Section 36: Please don’t shoot the bookmobile

Wait! You don’t have to shoot the bookmobile. It says so in the Constitution.

Most Canadians know about the Canadian Charter of Rights and Freedoms. It is Part I of the Constitution of Canada. That’s where you read about fundamental freedoms and equality rights, and the Supreme Court regularly hears cases based on these provisions.

We don’t hear so much about Part III, which has a less inspiring title, Equalization and Regional Disparities. But it is an important one for provinces that have been trying to get Ottawa to live up to its commitments.

In New Brunswick it started as early as 1871, when the first delegation went to Ottawa to press the province’s “just and legal claims” for better treatment. As students of regional history know, the story continued on in the Maritime Rights movement of the 1920s and the Atlantic Revolution of the 1950s.

Provincial governments have long made the basic argument that they do not have enough revenue to provide the services that are their responsibility. The federal government slowly began to address the problem, especially in the period of social reconstruction after the Second World War when citizens demanded that governments do more for education, health and the welfare of all citizens.

The outcome was a system of fiscal transfers and equalization grants to enable all provinces to deliver basic services at levels approaching the Canadian standard. The purpose was to achieve “equal opportunity” for all Canadians. It is worth noting that “equal opportunity” was a key phrase in the political discourse of the 1960s and 1970s in this province.

This ideal was written into the Constitution in 1982 as Section 36, which says that the federal and 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.”

Of course, this would require resources. As Section 36 goes on to say: “Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.”

This is a major part of the Canadian social contract. Public services are part of the social wage that makes up the real standard of living. We all share in the wealth that comes to us in the form of public education, public health care, public libraries and so many other public goods.

This is not the place to repeat the story of how this commitment was eroded over the past 25 years. Federal governments massively reduced support for provinces and programs, too often forgetting that the provinces provide essential services to the rest of the country by educating, training and caring for the next generation as well as assisting an aging population when they leave the labour force and are attracted to places that offer the best quality of life for their later years.

But Section 36 is not a state secret. What is surprising is that we hear so little from our political leaders about their basic constitutional responsibility for the delivery of  “reasonably comparable levels of public services at reasonably comparable levels of taxation.”

The Constitution does not require us to single out bookmobiles and ferryboats, daycare centres and seniors in order to prove that we can keep our fiscal house in order. Instead, the Constitution requires the federal government to come to the aid of provinces to support public services at the Canadian standard.

Instead of living within our means, we are actually required by the Constitution to live beyond our means — if that is what is necessary to maintain the Canadian way of life for citizens, wherever they live and whatever the standard of care and service they require.

In short, public services are entitled to protection under Section 36.  They could even land in the Supreme Court. In the meanwhile, please don’t shoot the bookmobile.

David Frank teaches Canadian history at the University of New Brunswick.