Legal Issues

[1997] 3 [*]Eldridge[*] v. British Columbia (Attorney

S.C.R. General) 624

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Robin Susan [*]Eldridge[*], John Henry Warren

and Linda Jane Warren Appellants

v.

The Attorney General of British Columbia

and the Medical Services Commission Respondents

and

The Attorney General of Canada,

the Attorney General for Ontario,

the Attorney General of Manitoba,

the Attorney General of Newfoundland,

the Women's Legal Education and Action Fund,

the Disabled Women's Network Canada,

the Charter Committee on Poverty Issues,

the Canadian Association of the Deaf,

the Canadian Hearing Society and

the Council of Canadians with Disabilities Interveners

Indexed as: [*]Eldridge[*] v. British Columbia (Attorney General)

File No.: 24896.

1997: April 24; 1997: October 9.

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,

McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Constitutional law -- Charter of Rights -- Equality rights -- Physical

disability -- Publicly funded medicare -- Medicare not providing for sign

language interpreters -- Whether, and in what manner, the Charter applies to

the decision not to provide sign language interpreters for the deaf as part

of the publicly funded scheme for the provision of medical care -- Whether

not providing for this service under Acts establishing medicare and

hospitalization infringing s. 15(1) equality rights of disabled -- If so,

whether legislation saved under s. 1 -- Appropriate remedy if Charter

violation found -- Canadian Charter of Rights and Freedoms, ss. 1, 15(1)

--Hospital Insurance Act, R.S.B.C. 1979, c. 180 (now R.S.B.C. 1996, c. 204),

ss. 3(1), 5(1), 9, 10(1), 29(b) -- Medical and Health Care Services Act,

S.B.C. 1992, c. 76 (now the Medicare Protection Act, R.S.B.C. 1996, c. 286),

ss. 1, 4(1)(c), (j), 6, 8.

Medical care in British Columbia is delivered through two primary

mechanisms. Hospital services are funded under the Hospital Insurance Act by

the government which reimburses them for the medically required services

provided to the public. Funding for medically required services delivered by

doctors and other health care practitioners is provided by the province's

Medical Services Plan (established and regulated by the Medical and Health

Care Services Act). Neither program pays for sign language interpretation

for the deaf.

Each of the appellants was born deaf and their preferred means of

communication is sign language. They contend that the absence of

interpreters impairs their ability to communicate with their doctors and

other health care providers, and thus increases the risk of misdiagnosis and

ineffective treatment.

The appellants unsuccessfully sought a declaration in the Supreme Court

of British Columbia that the failure to provide sign language interpreters

as an insured benefit under the Medical Services Plan violates the s. 15(1)

of the Canadian Charter of Rights and Freedoms. A majority of the Court of

Appeal dismissed an appeal from this judgment. The constitutional questions

before this Court queried: (1) whether the definition of "benefits" in s. 1

of the Medicare Protection Act infringed s. 15(1) of the Charter by failing

to include medical interpreter services for the deaf, (2) if so, whether the

impugned provision was saved under s. 1 of the Charter, (3) whether ss. 3, 5

and 9 of the Hospital Insurance Act and the Regulations infringed s. 15(1)

by failing to require that hospitals provide medical interpreter services

for the deaf, and (4) if the answer to 3 is yes, whether the impugned

provisions were saved under s. 1. Also at issue were whether, and in what

manner, the Charter applies to the decision not to provide sign language

interpreters for the deaf as part of the publicly funded scheme for the

provision of medical care and, if a Charter violation were found, what the

appropriate remedy would be.

Held: The appeal should be allowed. The first and third constitutional

questions were answered in the negative. It was not necessary to answer the

second and fourth constitutional questions.

The Charter applies to provincial legislation in two ways. Firstly,

legislation may be found to be unconstitutional on its face because it

violates a Charter right and is not saved by s. 1. Secondly, the Charter may

be infringed, not by the legislation itself, but by the actions of a

delegated decision-maker in applying it. The legislation remains valid but a

remedy for the unconstitutional action may be sought pursuant to s. 24(1) of

the Charter.

In the present case the question whether the alleged breach of s. 15(1)

arises from the impugned legislation itself or from the action of entities

exercising decision-making authority pursuant to that legislation must be

explored. The failure of the Medical and Health Care Services Act to provide

expressly for sign language interpretation as a medically required service

does not violate s. 15(1) of the Charter. The legislation simply does not,

either expressly or by necessary implication, prohibit the Medical Services

Commission from determining that sign language interpretation is a

"medically required" service and hence a benefit under the Act. It is the

decision of the authority which has been delegated the power to determine

whether a service qualifies as a benefit that is constitutionally suspect,

not the statute itself. The discretion accorded to the Medical Services

Commission does not necessarily or typically threaten the equality rights

set out in s. 15(1) of the Charter. This possibility that the Commission can

infringe these rights in the exercise of its authority is, however,

incidental to the purpose of discretion, which is to ensure that all

medically required services are paid for by the government.

The Hospital Insurance Act should be read in conformity with s. 15(1).

Hospitals are left with substantial discretion as to how to provide the

services listed in the legislation. No individual hospital is required to

offer all of the services set out in s. 5(1) of the Act. Further, individual

hospitals are given considerable discretion by the Act as to how the

services they decide to provide are delivered and they are not precluded

from supplying sign language interpreters. The fact that this Act does not

expressly mandate the provision of sign language interpretation does not

render it constitutionally vulnerable. The potential violation of s. 15(1)

inheres in the discretion wielded by a subordinate authority, not the

legislation itself.

Legislatures may not enact laws that infringe the Charter and they

cannot authorize or empower another person or entity to do so. Even though a

legislature may give authority to a body that is not subject to the Charter,

the Charter applies to all the activities of government whether or not they

may be otherwise characterized as "private" and it may apply to

non-governmental entities in respect of certain inherently governmental

actions. Governments, just as they are not permitted to escape Charter

scrutiny by entering into commercial contracts or other "private"

arrangements, should not be allowed to evade their constitutional

responsibilities by delegating the implementation of their policies and

programs to private entities.

Two important points must be made with respect to this principle.

First, the mere fact that an entity performs what may loosely be termed a

"public function", or the fact that a particular activity may be described

as "public" in nature, will not be sufficient to bring it within the purview

of "government" for the purposes of s. 32 of the Charter. In order for the

Charter to apply to a private entity, it must be found to be implementing a

specific governmental policy or program.

The second important point concerns the precise manner in which the

Charter may be held to apply to a private entity. First, it may be

determined that the entity is itself "government" for the purposes of s. 32.

This involves an inquiry into whether the entity whose actions have given

rise to the alleged Charter breach can, either by its very nature or in

virtue of the degree of governmental control exercised over it, properly be

characterized as "government" within the meaning of s. 32(1). In such cases,

all of the activities of the entity will be subject to the Charter,

regardless of whether the activity in which it is engaged could, if

performed by a non-governmental actor, correctly be described as "private".

Second, an entity may be found to attract Charter scrutiny with respect to a

particular activity that can be ascribed to government. This demands an

investigation not into the nature of the entity whose activity is impugned

but rather into the nature of the activity itself. In such cases, the

quality of the act at issue, rather than the quality of the actor, must be

scrutinized.

Hospitals, in providing medically necessary services, carry out a

specific governmental objective. The Hospital Insurance Act is not simply a

mechanism to prevent hospitals from charging for their services. Rather, it

provides for the delivery of a comprehensive social program. Hospitals are

merely the vehicles the legislature has chosen to deliver this program.

A direct and precisely defined connection exists between a specific

government policy and the hospital's impugned conduct. The alleged

discrimination --the failure to provide sign language interpretation -- is

intimately connected to the medical service delivery system instituted by

the legislation. The provision of these services is not simply a matter of

internal hospital management; it is an expression of government policy. The

Legislature, upon defining its objective as guaranteeing access to a range

of medical services, cannot evade its obligations under s. 15(1) of the

Charter to provide those services without discrimination by appointing

hospitals to carry out that objective. In so far as they do so, hospitals

must conform with the Charter.

As well, the Medical Services Commission, in determining whether a

service is a benefit under the Medical and Health Care Services Act,

implements a government policy, namely, to ensure that all residents receive

medically required services without charge. There is no doubt that in

exercising this discretion the Commission acts in governmental capacity and

is subject to the Charter.

As deaf persons, the appellants belong to an enumerated group under

s. 15(1) -- the physically disabled. There is also no question that the

distinction drawn between the appellants and others is based on a personal

characteristic that is irrelevant to the functional values underlying the

health care system -- the promotion of health, the prevention and treatment

of illness and disease, and the realization of those values through a

publicly funded health care system.

The only question in this case is whether the appellants have been

afforded "equal benefit of the law without discrimination" within the

meaning of s. 15(1) of the Charter. On its face, the medicare system applies

equally to the deaf and hearing populations. The appellants' claim,

nevertheless, is one of "adverse effects" discrimination, protection against

which is provided by s. 15(1) of the Charter.

A discriminatory purpose or intention is not a necessary condition of a

s. 15(1) violation. A legal distinction need not be motivated by a desire to

disadvantage an individual or group in order to violate s. 15(1). It is

sufficient if the effect of the legislation is to deny someone the equal

protection or benefit of the law.

Adverse effects discrimination is especially relevant in the case of

disability. In the present case the adverse effects suffered by deaf persons

stem not from the imposition of a burden not faced by the mainstream

population, but rather from a failure to ensure that deaf persons benefit

equally from a service offered to everyone. Once it is accepted that

effective communication is an indispensable component of the delivery of a

medical service, it is much more difficult to assert that the failure to

ensure that deaf persons communicate effectively with their health care

providers is not discriminatory. To argue that governments should be

entitled to provide benefits to the general population without ensuring that

disadvantaged members of society have the resources to take full advantage

of those benefits bespeaks a thin and impoverished vision of s. 15(1). It is

belied, more importantly, by the thrust of this Court's equality

jurisprudence.

Section 15(1) makes no distinction between laws that impose unequal

burdens and those that deny equal benefits. The government will be required

(at least at the s. 15(1) stage of analysis) to take special measures to

ensure that disadvantaged groups are able to benefit equally from government

services. If there are policy reasons in favour of limiting the government's

responsibility to ameliorate disadvantage in the provision of benefits and

services, those policies are more appropriately considered in determining

whether any violation of s. 15(1) is saved by s. 1 of the Charter.

The principle that discrimination can accrue from a failure to take

positive steps to ensure that disadvantaged groups benefit equally from

services offered to the general public is widely accepted in the human

rights field. It is also a cornerstone of human rights jurisprudence that

the duty to take positive action to ensure that members of disadvantaged

groups benefit equally from services offered to the general public is

subject to the principle of reasonable accommodation. In s. 15(1) cases this

principle is best addressed as a component of the s. 1 analysis. Reasonable

accommodation, in this context, is generally equivalent to the concept of

"reasonable limits". It should not be employed to restrict the ambit of

s. 15(1).

The failure of the Medical Services Commission and hospitals to provide

sign language interpretation where it is necessary for effective

communication constitutes a prima facie violation of the s. 15(1) rights of

deaf persons. This failure denies them the equal benefit of the law and

discriminates against them in comparison with hearing persons. Although the

standard set is broad, this is not to say that sign language interpretation

will have to be provided in every medical situation. The "effective

communication" standard is a flexible one, and will take into consideration

such factors as the complexity and importance of the information to be

communicated, the context in which the communications will take place and

the number of people involved. For deaf persons with limited literacy

skills, sign language interpretation can be surmised to be required in most

cases.

The application of the Oakes test requires close attention to the

context in which the impugned legislation operates. In the present case, the

failure to provide sign language interpreters would fail the minimal

impairment branch of the Oakes test under a deferential approach. It was,

therefore, unnecessary to decide whether in this "social benefits" context,

where the choice is between the needs of the general population and those of

a disadvantaged group, a deferential approach should be adopted. At the same

time, the leeway to be granted to the state is not infinite. Governments

must demonstrate that their actions infringe the rights in question no more

than is reasonably necessary to achieve their goals. In the present case,

the government has manifestly failed to demonstrate that it had a reasonable

basis for concluding that a total denial of medical interpretation services

for the deaf constituted a minimum impairment of their rights.

Moreover, it is purely speculative to argue that the government, if

required to provide interpreters for deaf persons, will also have to do so

for other non-official language speakers, thereby increasing the expense of

the program dramatically. The possibility that a s. 15(1) claim might be

made by members of the latter group cannot justify the infringement of the

constitutional rights of the deaf. The appellants ask only for equal access

to services that are available to all. The respondents have presented no

evidence that this type of accommodation, if extended to other government

services, will unduly strain the fiscal resources of the state. The

government has not made a "reasonable accommodation" of the appellants'

disability nor has it accommodated the appellants' need to the point of

undue hardship.

The appropriate and just remedy was to grant a declaration that this

failure is unconstitutional and to direct the government of British Columbia

to administer the Medical and Health Care Services Act and the Hospital

Insurance Act in a manner consistent with the requirements of s. 15(1). A

declaration, as opposed to some kind of injunctive relief, was the

appropriate remedy because there are myriad options available to the

government that may rectify the unconstitutionality of the current system.

It was appropriate to suspend the effectiveness of the declaration for six

months to enable the government to explore its options and formulate an

appropriate response.

Cases Cited

Followed: Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R.

1038; considered: McKinney v. University of Guelph, [1990] 3 S.C.R. 229;

Harrison v. University of British Columbia, [1990] 3 S.C.R. 451; Stoffman v.

Vancouver General Hospital, [1990] 3 S.C.R. 483; Douglas/Kwantlen Faculty

Assn. v. Douglas College, [1990] 3 S.C.R. 570; Lavigne v. Ontario Public

Service Employees Union, [1991] 2 S.C.R. 211; Eaton v. Brant County Board of

Education, [1997] 1 S.C.R. 241; Rodriguez v. British Columbia (Attorney

General), [1993] 3 S.C.R. 519; Ontario Human Rights Commission v.

Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; distinguished: Symes v. Canada,

[1993] 4 S.C.R. 695; referred to: RWDSU v. Dolphin Delivery Ltd., [1986] 2

S.C.R. 573; James v. Cowan, [1932] A.C. 542; Schneider v. The Queen, [1982]

2 S.C.R. 112; Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R.

525; Re Ontario Film & Video Appreciation Society and Ontario Board of

Censors (1984), 5 D.L.R. (4th) 766, aff'g (1983), 147 D.L.R. (3d) 58; Hunter

v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1

S.C.R. 295; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Andrews v. Law

Society of British Columbia, [1989] 1 S.C.R. 143; United States of America

v. Cotroni, [1989] 1 S.C.R. 1469; Reference Re Prov. Electoral Boundaries

(Sask.), [1991] 2 S.C.R. 158; Minister of Home Affairs v. Fisher, [1980]

A.C. 319; R. v. Turpin, [1989] 1 S.C.R. 1296; Miron v. Trudel, [1995] 2

S.C.R. 418; Egan v. Canada, [1995] 2 S.C.R. 513; Thibaudeau v. Canada,

[1995] 2 S.C.R. 627; Benner v. Canada (Secretary of State), [1997] 1 S.C.R.

358; Washington, Mayor of Washington, D.C. v. Davis, 426 U.S. 229 (1976);

Village of Arlington Heights v. Metropolitan Housing Development Corp., 429

U.S. 252 (1977); Personnel Administrator of Massachusetts v. Feeney, 442

U.S. 256 (1979); Central Alberta Dairy Pool v. Alberta (Human Rights

Commission), [1990] 2 S.C.R. 489; Central Okanagan School District No. 23 v.

Renaud, [1992] 2 S.C.R. 970; Reibl v. Hughes, [1980] 2 S.C.R. 880; Hopp v.

Lepp, [1980] 2 S.C.R. 192; Tétreault-Gadoury v. Canada (Employment and

Immigration Commission), [1991] 2 S.C.R. 22; Haig v. Canada (Chief Electoral

Officer), [1993] 2 S.C.R. 995; Native Women's Assn. of Canada v. Canada,

[1994] 3 S.C.R. 627; Schachter v. Canada, [1992] 2 S.C.R. 679; Brooks v.

Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Bliss v. Attorney General of

Canada, [1979] 1 S.C.R. 183; Re Saskatchewan Human Rights Commission and

Canadian Odeon Theatres Ltd. (1985), 18 D.L.R. (4th) 93, leave to appeal

refused, [1985] 1 S.C.R. vi; Howard v. University of British Columbia

(1993), 18 C.H.R.R. D/353; Centre de la communauté sourde du Montréal

métropolitain inc. v. Régie du logement, [1996] R.J.Q. 1776; Bonner v.

Lewis, 857 F.2d 559 (1988); R. v. Oakes, [1986] 1 S.C.R. 103; Ross v. New

Brunswick School District No. 15, [1996] 1 S.C.R. 825; R. v. Keegstra,

[1990] 3 S.C.R. 697; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1

S.C.R. 927; Committee for the Commonwealth of Canada v. Canada, [1991] 1

S.C.R. 139; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R.

199.

Statutes and Regulations Cited

Americans with Disabilities Act, 42 U.S.C. §§ 12182-12189 (1997).

Canada Health Act, R.S.C., 1985, c. C-6, ss. 2 "hospital services", "insured

health services", "physician services", 3, 4 [repl. Budget Implementation

Act, 1995, S.C. 1995, c. 17, s. 35], 5 [idem, s. 36], 7, 9.

Canadian Charter of Rights and Freedoms, ss. 1, 15(1), 24(1), 32.

Code of Federal Regulations, 28 C.F.R. § 35.160 (1997); 28 C.F.R. §

36.303(b) and (c) (1997); 45 C.F.R. § 84.52(c) (1997).

Constitution Act, 1867, 92(7), (13), (16).

Constitution Act, 1982, s. 52(1).

Hospital Insurance Act, R.S.B.C. 1979, c. 180 (now R.S.B.C. 1996, c. 204),

ss. 1, 3(1), 5(1)(a), (d) [am. Miscellaneous Statutes Amendment Act (No. 4),

1987, S.B.C. 1987, c. 59, s. 7], (e) [idem], (f) [idem], 9, 10(1), 13(1),

15(3)(c), 29(b) [am. Health Statutes Amendment Act, 1985, S.B.C. 1985, c. 9,

s. 19].

Hospital Insurance Act Regulations, B.C. Reg. 25/61, ss. 5.1 [am. B.C. Reg.

245/80, s. 6], 5.7 [en. B.C. Reg. 219/65, s. 2; am. B.C. Reg. 245/80, s. 6],

5.8 [idem], 5.22 [en. B.C. Reg. 225/88; am. B.C. Regs. 44/89; 218/93].

Medical and Health Care Services Act, S.B.C. 1992, c. 76 (now the Medicare

Protection Act, R.S.B.C. 1996, c. 286), ss. 1 "benefits", 4(1)(c), (j),

(2), 6, 8(1).

Medical Service Act Regulations, B.C. Reg. 144/68, ss. 4.04, 4.09.

Rehabilitation Act, 29 U.S.C. § 794 (1997).

United States Constitution, Fourteenth Amendment.

Authors Cited

Canada. Minister of Human Resources Development. Improving Social Security

in Canada. Persons with Disabilities: A Supplementary Paper. Ottawa:

Minister of Supply and Services Canada, 1994.

Canada. Statistics Canada. Housing, Family and Social Statistics Division.

Target Groups Project. A Portrait of Persons with Disabilities. Ottawa:

Statistics Canada, 1995.

Canadian Bar Association. Task Force on Health Care. What's Law Got to Do

with It? Health Care Reform in Canada. Ottawa: The Association, 1994.

Chilton, Elizabeth Ellen. "Ensuring Effective Communication: The Duty of

Health Care Providers to Supply Sign Language Interpreters for Deaf

Patients" (1996), 47 Hastings L.J. 871.

Elliot, Robin. "Scope of the Charter's Application" (1993), 15 Advocates' Q.

204.

Goundry, Sandra A., and Yvonne Peters. Litigating for Disability Equality

Rights: The Promises and the Pitfalls. Prepared for the Canadian Disability

Rights Council, Winnipeg. Winnipeg: Canadian Disability Rights Council,

1994.

Hogg, Peter W. Constitutional Law of Canada, vol. 1, 3rd ed. (Supplemented).

Scarborough, Ont.: Carswell, 1992 (loose-leaf).

Lepofsky, M. David. "A Report Card on the Charter's Guarantee of Equality to

Persons with Disabilities after 10 Years -- What Progress? What Prospects?"

(1997), 7 N.J.C.L. 263.

McLachlin, Beverley. "The Evolution of Equality" (1996), 54 Advocate 559.

McLellan, A. Anne, and Bruce P. Elman. "To Whom Does the Charter Apply? Some

Recent Cases on Section 32" (1986), 24 Alta. L. Rev. 361.

Pothier, Dianne. "M'Aider, Mayday: Section 15 of the Charter in Distress"

(1996), 6 N.J.C.L. 295.

Ross, June M. "Applying the Charter to Discretionary Authority" (1991), 29

Alta. L. Rev. 382.

Sacks, Oliver. Seeing Voices: A Journey Into the World of the Deaf. Los

Angeles: University of California Press, 1989.

APPEAL from a judgment of the British Columbia Court of Appeal (1995),

7 B.C.L.R. (3d) 156, 59 B.C.A.C. 254, 98 W.A.C. 254, 125 D.L.R. (4th) 323,

[1995] B.C.J. No. 1168 (QL), dismissing an appeal from a judgment of Tysoe

J. (1992), 75 B.C.L.R. (2d) 68, [1992] B.C.J. No. 2229 (QL). Appeal allowed.

Lindsay M. Lyster and Andrea L. Zwack, for the appellants.

Harvey M. Groberman and Lisa J. Mrozinski, for the respondents.

Judith Bowers, Q.C., and Simon Fothergill, for the intervener the

Attorney General of Canada.

Janet E. Minor and Richard J. K. Stewart, for the intervener the

Attorney General for Ontario.

Deborah L. Carlson, for the intervener the Attorney General of

Manitoba.

B. Gale Welsh, Q.C., for the intervener the Attorney General of

Newfoundland.

Jennifer Scott, Katherine Hardie and Judy Parrack, for the interveners

the Women's Legal Education and Action Fund and the Disabled Women's Network

Canada.

Martha Jackman and Arne Peltz, for the intervener the Charter Committee

on Poverty Issues.

David Baker and Patricia Bregman, for the interveners the Canadian

Association of the Deaf, the Canadian Hearing Society and the Council of

Canadians with Disabilities.

The judgment of the Court was delivered by

//La Forest J.//

1 LA FOREST J. -- This appeal raises the question whether a provincial

government's failure to provide funding for sign language interpreters for

deaf persons when they receive medical services violates s. 15(1) of the

Canadian Charter of Rights and Freedoms. The appellants assert that, because

of the communication barrier that exists between deaf persons and health

care providers, they receive a lesser quality of medical services than

hearing persons. The failure to pay for interpreters, they contend,

infringes their right to equal benefit of the law without discrimination

based on physical disability.

Factual Background

2 Medical care in British Columbia is delivered through two primary

mechanisms. Hospital services are funded by the government through the

Hospital Insurance Act, R.S.B.C. 1979, c. 180 (now R.S.B.C. 1996, c. 204),

which reimburses hospitals for the medically required services they provide

to the public. Funding for medically required services delivered by doctors

and other health care practitioners is provided by the province's Medical

Services Plan, which is established and regulated by the Medical and Health

Care Services Act, S.B.C. 1992, c. 76 (now known as the Medicare Protection

Act, R.S.B.C. 1996, c. 286). Neither of these programs pays for sign

language interpretation for the deaf.

3 Until 1990, the Western Institute for the Deaf and Hard of Hearing, a

private, non-profit agency, provided free medical interpreting services for

deaf persons in the Lower Mainland of British Columbia. This program was

funded entirely from private sources without any contribution from the

provincial government. In September 1990, the Institute discontinued the

service because it no longer had sufficient funds to pay for it.

4 Prior to cancelling the program, the Institute made two requests of

the Ministry of Health for funding. At the time, it had contracts with a

number of government departments to provide sign language interpreters in

connection with various services. The Institute requested similar funding

for the provision of interpreters in the medical setting, suggesting that

sign language interpretation be covered as an insured benefit under the

Medical Services Plan. The first request was made in 1989 and was declined

out of hand. The second request was made in May 1990 after the Institute had

decided that it could no longer fund the service. The cost of the proposed

program, which would have extended throughout the province, was estimated to

be $ 150,000 per year. The Ministry turned down the request on the basis

that it would strain available resources and create a precedent for the

funding of similar services for the non-English speaking immigrant

community.

5 Each of the appellants was born deaf. Their preferred means of

communication is sign language. They contend that the absence of

interpreters impairs their ability to communicate with their doctors and

other health care providers, and thus increases the risk of misdiagnosis and

ineffective treatment. One of the appellants, Robin [*]Eldridge[*], suffers

from a number of medical conditions, including diabetes. She sees a general

physician and a specialist a number of times per year. Neither of these

doctors knows sign language. She has also been a patient in hospital on

several occasions. The hospitals did not provide her with sign language

interpreters. Prior to its termination, she used the Institute's free

medical interpreting service. Subsequently, she hired an interpreter when

she had surgery in hospital. She testified that she would continue to hire

interpreters for important medical situations but could not afford to hire

one for every visit to the doctor or hospital. She finds visiting her

doctors without an interpreter very stressful and confusing since, in her

view, she cannot communicate adequately with them. Her specialist testified

that he was satisfied with the level of communication when a sign language

interpreter was present. In the absence of an interpreter, he explained, he

was unsure about the accuracy of information conveyed by Ms. [*]Eldridge[*].

Communication with her in these circumstances, he stated, was inhibited and

frustrating.

6 The other appellants, John and Linda Warren, see their doctor

frequently. Although they had planned to hire an interpreter for the birth

of their twin daughters, they were unable to procure one in time as the

girls were born prematurely. Linda Warren testified that in the absence of

an interpreter, the birth process was difficult to understand and

frightening. During the birth, the nurse communicated to her through

gestures that the heart rate of one of the babies had gone down. After the

babies were born, they were immediately taken from her. Other than writing a

note stating that they were "fine", no one explained their condition to her.

7 The Warrens' physician, who does not know sign language, testified

that communication by written notes is time consuming, impractical and has

the potential to result in harm in some circumstances. Adequate

communication, she related, is particularly critical for childbirth. If the

doctor can communicate with the patient so that the patient is able to help

with the delivery, she explained, complications are less likely to occur and

the patient is less apt to have a traumatic birth. In her view, writing

notes is not effective in these circumstances; an interpreter is necessary

for proper communication. At the time of the trial, the Warrens were

expecting another child and wished to have an interpreter present at the

birth. They stated that they would not be able to afford one for this

purpose or for other visits to their doctor.

8 At trial, the appellants adduced expert testimony explaining that many

deaf persons are severely limited in their ability to read and write. The

average deaf person, one expert related, has a grade three literacy level.

Evidence was also led indicating that miscommunication between deaf persons

and their doctors may lead to misdiagnosis. It was also noted that in

Alberta and Manitoba the provincial government funds interpreting services

for the deaf giving the highest priority to medical interpretation.

9 The respondents presented evidence relating to the budgetary process

of the Ministry of Health and the structure of the Medical Services Plan.

The government, witnesses explained, does not provide any services directly.

Rather, it pays for the provision of medical services by the medical and

health care practitioners on a fee-for-service basis. The Plan covers most

health services; however there are a number of services that are not

included or are funded only in part. These include the services of clinical

psychologists, occupational therapists, speech therapists, nutritional

counsellors and dentists. Moreover, the province does not pay for such

medically related expenses as artificial limbs, hearing aids, or wheelchairs

and provides only limited funding for prescription drugs.

10 Hospitals in British Columbia are funded through lump sum "global"

payments that they are for the most part free to allocate as they see fit.

They are rarely ordered by government to provide specific services. In those

instances, they are generally required to fund the service out of their

global budgets. The government does provide some funding for specific

programs, such as heart transplantation, but this is infrequent.

Judicial History

11 The appellants filed an application in the Supreme Court of British

Columbia seeking, inter alia, a declaration that the failure to provide sign

language interpreters as an insured benefit under the Medical Services Plan

violates s. 15(1) of the Charter. Tysoe J. dismissed the application

((1992), 75 B.C.L.R. (2d) 68), finding that this failure did not infringe s.

15(1). He determined that sign language interpretation is ancillary to

medically required services in much the same way as is transportation to a

doctor's office. Any disadvantage suffered by the deaf, he concluded, is not

the result of the government's failure to provide such services, but is

rather the result of a limitation that exists outside the legislation.

12 In Tysoe J.'s view, the Charter does not require governments to

implement programs to assist disabled persons. If the government provides a

benefit, he stated, s. 15(1) requires that it be distributed equally. There

is no obligation, however, to provide the benefit in the first place. He

thus concluded that while it is desirable that deaf persons have

interpreters for medical procedures and that the cost be borne by society if

they cannot afford to pay, s. 15(1) does not demand this result.

13 On appeal to the British Columbia Court of Appeal (1995), 7 B.C.L.R.

(3d) 156, the majority (Hollinrake and Cumming JJ.A.) held that the lack of

interpreting services in hospitals is not discriminatory because the

Hospital Insurance Act does not provide any "benefit of the law" within the

meaning of s. 15(1) of the Charter. Writing for the majority, Hollinrake

J.A. noted that the extent of the services provided by each hospital is

subject to its own decision as to how to spend the global grant received

from government. The absence of interpreters, he thus found, results not

from the legislation but rather from each hospital's budgetary discretion.

Because hospitals are not "government" within the meaning of s. 32 of the

Charter, he concluded, their failure to provide interpretation does not

engage s. 15(1).

14 He next determined that the Medical and Health Care Services Act did

not violate s. 15(1) of the Charter because it did not create a distinction

between the deaf and hearing populations. The proper approach to the

application of adverse effects analysis to benefit-conferring legislation,

he held, was to focus on the impact of the legislation on the disadvantaged

group. In considering this impact, he opined, a distinction must be drawn

between effects attributable to the legislation and those that exist

independently of it. In the absence of legislation, deaf people would be

required to pay their doctors in addition to translators in order to receive

equivalent medical services to hearing persons. The legislation removes the

responsibility of both hearing and deaf persons to pay their physicians. The

inequality resulting from the fact that the deaf remain responsible for the

payment of translators, in his view, exists independently of the

legislation. Thus, he concluded that the legislation provided the benefit of

free medical services equally to the hearing and deaf populations.

15 Lambert J.A., in contrast, held that the legislation violated s.

15(1). He noted that many deaf patients, including the appellants, have

difficulty communicating by writing. As a result, cases will arise where

doctors will be unable to discharge their professional obligations without

the aid of an interpreter. Because effective communication is an integral

part of medical care, he concluded, sign language interpretation should not

be considered a merely ancillary service. In his view, it is no answer to

say that before the benefit was enacted, deaf persons were at a disadvantage

and that this burden has not been increased by the provision of the benefit.

The proper question is whether the law confers a benefit to which the

disadvantaged group does not have the same access as others. He thus

concluded that the Medical and Health Care Services Act discriminated

against the appellants where they seek to obtain medical services that

require, for the discharge of the practitioner's professional obligations,

effective communication between the practitioner and the patient, and where

effective communication can only be achieved through the provision of

translation services.

16 Lambert J.A. found, however, that this infringment was justified

under s. 1 of the Charter. He noted the Medical and Health Care Services Act

does not ensure comprehensive health care coverage. It does not provide for

a number of products and services that are required by disabled persons,

such as artificial limbs, hearing aids and wheelchairs. In the allocation of

scarce financial resources, he stated, governments must make choices about

spending priorities. In these circumstances, he held, courts should defer to

legislative policy and administrative expertise.

17 Leave to appeal to this Court was granted ([1996] 2 S.C.R. vi) and

the following constitutional questions were stated:

1 Does the definition of "benefits" in s. 1 of the Medicare Protection

Act, S.B.C. 1992, c. 76, infringe s. 15(1) of the Canadian Charter of Rights

and Freedoms by failing to include medical interpreter services for the

deaf?

2 If the answer to question 1 is yes, is the infringement demonstrably

justified in a free and democratic society pursuant to s. 1 of the Canadian

Charter of Rights and Freedoms?

3 Do ss. 3, 5 and 9 of the Hospital Insurance Act, R.S.B.C. 1979, c.

180, and the Regulations enacted pursuant to s. 9 of that Act, infringe s.

15(1) of the Canadian Charter of Rights and Freedoms by failing to require

that hospitals in the Province of British Columbia provide medical

interpreter services for the deaf?

4 If the answer to question 3 is yes, is the infringement demonstrably

justified in a free and democratic society pursuant to s. 1 of the Canadian

Charter of Rights and Freedoms?

Issues

18 There are four principal issues to be considered in this appeal.

First, it must be determined whether, and in what manner, the Charter

applies to the decision not to provide sign language interpreters for the

deaf as part of the publicly funded scheme for the provision of medical

care. Second, the Court must decide whether this decision constitutes a

prima facie violation of s. 15(1) of the Charter. Having found such a

violation, it must be determined whether it is saved by s. 1. After

concluding that it is not, an appropriate remedy must be crafted.

Application of the Charter

19 There are two distinct Charter "application" issues in this case. The

first is to identify the precise source of the alleged s. 15(1) violations.

As I will develop later, in my view it is not the impugned legislation that

potentially infringes the Charter. Rather, it is the actions of particular

entities -- hospitals and the Medical Services Commission -- exercising

discretion conferred by that legislation that does so. The second question

is whether the Charter applies to those entities. In my view, the Charter

applies to both in so far as they act pursuant to the powers granted to them

by the statutes. I deal with each of these questions in turn.