A Field Guide for Public Servants
By Bernard F. Miller KC, ICD.D | Restorative Change Lab
Section 36(1)(a) of the Constitution Act, 1982 commits Canadian governments to promoting equal opportunities for the well-being of Canadians. Courts cannot enforce it. But it is not for that reason constitutionally inert. This article argues that it is a genuine constitutional value and that achieving it requires restoring community as the third pillar of Canadian society.
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 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: to say not merely what governments may not do, but what they are purposefully 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 neither vacuous decoration nor accidental draftsmanship. It is a deliberate constitutional inscription of a value: the value that Canadians, wherever they live and whatever their circumstances, are entitled to equal opportunities for well-being.
Yet section 36(1)(a) occupies an uncomfortable position in Canadian constitutional law. Courts have, to date, declined to treat it as justiciable on the facts that have come before them. Academic commentary has often confined it to the fiscal architecture of equalization. Mainstream constitutional scholarship has rarely explored its implications for institutional design: for questions about how, at what level, and through what organisational forms the commitment to equal opportunities for the well-being of Canadians should be pursued.
This article takes those questions seriously. It argues that section 36(1)(a) is a genuine constitutional value normatively operative even without judicial enforcement and that operationalising it requires recognising community as the third pillar of Canadian society alongside market and state, restoring it through the subsidiarity principle, and giving it institutional expression through legal forms such as the Community Interest Company. For public servants working in the Westminster tradition, the article further argues that attending to this constitutional value is not merely permissible: it is a professional obligation.
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: 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, binding both orders of government. Second, the provision explicitly disclaims any alteration of legislative authority — which is 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 as to means.
B. Legislative History and Intent
The provision emerged from the constitutional negotiations of the late 1970s and early 1980s, reflecting a political compromise between provinces that feared federal dominance and federal negotiators who sought to embed a distinctly Canadian social contract within the new constitutional framework. 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, one concerned with intended outcomes as well as institutional means. “Well-being” does not appear elsewhere in the Constitution Act, 1982. Its use here signals an intention to describe a substantive condition of human flourishing, what Aristotle called eudaimonia, not merely the absence of formal discrimination or the provision of fiscal transfers for equalization.
III. Is Section 36(1)(a) Justiciable?
A. The Orthodox View
The prevailing view in Canadian constitutional law is that section 36 is not justiciable: courts cannot enforce it as a legal obligation on the basis of the facts that have so far come before them. Professor Peter Hogg characterised the commitments in section 36 as political and moral rather than legal. In Cape Breton (Regional Municipality) v Nova Scotia (Attorney General), 2009 NSCA 44, the Court of Appeal concluded that the pleadings did not allege material facts capable of grounding a justiciable dispute under section 36, and noted that any claim the provision might support would run between governments rather than be actionable by a municipality. The prevailing judicial tendency treats section 36 as speaking in the language of commitment rather than enforceable social obligation a tendency reinforced by the provision’s drafting, which focuses attention on the equalization and essential services commitments in subsections (1)(c) and (2) rather than on the broader well-being commitment in subsection (1)(a).
This orthodox view received further consideration in St Theresa Point First Nation v Canada (Attorney General), 2025 FC 1926, where Justice Favel expressly found that section 36 was not engaged in a class action concerning systemic on-reserve housing deficits. The court characterised section 36 as addressing the equalization relationship between the federal government and the provinces rather than generating obligations running directly to First Nations communities. Importantly, the section 36 argument was the only ground on which the plaintiffs did not succeed at Stage I: all other claims fiduciary duty, duty of care, and Charter sections 7, 15, 2(a), and 2(c) were answered in the affirmative.
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: a normative commitment that shapes the interpretation of other legislative provisions, informs legislative discretion and constitutional objectives for executive action, and provides a legitimate constitutional basis for political and institutional initiative. This distinction is well-established in comparative constitutional law. The Irish Constitution contains directive principles of social policy that are non-cognisable by courts yet operative in constitutional interpretation. India’s directive principles, initially non-justiciable, have been progressively incorporated into the enforceable fundamental rights framework. The question is not whether section 36(1)(a) can be enforced by litigation, but whether it is constitutionally operative whether it does real normative work.
C. Constitutional Values in Canadian Jurisprudence
In the Secession Reference, the Supreme Court of Canada identified democracy, federalism, the rule of law, constitutionalism, and the protection of minorities as foundational constitutional principles capable of generating enforceable obligations even in the absence of explicit textual authority. A constitutional value is related but distinct: it describes a commitment expressed in the constitutional text that is normatively operative even where it does not directly generate justiciable rights.
Section 36(1)(a) is not a Charter provision. But the methodology is transferable: a textual commitment to “equal opportunities for the well-being of Canadians” can operate as a constitutional value that shapes the space within which governments and non-state actors operate, even if it does not create rights that individuals can enforce before courts.
IV. The Substance of the Value
A. What “Well-Being” Means
The phrase “well-being of Canadians” is distinctive in its register. Most constitutional provisions concerned with equality speak in terms of rights, entitlements, or non-discrimination. Section 36(1)(a) speaks of well-being — a positive and substantive concept that encompasses not merely the absence of deprivation but the presence of the conditions for a flourishing life.
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 attends 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 and through which they experience their lives.
The constitutional commitment to “equal opportunities for the well-being of Canadians” carries implications from both traditions. The relevant benchmark is substantive, not merely financial, and not reducible to aggregate measures such as GDP per capita. Well-being has a relational and social dimension that formal individual rights frameworks are ill-equipped to address alone.
B. The “Equal Opportunities” Qualifier
The commitment is egalitarian in its orientation toward opportunity: it is not sufficient for some Canadians to enjoy high levels of well-being if others are systematically excluded. The commitment runs to the distribution of opportunity, not merely its aggregate level. At the same time, the focus on “opportunities” rather than outcomes preserves space for pluralism and individual choice. The constitutional commitment is not to a uniform standard of flourishing but to ensuring that equal opportunities for the well-being of all Canadians are available on equal terms.
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 and regions do not have equal access to the conditions, public goods, and services that support well-being. This points not only toward intergovernmental fiscal transfers but toward the design of delivery mechanisms themselves: what organisations, at what level of governance, are best positioned to promote equal opportunities for the well-being of Canadians in each community.
V. Subsidiarity, Community, and the Institutional Architecture of Well-Being
A. The Principle of Subsidiarity
Subsidiarity, the principle that social and political matters should be handled by the smallest or most local competent authority, is not explicit in the Canadian constitutional text in the way it is in the Treaty on European Union. Yet the very structure of Canadian federalism reflects a subsidiarity logic. The Charlottetown Accord, which would have introduced a more explicit subsidiarity principle into the Constitution, ultimately failed; but the value it sought to express, following extensive consultation with Canadians, was that government should operate as close to the citizen as possible, and this remains a live principle in Canadian political philosophy.
If well-being is substantive, relational, and community-embedded, then the institutional architecture best suited to promoting equal opportunities for the well-being of Canadians must operate at the community level, responsive to the particular needs, capacities, and relationships that constitute well-being in specific places where people live, work, and gather. Centralised provision is often poorly adapted to this task, not because it is incompetent but because well-being is proximate and local in many of its dimensions and varies between and within communities and regions.
B. The Role of Non-State Actors
Section 36(1)(a) runs, in terms, to governments. However, the history of social policy in Canada has always involved non-state actors, such as voluntary organisations, cooperatives, religious institutions, and social enterprises, as partners in the delivery of social goods and in addressing community conditions. The welfare state, as it developed in Canada, was never purely statist; it was always a hybrid in which public funding supported a diverse ecology of community-based providers. If well-being is best promoted at the community level, then non-state actors operating within communities may be constitutionally appropriate instruments for pursuing equal opportunities for the well-being of Canadians, as section 36(1)(a) commits. The legal framework that governs such organisations is not merely a matter of corporate law but of constitutional significance, a point addressed directly in Section VI below.
VI. The Three Pillars of Society and the Case for Restorative Communities
A. So What? The Problem with Two Pillars
Constitutional values do not generate policy by themselves. Between a provision of the Constitution Act, 1982, and a government program designed to give it effect lies a complex institutional process. Understanding how section 36(1)(a) might move from constitutional text to actual policy requires a clear account of the structural problem the provision was designed to address and an honest assessment of why the institutional responses deployed to date have fallen short.
The argument of this section is that the constitutional commitment to equal opportunities for the well-being of Canadians cannot be honoured within a framework that recognises only two institutional pillars: the market and the state. Securing equal opportunities for well-being requires a third pillar, the proximate community, and the restoration of community to a significant and active role in the institutional make-up of Canadian society is both the substantive implication of the constitutional commitment and the practical precondition for its fulfilment.
B. The Three Pillars: Market, State, and Community
Modern liberal societies organise collective life through three distinct institutional pillars. The market coordinates through price signals and voluntary exchange, generating efficiency and innovation but not belonging, solidarity, or equality. The state coordinates through law, regulation, and public authority, providing the institutional infrastructure of rights, public services, and redistributive transfers, but operating at a scale and through a logic that is inherently centralist and impersonal. Community, here called the third pillar, coordinates through relationships of trust, mutual obligation, shared identity, and local knowledge, generating precisely the conditions for well-being that neither market nor state can produce from within their own logics. This trinity of social pillars has deep intellectual roots: subsidiarity theory in Catholic social teaching, the civic republican tradition, communitarianism, and contemporary political economy. The principle of subsidiarity is its organising logic: social and political functions should be performed by the smallest, most local institution capable of performing them adequately. On the subsidiarity principle, the relationship between state and community is not one of competition or substitution; it is one of structured complementarity, in which each pillar contributes what it is best positioned to provide.
The Three Pillars and Subsidiarity
Market: coordinates through price and exchange; produces efficiency but not belonging. State: coordinates through law and authority; provides infrastructure and redistribution but not solidarity or local agency. Community: coordinates through trust, mutual obligation, and local knowledge; produces the relational conditions within which well-being is actually experienced. Subsidiarity: the principle that each function should be performed by the institution closest to those it affects, with higher-order institutions in a supporting rather than substituting role.
C. The Displacement of Community: How the Welfare State Overreached
Raghuram Rajan, in The Third Pillar: How Markets and the State Leave the Community Behind (Penguin Press, 2019), provides the most analytically powerful account of how the three-pillar balance broke down. Rajan argues that the twentieth century was characterised by a progressive displacement of the community pillar by the combined expansion of markets and the state. The welfare state, which emerged as a response to the acute social dislocations of industrialisation and urbanisation, stepped into the institutional space that weakened communities had previously occupied. It provided income support, health care, education, and social insurance, all things that communities had previously organised through local institutions and networks of mutual aid. This substitution was, in Rajan’s account, simultaneously necessary and corrosive.
Necessary, because the welfare state addressed genuine suffering that weakened communities could no longer relieve on their own. Corrosive, because the welfare state’s logic of centralised delivery further undermined the community institutions it displaced, accelerating a cycle of dependency and disengagement that the welfare state’s own programs were structurally incapable of reversing. The communities the welfare state was designed to serve became, progressively, communities that were served, recipients of transfers and services rather than active agents in the organisation of their own collective life. The result is the structural imbalance that characterises contemporary Western societies: strong markets and strong states operating in a space from which community has been progressively evacuated. The consequences are visible in the social pathologies: isolation, distrust, populist disaffection, and community fragmentation that no amount of market growth or welfare spending has been able to reverse, because those pathologies are not primarily economic or fiscal in character. They are relational. They are the symptoms of a society operating on two pillars when it needs three.
Rajan’s Diagnosis and Section 36(1)(a)
The persistent gap between the constitutional commitment to equal opportunities for the well-being of Canadians and the experience of structurally disadvantaged communities is not primarily a fiscal problem. On Rajan’s analysis, it reflects the structural displacement of the community pillar: the welfare state has delivered transfers and services, but through a centralised logic that further weakened the community institutions through which equal opportunities for well-being must ultimately be experienced. More welfare spending will not close this gap. Restoring community to an active institutional role on a subsidiarity basis is what the constitutional commitment requires.
D. The Efficiency Paradigm and the Analytical Displacement of Equality
The structural displacement of community has been reinforced by an intellectual displacement of equality in the analytical tools of the state. Elizabeth Popp Berman, in Thinking Like an Economist: How Efficiency Replaced Equality in US Public Policy (Princeton University Press, 2022), traces the penetration of the efficiency paradigm derived from welfare economics and cost-benefit analysis into policymaking from the 1960s onward. Her central claim is that this process was not politically neutral: by installing efficiency as the primary criterion of policy evaluation, the economic style of reasoning systematically marginalised the distributional and egalitarian objectives that had previously animated social policy.
Berman’s analysis is directed at the United States, but its implications extend directly to Canada. Canadian public policy developed as an academic discipline in parallel with its American counterpart and borrowed heavily from the same schools of public policy in which economic analysis had become the dominant evaluative frame. The dynamics she describes are recognisable features of Canadian federal and provincial policymaking: the rise of the Department of Finance and/or the Treasury Board as the hegemonic central agency, the progressive institutionalisation of cost-benefit analysis across government, and the systematic displacement of equity considerations by efficiency criteria.
The economic style of reasoning does not ask whether a policy promotes equal opportunities for the well-being of Canadians or restores community capacity; it asks whether aggregate benefits exceed aggregate costs. These are not the same question, and the differences between them are constitutionally significant. The constitutional commitment to equal opportunities for the well-being of Canadians is precisely the kind of objective that economic reasoning is structurally ill-equipped to serve: it is irreducibly distributional, not amenable to simple cost-benefit analysis, and focused on relational and community-level outcomes that resist quantification. A public service trained to think like economists will not naturally attend to it not because it is indifferent to well-being, but because the analytical tools it has been given make the constitutional commitment effectively invisible. Economic thinking is not value-free, yet it has come to be treated as a legitimate basis for “neutral” public policy recommendations to political decision-makers. The constitutional value of equal opportunities for the well-being of all Canadians is, on the argument advanced here, a constitutionally more legitimate evaluative frame for the professional public service — because, unlike economic efficiency, it is a true constitutional commitment of Parliament, the provincial legislatures, and both orders of government.
E. Restorative Communities: The Concept and Its Constitutional Grounding
The arguments of Rajan and Berman converge on a single diagnostic conclusion: the institutional architecture of modern liberal governance has progressively marginalised the community pillar, and neither market growth nor welfare state expansion can substitute for what community uniquely provides. The remedy is not the dismantling of the state or the welfare state; it is the restoration of community to a significant and active role in the institutional framework of society on a subsidiarity basis, with the state and market in supporting rather than substituting roles.
The concept of restorative communities captures this normative orientation. It is not merely a policy preference for localism or devolution, though it entails both. It is a substantive claim about what a just and well-functioning society requires: that the relational fabric of community, the networks of trust, mutual obligation, local knowledge, and shared purpose that generate the conditions for well-being must be actively restored and sustained, not merely tolerated as a residual after markets and states have done their work.
Section 36(1)(a) provides the constitutional grounding for this concept. Its commitment to equal opportunities for the well-being of Canadians is a constitutional expression of precisely the restorative communities imperative: the recognition that well-being is substantive, relational, and community-embedded, and that the state, in its legislative and executive functions, is constitutionally obligated to pursue it through institutional arrangements that restore and sustain, rather than displace, the community pillar.
Restorative communities is not a slogan. It is a constitutional imperative: the recognition that equal opportunities for the well-being of Canadians require the active restoration of community as the third pillar of Canadian society, sustained by law, supported by the state, and grounded in the principle of subsidiarity.
F. An Illustration: The Community Interest Company as an Instrument of Community Restoration
The Community Interest Company model takes on a constitutional significance when viewed through the three-pillar and restorative communities framework. The CIC is not just a corporate form of social enterprise convenience; it is an institutional instrument for giving the community pillar durable, legally protected, organisationally capable expression.
The asset lock ensures that value generated within the community remains within it — preventing the market pillar’s logic of private extraction from colonising a community institution. The community interest test ensures that the organisation’s purposes are defined by community benefit, not the preferences of remote shareholders or a distant bureaucracy. The accountability and reporting requirements ensure the organisation remains genuinely answerable to the community it serves. The CIC is, in the vocabulary of this article, a restorative community institution: designed to strengthen the community pillar in a way that is legally durable and publicly accountable.
But the CIC model represents something more fundamental than a better delivery vehicle for social services. It embodies a different relationship between community and state altogether — one in which the community institution is not subservient to government direction, not dependent on the annual budget cycle, and not subject to the hierarchical accountability frameworks that make genuine community agency impossible. The conventional non-profit operating as an agent of the state, merely implementing government programs under contract, accountable upward to the funder rather than outward to the community, vulnerable to the unpredictability of fiscal and electoral cycles — is not a community institution in any meaningful sense. It is a state instrument in community clothing.
This distinction matters enormously in practice. The annual budget cycle imposes a short-termism on community organisations that is structurally incompatible with the long-term relational work that community restoration requires. Accountability frameworks designed for state agents, including reporting requirements, compliance obligations, and performance metrics calibrated to government priorities, crowd out the local knowledge, relational judgment, and community responsiveness that are the community pillar’s distinctive contribution. Hierarchical oversight substitutes the state’s definition of community need for the community’s own. And the unpredictability of fiscal and electoral cycles and the ever-present risk that a funding program will be restructured, redirected, or cancelled with the next budget or the next government makes it impossible for community institutions to plan, invest, and sustain the long-term commitments that restorative work demands. The status quo, on this analysis, is not merely suboptimal. It is structurally unsustainable as a vehicle for equal opportunities for the well-being of Canadians.
The CIC model addresses each of these pathologies at the level of corporate architecture. The asset lock creates structural permanence; community assets cannot be redirected by a funder’s change of priorities or a government’s change of heart. The community interest test anchors purpose in community benefit, not governmental convenience. Governance by community stakeholders replaces upward accountability to the state with outward accountability to the people the organisation serves. And the CIC’s capacity to generate revenue through commercial activity provides a degree of financial independence from the annual budget cycle that no grant-dependent non-profit can achieve. None of this makes the CIC independent of all external relationships; it operates within a legal framework, may receive public funding, and is publicly accountable through its reporting obligations. But it is accountable in a fundamentally different way: to its community, through transparent reporting, rather than to its funder, through compliance with program conditions.
G. Community Interest Companies as Instruments of Constitutional Purpose
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 imported to Nova Scotia, the first jurisdiction in North America to adopt it, in 2012 with the enactment of the Community Interest Companies Act and became operational in June 2015 when Cabinet passed regulations. The Nova Scotia CIC is designed for enterprises that wish to undertake activities for 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.
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. That account is accurate as far as it goes, but the argument of this article goes further. The CIC’s most important characteristic is not that it provides an alternative delivery mechanism for state objectives. It is that it provides a legal form within which communities can pursue their own definition of well-being, with structural protection against capture by either market or state logic. The new relationship that the restorative communities imperative demands is not between the state and its non-profit agents; it is between the state and genuinely autonomous community institutions whose purposes, governance, and assets belong to the community.
The Constitutional Argument
The argument that Nova Scotia CICs can be understood as instruments of constitutional purpose under section 36(1)(a) rests on three claims. First, CICs are structurally aligned with the substantive content of the constitutional commitment to equal opportunities for the well-being of Canadians: the community interest test ensures that a CIC exists to benefit a defined community; the asset lock ensures that value created within the community remains within it; 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, are governed by community stakeholders, and are instruments of community self-determination within a framework of public accountability. Third, and critically, the CIC model is the institutional response to the structural unsustainability of the status quo: it does not merely supplement the existing architecture of state-directed delivery; it provides an alternative to it, one capable of surviving electoral cycles, resisting bureaucratic capture, and sustaining the long-term relational commitments that equal well-being requires.
Limits and Cautions
The constitutional argument must be stated with appropriate modesty. Section 36(1)(a) does not require CICs or any particular institutional form. It does not constitutionally displace centralised provision. The NHS Confederation’s 2023 briefing on CICs in health and care found genuine opportunities for community-responsive innovation alongside real challenges in financial sustainability and integration with statutory systems. These are empirical questions, not constitutional ones. A constitutional value does not guarantee that any particular institutional form designed to pursue it will succeed. And the promise of community autonomy can be undermined in practice by funding dependency — a CIC that is wholly reliant on government contracts for its revenue is no more independent of the state’s priorities than a conventional non-profit. Genuine community autonomy requires diversified revenue, capable governance, and a legal architecture that protects community assets over time. The CIC model provides the architecture; the community restoration agenda must also build the capacity. CIC’s are presented here to illustrate that path dependence of existing systems can limit the range of options for creating equal opportunities for well-being of all Canadians and restoring community as a key pillar of society and social well-being. Perhaps a more significant point is that the professional public service can and should look to section 36 as creating a normative value to which the governments they serve are constitutionally committed.
VII. Why Section 36(1)(a) Should Matter to Public Servants
A. The Westminster Public Service and Its Constitutional Obligations
Joseph Heath, in The Machinery of Government: Public Administration and the Liberal State (Oxford University Press, 2020), develops what he calls the normativity thesis: the claim that the bureaucratic state is not merely an execution mechanism but is embedded in a distinctive moral framework derived from liberal political philosophy. Public servants are not simply agents of the elected government; they are participants in an institutional order with its own normative logic and its own standards of conduct that cannot be fully specified by the hierarchy of ministerial command.
In this paper, it is asserted Section 36(1)(a) is not an optional reference point for public servants working on public policy. It is a constitutional expression of what Parliament, the provincial legislatures and the two levels of executive government have committed to pursue. The public servant who considers the constitutional commitment to equal opportunities for the well-being of Canadians in developing policy advice is not exceeding their institutional role; they are fulfilling it. Heath identifies what he calls the legalistic disposition of modern public administration, the tendency to attend primarily to formal legal obligations and to treat constitutional provisions that generate no enforceable duties as lying outside the domain of administrative concern. That disposition is not neutrality. It is institutional abdication.
B. Non-Partisanship and Constitutional Values: The Compatibility Thesis
A potential objection must be addressed directly. The principle of non-partisanship might seem to require that public servants abstain from engagement with the substantive content of constitutional commitments, lest such engagement shade into advocacy for particular political positions.
Heath’s analysis dissolves this objection. He distinguishes sharply between two senses of neutrality. In the first sense, the sense the non-partisanship principle properly requires the public service is neutral between political parties. In the second sense, which Heath rejects as both incoherent and contrary to the purposes of public administration, the public service would be neutral between the foundational values of the liberal state itself, treating the constitutional commitments of the order it serves as matters of mere political preference.
Constitutional values are not partisan values. A public servant who considers section 36(1)(a) in the development of policy advice, one who asks whether a proposed program is apt to promote equal opportunities for the well-being of Canadians and restore community capacity, is not advocating for any party’s position. They are ensuring that the advice they give is oriented toward a commitment that all parties have accepted.
The Compatibility Thesis (with Heath)
Non-partisanship means being party-free, not value-free. Attending to the constitutional commitment to equal opportunities for the well-being of Canadians, and to the restorative communities imperative it implies, is an act of constitutional fidelity. A public service that treats this commitment as a matter of mere political preference has confused the two senses of neutrality and failed the deeper obligation that non-partisanship serves.
C. The Principal-Agent Problem and the Constitutional Dimension of Public Service
Heath’s critique of the principal-agent model of Westminster accountability is a further resource. The simple principal-agent account holds that ministers are the principals, public servants are the agents, and accountability runs upward through the chain of command to Parliament. Heath argues that this account is both descriptively and normatively inadequate: the obligations of the public servant cannot be fully captured by the obligation to execute ministerial will. The public servant serves the Crown, and the Crown is constitutionally bound.
The public servant who asks, in developing a policy option, whether the proposal is apt to promote equal opportunities for the well-being of Canadians and restore community capacity is not acting beyond their role; they are acting within it — fulfilling the constitutional dimension of the public servant’s agency that the simple principal-agent model conceals.
D. Institutional Reform, Not Individual Discretion
Heath’s defence of rule-following as morally foundational to administrative legitimacy has an important implication for the activation strategy advanced in Section VIII. The constitutional value cannot be activated by individual public servants exercising personal discretion on behalf of the restorative communities’ agenda. Activation must be institutional: it must proceed through changes to the rules, frameworks, and analytical standards that govern the policy process, so that attending to the commitment to equal opportunities for the well-being of Canadians is built into the normal operation of the machinery of government rather than depending on the sympathies of sympathetic individuals.
E. The Practical Stakes: What the Efficiency Paradigm Costs
Berman’s account of the efficiency paradigm converges with Heath’s normativity thesis to explain the practical stakes of institutional neglect of section 36(1)(a). Three distortions follow when the constitutional commitment is absent from the analytical frame.
First, geographical and community-level disparities are systematically underweighted. Policy analysis conducted within an efficiency frame will fail to see that the distribution of the conditions for well-being across communities is a first-order policy problem, not a residual. Second, institutional monoculture persists: policy advice defaults to forms that fit within the market and state pillars, privatisation on one side, centralised public provision on the other, while community-based institutional forms remain analytically invisible. Third, the structural government failure, that is, the persistent mismatch between centralised institutional tools and the community-level conditions for securing equal opportunities for the well-being of Canadians, goes undiagnosed and unremedied.
VIII. Activating the Constitutional Value: Recommendations Grounded in Subsidiarity
The restorative communities framework generates an activation strategy with a clear organising principle: subsidiarity. Policy design and implementation should be pushed to the institutional level closest to community, the level at which local knowledge, relational trust, and community agency can be brought to bear on securing equal opportunities for the well-being of Canadians. Higher-order institutions have a supporting and enabling role, not a substituting one. The eight recommendations that follow are organised around this principle and addressed to the professional public service.
A. Analytical and Institutional
R1. Develop a Section 36(1)(a) Policy Lens Grounded in Subsidiarity
The most direct mechanism is an analytical lens — a structured set of questions applied when developing policy options for ministerial consideration. The lens would ask, for each relevant policy initiative:
- Does this policy strengthen community capacity for self-organisation, or does it substitute centralised delivery for community agency?
- Is responsibility located at the most local institutional level capable of discharging it adequately, consistent with the subsidiarity principle?
- How are benefits and burdens distributed across communities with different starting points and levels of community capacity?
- Are community-based delivery architectures — CIC-equivalent organisations, social enterprises, cooperatives, Indigenous community institutions — considered as options on equal footing with direct public provision?
- Does this policy address or perpetuate the structural displacement of the community pillar that Rajan identifies as the underlying cause of persistent disparities in opportunities for well-being?
- What mechanisms exist for communities to participate in the design, governance, and evaluation of programs intended to promote equal opportunities for their well-being?
The Privy Council Office/Executive Council Offices and federal and provincial Treasury Board Secretariat are likely the appropriate central agencies to develop and disseminate this lens as a professional standard.
R2. Establish a Well-Being Baseline Reporting Requirement
Guidance should be created to require that Memoranda to Cabinet and Treasury Board submissions addressing community capacity and include a section analysing the expected effect on well-being indicators with particular attention to distributional effects across communities and regions, and to the proposal’s implications for community capacity and self-organisation. The measurement framework must explicitly incorporate community-level indicators of social cohesion, trust, local institutional capacity, and community participation alongside economic and service-access indicators.
C. Capacity-Building and Cultural
R3. Invest in Public Service Literacy on Constitutional Values and the Three-Pillar Framework
Canadian Universities with Schools for Public Policy should develop a programs for constitutional understanding for senior public servants covering section 36(1)(a), the subsidiarity principle, the three-pillar framework, and the restorative communities concept. Heath’s account of the normativity of public administration, Rajan’s three-pillar diagnosis, and Berman’s analysis of the efficiency paradigm would together provide the theoretical foundation for a genuinely different analytical approach to policy development on the constitutional commitment to equal opportunities for the well-being of Canadians.
R4. Embed Subsidiarity in Federal-Provincial and Federal-Indigenous Program Design
Policy guidelines should require explicit subsidiarity analysis: a demonstration that the proposed delivery mechanisms locate responsibility at the most local institutional level capable of discharging it adequately, and that community-based organisations, including Community Interest Companies, other social enterprises, and Indigenous community organisations have been considered as delivery partners, not as agents of the state.
IX. Tensions, Objections, and Limits
A. The Risk of Constitutional and Ideological Capture
The restorative communities framework is not immune to capture. Community restoration can be invoked by political actors across the ideological spectrum: by those who favour devolution as a means of shrinking the state, and by those who favour community empowerment as a means of deepening democracy. The constitutional value does not adjudicate between these orientations; it establishes the standard: equal opportunities for the well-being of all Canadians against which any institutional arrangement must be assessed. The safeguard is procedural: analytical frameworks must be developed through transparent, deliberative processes; expressed as questions rather than conclusions; and subject to periodic review.
There is also a risk specific to the subsidiarity and community restoration agenda: that the rhetoric of community empowerment is used to justify the withdrawal of state support from communities that lack the capacity to fill the gap. Subsidiarity, properly understood, is not a licence for state abandonment; it is a principle of structured complementarity. The state’s supporting and enabling role is not optional; it is constitutionally obligated by section 36(1)(a) itself.
B. Federal-Provincial Complexity
Section 36(1)(a) runs to both Parliament and the provincial legislatures. The recommendations above focus primarily on the federal public service. But the constitutional commitment is shared, and the delivery of social goods in Canada is predominantly a provincial responsibility. The recommendations should be understood as a first step in a federal-provincial conversation.
C. The Limits of Policy Advice
The recommendations in this article are, ultimately, advice about advice. A public service that attends scrupulously to section 36(1)(a) may still find that ministers choose options that are poorly suited to the constitutional commitment. The constitutional value cannot compel any particular decision. What it can do and what the recommendations above are designed to facilitate ensure that the commitment to equal opportunities for the well-being of Canadians is present in the analytical frame, that ministers are advised of its implications for the restorative communities agenda, and that the long-term interests of the Canadian constitutional order are consistently represented in the policy process. In the Westminster model, that is the contribution that the professional public service is uniquely positioned and constitutionally obligated to make.
X. Synthesis: Section 36(1)(a), Restorative Communities, and Equal Well-Being
A. Three Analytical Streams Converging
This article has pursued three parallel analytical streams. The first established that section 36(1)(a) embeds a genuine constitutional value: a substantive commitment to equal opportunities for the well-being of Canadians that is normatively operative even without judicial enforcement. The second drew on Rajan’s three-pillar analysis and Berman’s account of the efficiency paradigm to establish that this commitment cannot be honoured within a framework that recognises only market and state, and that the restoration of the community pillar is the structural precondition for its fulfilment. The third drew on Heath’s public administration theory to establish that the professional non-partisan public service has a constitutional obligation to attend to this agenda within the channels and constraints of the Westminster model.
The convergence of these three streams produces a unified argument: constitutional theory anchors the value and establishes its normative status; three-pillar social analysis explains the structural failure that has prevented the value from being realised and points toward the institutional remedy; and public administration theory establishes the professional obligations and institutional channels through which the remedy can be pursued.
B. Restorative Communities as Constitutional Purpose
The concept of restorative communities is the connective tissue of the synthesis. It names what section 36(1)(a) requires in institutional terms, not merely better fiscal transfers or more efficient public services, but the restoration of the community pillar to a significant and active role in the architecture of Canadian society. It translates the constitutional commitment to equal opportunities for the well-being of Canadians into a policy agenda organised around the subsidiarity principle, expressed in corporate law through CIC-equivalent institutions, and operationalised in the public service through the analytical frameworks and cultural reforms recommended in Section VIII.
C. What Remains to Be Done
For the scholarly community, this article identifies a research agenda at the intersection of constitutional theory, three-pillar social analysis, public administration scholarship, and social enterprise law, a genuinely interdisciplinary space that existing literature has not adequately mapped.
For practitioners and policymakers, it offers a constitutional and theoretical foundation for work that is already underway in communities across Canada: the development of restorative community institutions, CICs, social enterprises, cooperative organisations, and Indigenous community development corporations that are giving the community pillar new institutional form. That work is not merely social innovation. It is the fulfilment of the constitutional commitment to equal opportunities for the well-being of Canadians through the institutional architecture that the commitment has always implied, but that the machinery of Canadian governance has not yet systematically provided.
Section 36(1)(a) has been waiting for the right institutional vocabulary to give it operational meaning. Restorative communities, grounded in the subsidiarity principle and expressed through the CIC model and its equivalents, is that vocabulary. The constitutional value is not new. The institutional architecture for fulfilling it is now available. The professional obligation to pursue it has been established. What remains is the political will to act and the sustained professional commitment of the non-partisan public service to keep the constitutional commitment to equal opportunities for the well-being of Canadians in view until that will is found.
XI. Conclusion
Section 36(1)(a) of the Constitution Act, 1982 commits Canadian governments to promoting equal opportunities for the well-being of 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, should have equal access to the conditions for a flourishing life that is normatively operative in constitutional interpretation, policy design, and institutional development and evolution.
The Canada that section 36(1)(a) envisions is one in which equal opportunities for the well-being of Canadians are not merely a fiscal transfer from wealthier to poorer provinces, but a genuine condition of social life sustained by institutions that are close to communities, accountable to them, and structurally committed to their benefit. That vision requires three pillars, not two: market, state, and community, each contributing what it is best positioned to provide, organised on the subsidiarity principle, and expressed in law through restorative community institutions that the CIC model exemplifies.
The Canada that section 36(1)(a) envisions cannot be built on two pillars. It requires a third, proximate community, restored to its proper role, legally recognized under section 36, and supported by a public service that understands its constitutional obligation to promote equal opportunities for the well-being of Canadians.
Select Bibliography and Notes
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.
3. Cape Breton (Regional Municipality) v Nova Scotia (Attorney General), 2009 NSCA 44.
4. St Theresa Point First Nation v Canada (Attorney General), 2025 FC 1926 (Federal Court of Canada, Justice Favel, December 5, 2025). Section 36 found not engaged; all other Stage I grounds answered in the affirmative.
5. Reference re Secession of Quebec, [1998] 2 SCR 217.
6. A. Sen, Development as Freedom (Oxford: Oxford University Press, 1999); M.C. Nussbaum, Creating Capabilities: The Human Development Approach (Cambridge, MA: Belknap Press, 2011).
7. J.S. Liptrap, “Community Interest Companies and the Political Economy of the Welfare State” (2021), Centre for Business Research, University of Cambridge.
8. A. Nicholls et al., early empirical analysis of CIC reporting practices (Oxford: Skoll Centre for Social Entrepreneurship).
9. NHS Confederation, Community Interest Companies in Health and Care (London: NHS Confederation, 2023).
10. S. Ayres, “Devolution and Subsidiarity” (2025), City-REDI, University of Birmingham (ESRC-funded).
11. N.W. Barber, “Subsidiarity and Democracy” in The United Kingdom Constitution (Oxford: Oxford Academic, 2021).
12. Comparative analysis of CICs, B Corps, and benefit corporations, Springer Nature comparative corporate law volume.
13. Companies (Audit, Investigations and Community Enterprise) Act 2004 (UK), c 27.
14. Raghuram Rajan, The Third Pillar: How Markets and the State Leave the Community Behind (New York: Penguin Press, 2019).
15. Elizabeth Popp Berman, Thinking Like an Economist: How Efficiency Replaced Equality in US Public Policy (Princeton: Princeton University Press, 2022).
16. Joseph Heath, The Machinery of Government: Public Administration and the Liberal State (Oxford: Oxford University Press, 2020). Heath’s central arguments drawn on in this article include: the normativity thesis (public servants are obligated to the values of the constitutional order, not merely to ministerial instruction); the legalistic disposition of modern public administration; the distinction between partisan neutrality and foundational value neutrality; the principal-agent critique; and the rule-following ethic as constitutive of administrative legitimacy. Specific page references should be verified against the published text before submission.
17. Department of Justice Act, RSC 1985, c J-2; Statutory Instruments Act, RSC 1985, c S-22.
18. Government of Canada, Budget 2021: A Recovery Plan for Jobs, Growth, and Resilience (Ottawa: Department of Finance Canada, 2021), Chapter 1 (Quality of Life Framework).
19. Business Corporations Act, SBC 2002, c 57, Part 2.2 (Community Contribution Companies); Community Interest Companies Act, SNS 2012, c 38.
20. H. Bakvis & G. Skogstad (eds), Canadian Federalism: Performance, Effectiveness and Legitimacy, 3rd ed (Toronto: University of Toronto Press, 2012).
