rupture to employment paradigms, such as they are, that emerged in the neo-liberal era and replaced the secure employment of the small business, the union, the trade association and the guild. The regulation of philanthropy and charitable organizations, and the legal framework for public procurement should all be interpreted, where the text permits, in a manner consistent with the constitutional commitment to equal opportunities for well-being.
This is not a novel methodological claim. The Supreme Court of Canada has consistently held that statutes should be interpreted in a manner consistent with the Constitution, and that constitutional values inform the purposive interpretation of legislation. What the argument of this article adds is that section 36(1)(a) is a source of such values not merely a fiscal provision but a substantive constitutional commitment that can shape the interpretation of a wide range of statutory regimes.
B. Policy Design and Fiscal Implications
For policymakers, the constitutional value in section 36(1)(a) provides a normative foundation for institutional innovation in economic, employment and social policy.
The use of CIC corporate forms in Canadian provinces can be understood not merely as a policy choice among equals but as a response to a constitutional imperative to create institutional architectures capable of promoting equal opportunities for well-being at the community level.
Rather than downloading to municipalities and merely shifting the public “fiscal burden”, the instrumentality of Community Interest Companies is a means to meet a constitutional commitment to promoting equal opportunities for well-being outside of the fiscal constraints of the annual budget process.
While the thrust of this argument might appeal to those versed in moral philosophy, accountants might like it too. There are possibilities for material fiscal, debt and deficit alleviating benefits, subject to public sector accounting treatment. This analysis presents an opportunity to situate capital, debt financing and fiscal resources, governance and financial responsibility outside the state (and its balance sheet) and achieve better outcomes with appropriate regulated safeguards established by legislation.[5]
This has implications for how such legislation is designed and justified. The asset lock, the community interest test, and the accountability requirements that characterise the CIC model are not arbitrary regulatory impositions; they are the institutional expression of the constitutional value of equal opportunities for well-being, ensuring that the enterprises created under such legislation genuinely serve the communities whose well-being is at stake.
C. The Gap in the Literature
The intersection of CIC corporate forms and the constitutional value of equal opportunities for well-being for all Canadians represents a genuine gap in the existing literature. Research on CICs has tended to treat them as instruments of social enterprise policy, situated within the discourse of social entrepreneurship and welfare state restructuring. Research on section 36(1)(a) has tended to focus on equalization and intergovernmental fiscal relations. Research on subsidiarity in the Canadian context has addressed federalism and devolution without attending to the role of non-state actors.
A synthesis of these three bodies of work — constitutional theory, social enterprise law, and public administration scholarship — is needed to develop a coherent account of what equal opportunities for well-being as a constitutional value requires institutionally. In addition, applied research exploring relational conditions needed to restore community as a key social pillar, along with and not beholden to the state and market can inform areas for further research. This article has attempted to sketch the architecture of such a synthesis focusing primarily on the constitutional law underpinning for this research, while acknowledging that the empirical and doctrinal work required to substantiate it remains largely to be done.
VIII. Conclusion
Section 36(1)(a) of the Constitution Act, 1982 commits Canadian governments to promoting equal opportunities for the well-being of all Canadians. It is not justiciable in the conventional sense. But it is not, for that reason, constitutionally inert. It embeds a substantive value, the value that all Canadians, wherever they live and from whatever background, should have equal access to the conditions for a flourishing life, that is available to be normatively operative in constitutional interpretation, policy design, and institutional architecture.
The argument of this article is that this constitutional value has implications that have not been sufficiently explored. In particular, it supports the development of community-based research including institutional forms as instruments through which the constitutional commitment to equal opportunities for well-being can be explored, given sustainable, responsive, and locally appropriate relational expression. Such forms are not merely policy conveniences; they are architecturally consistent with a constitutional value that demands both substantive equality and community-level relationships to restore community.
The Canada that section 36(1)(a) envisions is one in which equal opportunities for well-being are not merely a fiscal transfer from wealthier to poorer provinces, but a genuine condition of social life sustained by organizations, institutions and inclusive relations that are close to bounded communities, and structurally committed to their benefit. Making that vision institutionally real is a task for law, policy, and practice working together. The constitutional value points the direction; the design of the institutions that can pursue it remains a central challenge.
Endnotes:
[1] Kuznets warned that “the welfare of a nation can scarcely be inferred from a measure of national income”.
[2] U.S. beats Canada in latest world happiness rankings: U.S. beats Canada in latest world happiness rankings – National | Globalnews.ca
[3] See for example: New Zealand – Implementing the Wellbeing Budget: New Zealand – Implementing the Wellbeing Budget: Wellbeing Economy Alliance
[4] Climate policy and a “just transition” presents many opportunities to ensure communities are the primary beneficiaries of the value captured from turning water, the wind or sunlight into economic value. See James R.A. Miller, Path Dependency and the Politics of Renewable Energy in Sub-National Jurisdictions. (2026-forthcoming)
[5] There is some structural parallel to the Public Private Partnership model that came into vogue in the 1990’s where the desire was to put the financing costs of public infrastructure “off balance sheet” and in the private sector. P-3 policy was a neo-liberal motivated policy failure dreamed up by lawyers, accountants and financiers to benefit private investors and it did little to improve well-being but did a lot to increase inequality and had some limited effect of temporarily shifting public debt off current government balance sheets, leaving the mess for a much later government to clean up. In contrast, the dreaded, the “unintended consequence” of use of CICs to create equal opportunities for well-being could be improved fiscal positions of governments, especially provincial governments. Likewise, it could have benefits in solving the age-old problem of public sector productivity. As for the size of government, personnel needed to design and implement time and resources-heavy “accountability frameworks” for community-based organizations would become redundant. In many cases, their salaries exceed the amounts of the grants they are overseeing. Likewise, community-based organizations would likely be more productive if they only had to answer to their Boards and not the Boards and the government overseers.
Select Bibliography and ADDITIONAL Notes
* Bernard F. Miller KC ICD.D practiced law with McInnes Cooper in Halifax and Moncton from 1989 to 2017. Served in the Nova Scotia public service as Deputy Minister, Office of Planning & Priorities, Deputy Minister of Business and Deputy Minister of the Office of Strategy Management between 2014 and 2021. He was a part-time, Assistant Professor at Dalhousie University’s Schulich School of Law, and a Lecturer at the Dalhousie University, School for Resource and Environmental Studies and School for Public Administration. He also has taught Law for Business at Mount Saint Vincent University. He is currently Executive Chair at Restorative Change Lab CIC, a Nova Scotia Community Interest Company, and a member of the Canada-Nova Scotia Offshore Energy Regulator. The views expressed herein are his own.
1. Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 36(1)(a).
2. P.W. Hogg, Constitutional Law of Canada, 5th ed (Toronto: Carswell, 2007), §6.8. Professor Hogg characterised the section 36 commitments as having a “political and moral” rather than legal character.
3. Cape Breton (Regional Municipality) v Nova Scotia (Attorney General), 2009 NSCA 44. The court declined to adjudicate claims arising under section 36 for want of material facts capable of grounding a justiciable dispute.
4. Reference re Secession of Quebec, [1998] 2 SCR 217. The Supreme Court of Canada identified democracy, federalism, constitutionalism, the rule of law, and the protection of minorities as foundational unwritten constitutional principles capable of generating enforceable obligations.
5. A. Sen, Development as Freedom (Oxford: Oxford University Press, 1999); M.C. Nussbaum, Creating Capabilities: The Human Development Approach (Cambridge, MA: Belknap Press, 2011).
6. J.S. Liptrap, “Community Interest Companies and the Political Economy of the Welfare State” (2021), Centre for Business Research, University of Cambridge. Liptrap argues the CIC model was designed to devolve centralised public responsibility to non-state actors as a vehicle for social welfare delivery.
7. A. Nicholls et al., early empirical analysis of CIC reporting practices situating CICs within UK policy frameworks for social enterprise growth (Oxford: Skoll Centre for Social Entrepreneurship).
8. NHS Confederation, Community Interest Companies in Health and Care (London: NHS Confederation, 2023). Report based on interviews with CIC leaders examining opportunities, challenges, and the role of CICs in system transformation.
9. S. Ayres, “Devolution and Subsidiarity” (2025), City-REDI, University of Birmingham (ESRC-funded). Notes the UK’s exceptional degree of centralisation relative to global trends toward devolution.
10. N.W. Barber, “Subsidiarity and Democracy” in The United Kingdom Constitution (Oxford: Oxford Academic, 2021). Examines subsidiarity as an implicit principle in UK courts’ approach to devolution questions.
11. Comparative analysis of CICs, B Corps, and benefit corporations in Springer Nature comparative corporate law volume, examining the credibility of the CIC as a complement to mainstream corporate forms.
12. Companies (Audit, Investigations and Community Enterprise) Act 2004 (UK), c 27 (establishing the Community Interest Company).
