The history of disabled persons in Canada is largely one of exclusion and marginalization.

"It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions... This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw. As a result, disabled persons have not generally been afforded the "equal concern, respect and consideration" that s.15(1) of the Charter demands. Instead, they have been subjected to paternalistic attitudes of pity and charity.... Deaf persons have not escaped this general predicament."

Thus did Mr. Justice LaForest of the Supreme Court of Canada summarize the context in which the Court reviewed the case of three deaf persons from British Columbia, who asked for the right to be provided with sign language interpreters when seeking medical help in hospital. Such help had been available to deaf persons in British Columbia until 1990, when the program was canceled because the non-profit agency providing the service could no longer afford to continue it. Two requests to the BC Ministry of Health for funding were turned down. The result: when one of the appellants in this case was giving birth to twins, she was forced to communicate with her obstetrician by written notes, a process both the patient and the doctor described as dangerous, frustrating, impractical and inadequate.

The appellants argued that their right to equal treatment under s. 15 of the Canadian Charter of Rights and Freedoms was violated. S. 15 of the Charter says that every individual in Canada - regardless of race, religion, national or ethnic origin, color, sex, age or physical or mental disability - is considered equal and governments must not discriminate against individuals on these grounds in their laws or programs. The Appellants argued that the hospital's failure to provide sign language interpretation when it was necessary for effective communication between doctor and patient meant that they could not benefit from the health care system equally with hearing patients. This is called adverse effects discrimination: a law which appears on its face to be neutral, in fact, discriminates against a certain group.

The Supreme Court of Canada agreed. It was unanimous in holding that the Charter rights of the applicants were violated. Mr Justice Gerard LaForest wrote: "If there are circumstances in which deaf patients cannot communicate effectively with their doctors without an interpreter, how can it be said that they received the same level of medical care as hearing persons?"

* Hospitals are not governments or government bodies. However, the Supreme Court is saying that hospitals, in providing medically necessary services, carry out a specific government objective and governments cannot dodge their obligations under the Charter by delegating responsibility to hospitals or other private entities. Legal commentators say this will become increasingly important in the years ahead as governments look for ways to privatize services that they once provided.

* Governments, in some cases, must take steps to make sure that disabled persons are treated equally under the law. It is not enough to say that a law does not have a discriminatory intention. Governments will be required to take special measures to ensure that disadvantaged groups are able to benefit equally from government services.

* This decision marks the first time the Supreme Court of Canada has explicitly said that it will allow the Charter to be used to review the actions of private entities when they act on behalf of government. . Justice LaForest stated: "If the act is truly governmental in nature - for example, the implementation of a specific statutory scheme or government program - the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities."

The government of British Columbia and several other provinces including Newfoundland and Labrador argued against the application of the Charter in this case. Their arguments can be summarized briefly: It costs too much and we can't afford it. This argument was given short shrift by the Court, which noted that the respondents presented no evidence that accommodating the appellants' needs, if extended to other government services, would unduly strain government resources.

There has been a mixed reaction to this decision. Advocates for the disabled have been jubilant; watchers of the public purse have been dismayed. Many doomsday scenarios have been painted by editorialists and letter-writers, prophesying a floodgate of applications by special interest groups, putting further strain on already scarce dollars for social services. However, the Court foresaw and rejected such speculation, saying that such conjecture would in effect destroy the usefulness of s. 15 of the Charter and "render the disable’s goal of a barrier free society distressingly remote." Whether we agree or not, this is a landmark decision and we can expect to see the ramifications of this judgment ripple through the Canadian court system for some years to come.

Brudder