96 A declaration, as opposed to some kind of injunctive relief, is the appropriate remedy in this
case because there are myriad options available to the government that may rectify the
unconstitutionality of the current system. It is not this Court's role to dictate how this is to be
accomplished. Although it is to be assumed that the government will move swiftly to correct the
unconstitutionality of the present scheme and comply with this Court's directive, it is appropriate
to suspend the effectiveness of the declaration for six months to enable the government to
explore its options and formulate an appropriate response. In fashioning its response, the
government should ensure that, after the expiration of six months or any other period of
suspension granted by this Court, sign language interpreters will be provided where necessary for
effective communication in the delivery of medical services. Moreover, it is presumed that the
government will act in good faith by considering not only the role of hospitals in the delivery of
medical services but also the involvement of the Medical Services Commission and the Ministry
of Health.
Disposition
97 I would allow the appeal. Costs are awarded to the appellants from the respondents
throughout. I would answer the constitutional questions as follows:
1 Does the definition of "benefits" in s. 1 of the Medicare Protection Act, S.B.C. 1992, c. 76,
infringe s. 15(1) of the Canadian Charter of Rights and Freedoms by failing to include medical
interpreter services for the deaf?
No.
2 If the answer to question 1 is yes, is the infringement demonstrably justified in a free and
democratic society pursuant to s. 1 of the Canadian Charter of Rights and Freedoms?
Given my response to question 1, it is not necessary to answer this question.
3 Do ss. 3, 5 and 9 of the Hospital Insurance Act, R.S.B.C. 1979, c. 180, and the Regulations
enacted pursuant to s. 9 of that Act, infringe s. 15(1) of the Canadian Charter of Rights and
Freedoms by failing to require that hospitals in the Province of British Columbia provide medical
interpreter services for the deaf?
No.
4 If the answer to question 3 is yes, is the infringement demonstrably justified in a free and
democratic society pursuant to s. 1 of the Canadian Charter of Rights and Freedoms?
Given my response to question 3, it is not necessary to answer this question.
Appeal allowed with costs.
Solicitors for the appellants: Heenan, Blaikie, Vancouver.
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