Hospitals, in providing medically necessary services, carry out a specific governmental
objective. The Hospital Insurance Act is not simply a mechanism to prevent hospitals from
charging for their services. Rather, it provides for the delivery of a comprehensive social program.
Hospitals are merely the vehicles the legislature has chosen to deliver this program.
A direct and precisely defined connection exists between a specific government policy and the
hospital's impugned conduct. The alleged discrimination --the failure to provide sign language
interpretation -- is intimately connected to the medical service delivery system instituted by the
legislation. The provision of these services is not simply a matter of internal hospital management;
it is an _expression of government policy. The Legislature, upon defining its objective as
guaranteeing access to a range of medical services, cannot evade its obligations under s. 15(1)
of the Charter to provide those services without discrimination by appointing hospitals to carry out
that objective. In so far as they do so, hospitals must conform with the Charter.
As well, the Medical Services Commission, in determining whether a service is a benefit under
the Medical and Health Care Services Act, implements a government policy, namely, to ensure
that all residents receive medically required services without charge. There is no doubt that in
exercising this discretion the Commission acts in governmental capacity and is subject to the
Charter.
As deaf persons, the appellants belong to an enumerated group under s. 15(1) -- the
physically disabled. There is also no question that the distinction drawn between the appellants
and others is based on a personal characteristic that is irrelevant to the functional values
underlying the health care system -- the promotion of health, the prevention and treatment of
illness and disease, and the realization of those values through a publicly funded health care
system.
The only question in this case is whether the appellants have been afforded "equal benefit of
the law without discrimination" within the meaning of s. 15(1) of the Charter. On its face, the
medicare system applies equally to the deaf and hearing populations. The appellants' claim,
nevertheless, is one of "adverse effects" discrimination, protection against which is provided by s.
15(1) of the Charter.
A discriminatory purpose or intention is not a necessary condition of a s. 15(1) violation. A
legal distinction need not be motivated by a desire to disadvantage an individual or group in order
to violate s. 15(1). It is sufficient if the effect of the legislation is to deny someone the equal
protection or benefit of the law.
Adverse effects discrimination is especially relevant in the case of disability. In the present
case the adverse effects suffered by deaf persons stem not from the imposition of a burden not
faced by the mainstream population, but rather from a failure to ensure that deaf persons benefit
equally from a service offered to everyone. Once it is accepted that effective communication is an
indispensable component of the delivery of a medical service, it is much more difficult to assert
that the failure to ensure that deaf persons communicate effectively with their health care
providers is not discriminatory. To argue that governments should be entitled to provide benefits