analysis would be more complicated. In such a case, it would be necessary to consider the
interaction between s. 15(1) and other provisions of the Constitution, specifically those related to
the language obligations of governments. Moreover, the respondents have presented no
evidence as to the potential scope or cost of an oral language medical interpretation program. It is
possible that the nature and extent of any reasonable accommodation required for hearing
persons under s. 1 would differ from that required for deaf persons. Thus, any claim for the
provision of such a program, whether based on national origin or language as an analogous
ground, would proceed on markedly different constitutional terrain than a claim grounded on
disability.
90 Further, it is apparent that deaf persons stand in a special position in terms of their ability to
communicate with the mainstream population. As I have discussed, it is extremely difficult for
many deaf persons to acquire a high level of proficiency in oral languages, whether in spoken or
written form. Moreover, it is apparent that the deaf have particular difficulties in obtaining the
service of persons in the community who understand sign language. There is no evidentiary basis
from which to assess whether non-official language speakers stand in a similar position. So,
without wishing to minimize the difficulties faced by hearing persons whose native tongues are
neither English nor French, it is by no means clear that the communications barriers they face are
analogous to those encountered by deaf persons. As a result, the success of a potential s. 15(1)
claim by members of the latter group cannot be predicted in advance. The possibility that such a
claim might be made, therefore, cannot justify the infringement of the constitutional rights of the
deaf.
91 The respondents also contend that recognition of the appellants' claim will have a ripple
effect throughout the health care field, forcing governments to spend precious health care dollars
accommodating the needs of myriad disadvantaged persons. "Virtually everyone in the health
care system who is denied a service", they submit, "will either be medically disadvantaged or
could argue that a medical disadvantage will arise from the lack of service." Similarly, in his
concurring opinion in the Court of Appeal, Lambert J.A. observed that many of the medical
services and products required by the disabled are not publicly funded. In these circumstances,
he asserted, governments must have the freedom to allocate scarce health care dollars among
various disadvantaged groups.
92 These arguments miss the mark. If effective communication is integrally connected with the
provision of health care -- a point that Lambert J.A. accepted --then the fact that there are number
of medical services that benefit disabled persons that are not covered by medicare is immaterial.
The appellants do not demand that the government provide them with a discrete service or
product, such as hearing aids, that will help alleviate their general disadvantage. Their claim is
not for a benefit that the government, in the exercise of its discretion to allocate resources to
address various social problems, has chosen not to provide. On the contrary, they 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. To deny the appellants' claim on such conjectural grounds, in my
view, would denude s. 15(1) of its egalitarian promise and render the disabled's goal of a barrierfree society distressingly remote.
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