interpretation is a "medically required" service and hence a benefit under the Act. It is the
decision of the authority which has been delegated the power to determine whether a service
qualifies as a benefit that is constitutionally suspect, not the statute itself. The discretion accorded
to the Medical Services Commission does not necessarily or typically threaten the equality rights
set out in s. 15(1) of the Charter. This possibility that the Commission can infringe these rights in
the exercise of its authority is, however, incidental to the purpose of discretion, which is to ensure
that all medically required services are paid for by the government.
The Hospital Insurance Act should be read in conformity with s. 15(1). Hospitals are left with
substantial discretion as to how to provide the services listed in the legislation. No individual
hospital is required to offer all of the services set out in s. 5(1) of the Act. Further, individual
hospitals are given considerable discretion by the Act as to how the services they decide to
provide are delivered and they are not precluded from supplying sign language interpreters. The
fact that this Act does not expressly mandate the provision of sign language interpretation does
not render it constitutionally vulnerable. The potential violation of s. 15(1) inheres in the discretion
wielded by a subordinate authority, not the legislation itself.
Legislatures may not enact laws that infringe the Charter and they cannot authorize or
empower another person or entity to do so. Even though a legislature may give authority to a
body that is not subject to the Charter, the Charter applies to all the activities of government
whether or not they may be otherwise characterized as "private" and it may apply to nongovernmental entities in respect of certain inherently governmental actions. Governments, just as
they are not permitted to escape Charter scrutiny by entering into commercial contracts or other
"private" arrangements, should not be allowed to evade their constitutional responsibilities by
delegating the implementation of their policies and programs to private entities.
Two important points must be made with respect to this principle. First, the mere fact that an
entity performs what may loosely be termed a "public function", or the fact that a particular activity
may be described as "public" in nature, will not be sufficient to bring it within the purview of
"government" for the purposes of s. 32 of the Charter. In order for the Charter to apply to a private
entity, it must be found to be implementing a specific governmental policy or program.
The second important point concerns the precise manner in which the Charter may be held to
apply to a private entity. First, it may be determined that the entity is itself "government" for the
purposes of s. 32. This involves an inquiry into whether the entity whose actions have given rise
to the alleged Charter breach can, either by its very nature or in virtue of the degree of
governmental control exercised over it, properly be characterized as "government" within the
meaning of s. 32(1). In such cases, all of the activities of the entity will be subject to the Charter,
regardless of whether the activity in which it is engaged could, if performed by a nongovernmental actor, correctly be described as "private". Second, an entity may be found to attract
Charter scrutiny with respect to a particular activity that can be ascribed to government. This
demands an investigation not into the nature of the entity whose activity is impugned but rather
into the nature of the activity itself. In such cases, the quality of the act at issue, rather than the
quality of the actor, must be scrutinized.