Sep 11, 2020

Eldridge v British Columbia (AG), [1997] 3 SCR 624

Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624

Introduction:

In this flashback case, we look at three important topics: to whom does the Canadian Charter of Rights and Freedoms apply, what does "equal benefits" mean for disabled people under section 15(1) of the Charter, and briefly at what we mean by “minimal impairment” under the section 1 justification framework.

This case was released in 1997 and is still an essential part of the law school curriculum today. The judgement was written by Justice La Forest and was endorsed by the entirety of the Supreme Court.

Background:

This case concerns the medical care system in British Columbia. In BC, hospitals are funded under the Hospital Insurance Act by the government and other services delivered by healthcare practitioners outside of hospitals are funded by the province’s Medical Services Plan. Neither program paid for sign language interpretation for the deaf.

Each of the appellants in this case – Robin Eldridge, John Warren, and Linda Warren – was born deaf and their preferred means of communication was sign language. They argued that the absence of sign language interpreters impairs their ability to communicate with their doctors and other healthcare providers which increased the risk of misdiagnosis and ineffective treatment. They sought a declaration that this violated their section 15(1) equality rights but were unsuccessful in the lower courts.

Verdict: Appeal allowed.

I will divide this summary into three issues considered by the Court:

  • Does the Charter apply?
  • Was there a section 15(1) violation?
  • Is the violation justified by section 1?
  • Does the Charter apply?

    The Charter does not apply to anyone, but specifically to entities identified in s. 32(1). It reads:

    Application of the Charter

    32(1) This Charter applies:

  • To the Parliament and the government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and the Northwest Territories; and
  • To the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
  • This section sets out the purpose of the Charter as a document to control the power governments have over the individual, and it is not meant to govern relations between private actors.

    However, there are some cases, such as this one, where the Charter applies even to private actors such as hospitals. The Court identified two Charter “application” issues in this case. The first is that it wasn’t the provincial legislation that infringed the Charter but rather the actions of particular hospitals and the BC Medical Services Commission that does so. The Charter infringing conduct was using their discretion not to provide sign language services. The second issue is whether the Charter applies to these entities. The Court concluded that it did apply.

    Legislation can be found to be unconstitutional in multiple ways. It can be, on its face, unconstitutional and therefore invalid, struck down through the operation of s. 52(1) of the Constitution Act. The second scenario is when the Charter is not infringed by the legislation itself, but rather by the actions of a delegated decision-maker that applies it. In this case, the legislation remains valid but the Court can still order a remedy for the applicant under s. 24(1) of the Charter.

    This case concerned the latter scenario. After closely examining the overall legislative scheme of BC’s healthcare system, the Court determined that even though the legislation did not specifically provide for it, sign language interpretation should have been provided as part of the services offered by hospitals and other healthcare providers whenever necessary for effective communication. Their discretion not to do so is what created the Charter violation.

    Having found where the violation occurred, the court considered whether the Charter applied by interpreting s. 32. There are many public or quasi-public institutions that may be independent from government, but exercise governmental powers or be otherwise responsible for the implementation of government policy. When there is an allegation that one of these bodies violates the Charter, it must be established that the entity is a part of “government” within the meaning of section 32.

    The same is true for private entities that are engaged in activities that can in some way be attributed to government. A private entity may be subject to the Charter in respect of certain inherently governmental actions. The rationale behind this is to not allow governments to escape their constitutional obligations by entering into commercial contracts or other “private” arrangements, thus delegating their policies and programs to private entities.

    There are some important nuances to how the Charter may apply to private entities deemed “government” for the purposes of s. 32. First, the fact that an entity performs what may be loosely called a “public function” is not sufficient. In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program.

    Second, the precise way in which the Charter applies to a private entity can be on one of two bases. First, it may be that the entity itself is simply “government.” This involves determining whether nature or degree of governmental control exercised over it means it can be properly characterized as “government.” In these cases, all of the activities of the entity will be subject to the Charter, regardless of whether such activities can normally be characterized as “private.” The second possibility is that the entity is only subject to the Charter with respect to a particularly activity that can be ascribed to government. This involves investigating the nature not of the entity but the activity itself. The quality of the act is at issue, rather than the actor. If the act is “governmental,” such as the implementation of a specific statutory scheme or a government program, the entity performing it will be reviewable by the Charter only in respect of that act and not other private activities.

    In the present case, the BC government attempted to say that hospitals and other healthcare providers were private actors and not “government,” and therefore not subject to the Charter. The Court rejected this argument, stating that the Hospital Insurance Act provides the delivery of a comprehensive social program. Hospitals, as the vehicles the legislature has chosen to deliver this program, are delivering specific governmental actions. They are therefore “government” in this aspect for the purposes of section 32.

    The Court determined that the Charter applies to BC hospitals and the Medical Services Commission as identified by the appellants, and moved on to the potential violation.

    Was there a s. 15(1) violation?

    Section 15(1) states “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

    The Court stressed that the purpose of s. 15(1) is to express the equal worth and human dignity of all persons. As deaf persons, the appellants in this case belonged to a group specifically identified in s. 15(1), the physically disabled. The Court took note that although many deaf persons contest that deafness is an impairment and identify themselves as members of a distinct community, they nonetheless had suffered from exclusion from opportunities and services designed for and available to the hearing population.

    To establish a violation of s. 15(1), a person must first establish that because of a distinction drawn between them and others, the claimant has been denied either “equal protection” or “equal benefit” of the law. Second, the claimant must show that the denial constitutes discrimination on the basis of one of the grounds listed in s. 15(1), or analogous ones.

    The only contested question in this case was whether the appellants had been given “equal benefit of the law without discrimination.” The appellants contended that the lack of funding for sign language interpreters renders them unable to benefit from the legislation to the same extent as hearing persons. Their claim is that the lack of funding for these services created an “adverse effect” not intended by the legislation, but is nonetheless very real.

    Despite the appearance of equality on the face of the BC health care scheme, the adverse effects nonetheless created inequality by denying equal benefits to deaf persons as compared to hearing persons. To establish a s. 15(1) violation, one does not need to show a discriminatory purpose or intention, it is enough if the effect of the legislation was to deny someone equal protection or benefit of the law.

    Communication is central to the delivery of medical services. This is evident when looking at medical negligence law. Physicians have a duty of disclosure to inform patients fully of the risks involved in treatment and to answer their questions regarding such risks. In the absence of sign language in interpretation, there may be cases where it will be impossible for doctors to treat deaf persons without breaching their professional responsibilities.

    Hearing persons receive this and other essential communication freely as a part of their medical care. Deaf persons, meanwhile, must pay for this privilege by supplying their own interpreter. It could not be said that they are receiving the same level of care as hearing persons. Once it is accepted that effective communication was indispensable to receiving medical care, it becomes difficult to show that the failure to ensure deaf persons could communicate with their health care providers is not discriminatory.

    The Court found, in light of the evidence, that the failure of the Medical Services Commission and hospitals to provide sign language interpretation where necessary was a violation of the s. 15(1) rights of deaf persons. The failure denied them equal benefit of the law and discriminates against them in comparison to hearing persons. The quality of care received by the appellants was inferior to that available to hearing persons.

    Is the violation justified by s. 1?

    Once a Charter violation has been established by claimants, the Crown has the opportunity to respond by stating that the violation is justified under section 1 of the Charter, thus saving the law. It reads:

  • The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
  • In order to justify a limitation of a Charter right, the government must establish that the limit is “prescribed by law” and is “reasonable” in a “free and democratic society.”

    The framework used to determine whether a law constitutes a reasonable limit on a Charter right was set out in R v Oakes, [1986] 1 SCR 103. It can be summarized as follows.

  • First the objective of the legislation must be “pressing and substantial.”
  • The means chosen must be reasonable and demonstrably justified in a free and democratic society. This is established by satisfying three criteria:
  • The rights violation must be rationally connected to the aim of the legislation;
  • There must be minimal impairment of the Charter guarantee; and
  • The effect of the measure and its objective must be proportional to each other.
  • It is the government’s burden to prove to the Court on a balance of probabilities that the violation is justifiable.

    In this case (as in most cases) it was not necessary to consider each of the elements of the Oakes framework. The Court assumed that the decision not to fund medical interpretation was a limit “prescribed by law” and that the objective of this decision – controlling healthcare expenditures – was “pressing and substantial.” This decision was also assumed to be rationally connected to the objective (not spending money on interpreters is rationally connected to reducing expenditures).

    Where the measure failed, in this case, was at minimal impairment. The government failed to demonstrate that it had a reasonable basis for concluding that a total denial of medical interpretation services constituted a minimum impairment of their rights. The estimated cost of providing sign language interpretation for the whole of BC was only $150,000, or 0.0025 percent of the provincial healthcare budget at the time. This figure was based on extrapolating from the services formally being provided by the Western Institute for the Deaf and Hard of Hearing in the Lower Mainland area. The Court stated: “The refusal to expend such a relatively insignificant sum to continue and extend the service cannot possible constitute a minimum impairment of the appellants constitutional rights.”

    The government considered and then rejected other options, such as the partial or interim funding of the program offered by the Western Institute for the Deaf and Hard of Hearing, or the institution of a scheme requiring users to pay partial fees for an interpreter. These half-measures would not necessarily have survived s. 1 scrutiny, however the Court raised them for the purpose of demonstrating that the government did not even attempt to institute a scheme that would provide a lesser limitation on deaf persons’ rights.

    Summary

    The Court determined that the failure to fund sign language interpretation was not a “minimal impairment” of the s. 15(1) rights of deaf persons to equal benefit of the law on the basis of their physical disability. The evidence clearly demonstrated that, as a class, deaf persons received medical services inferior to those received by the hearing population. The provision of substandard medical services to the deaf diminishes the overall quality of their lives. The government had not demonstrated that this state of affairs must be tolerated in order to achieve the objective of limiting health care expenditures. The government has, in other words, not made a “reasonable accommodation” of the appellants’ disability, or accommodated their needs to the point of “undue hardship.”

    Remedy

    The Court crafted a unique remedy to address the inequality that had been established by the plaintiffs. They granted a declaration that this failure to provide interpreters to deaf persons is unconstitutional and the government was directed to administer their health care legislation in a manner consistent with the requirements of s. 15(1). The declaration was suspended for six months to grant the government time to explore its options and formulate an appropriate method to provide sign language interpreters where necessary for effective communication in the delivery of medical services.