Eldridge v. British Columbia (Attorney General) [1997] 3 S.C.R. 624: -- 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

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.

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