70 The centrality of communication to the delivery of medical services is particularly evident in
the context of negligence law. The duty of disclosure commands physicians to inform patients
fully of the risks involved in treatment and answer their questions regarding such risks; see Reibl
v. Hughes, [1980] 2 S.C.R. 880, at p. 884, and Hopp v. Lepp, [1980] 2 S.C.R. 192, at p. 210.
Physicians cannot discharge this obligation without being able to communicate effectively with
their patients. In the absence of sign language interpretation, there may well be cases where it
will be impossible for doctors to treat deaf persons without breaching their professional
responsibilities.
71 If there are circumstances in which deaf patients cannot communicate effectively with their
doctors without an interpreter, how can it be said that they receive the same level of medical care
as hearing persons? Those who hear do not receive communication as a distinct service. For
them, an effective means of communication is routinely available, free of charge, as part of every
health care service. In order to receive the same quality of care, deaf persons must bear the
burden of paying for the means to communicate with their health care providers, despite the fact
that the system is intended to make ability to pay irrelevant. Where it is necessary for effective
communication, sign language interpretation should not therefore be viewed as an "ancillary"
service. On the contrary, it is the means by which deaf persons may receive the same quality of
medical care as the hearing population.
72 Once it is accepted that effective communication is an indispensable component of the
delivery of medical services, it becomes much more difficult to assert that the failure to ensure
that deaf persons communicate effectively with their health care providers is not discriminatory. In
their effort to persuade this Court otherwise, the respondents and their supporting interveners
maintain that s. 15(1) does not oblige governments to implement programs to alleviate
disadvantages that exist independently of state action. Adverse effects only arise from benefit
programs, they aver, when those programs exacerbate the disparities between the group
claiming a s. 15(1) violation and the general population. They assert, in other words, 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.
73 In my view, this position bespeaks a thin and impoverished vision of s. 15(1). It is belied,
more importantly, by the thrust of this Court's equality jurisprudence. It has been suggested that s.
15(1) of the Charter does not oblige the state to take positive actions, such as provide services to
ameliorate the symptoms of systemic or general inequality; see Thibaudeau, supra, at para. 37
(per L'Heureux-Dubé J.). Whether or not this is true in all cases, and I do not purport to decide
the matter here, the question raised in the present case is of a wholly different order. This Court
has repeatedly held that once the state does provide a benefit, it is obliged to do so in a nondiscriminatory manner; see 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,
at pp. 1041-42, Native Women's Assn. of Canada v. Canada, [1994] 3 S.C.R. 627, at p. 655, and
Miron, supra. In many circumstances, this will require governments to take positive action, for
example by extending the scope of a benefit to a previously excluded class of persons; see Miron,
Tétreault-Gadoury, and Schachter v. Canada, [1992] 2 S.C.R. 679. Moreover, it has been
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