SPER Committee Meeting

SUB-COMMITTEE ON THE STATUS OF PERSONS WITH DISABILITIES OF THE STANDING COMMITTEE ON HUMAN RESOURCES DEVELOPMENT AND THE STATUS OF PERSONS WITH DISABILITES

SOUS-COMITÉ SUR LA CONDITION DES PERSONNES HANDICAPÉES DU COMITÉ PERMANENT DU DÉVELOPPEMENT DES RESSOURCES HUMAINES ET DE LA CONDITION DES PERSONNES HANDICAPÉES

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, May 03, 2000

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[English]

The Chair (Ms. Carolyn Bennett (St. Paul's, Lib.)): We'll call the meeting to order. This is, pursuant to Standing Order 108(3)(c), a study of matters relating to the proposing, promoting, monitoring, and assessing of initiatives aimed at the integration and equality of disabled persons in all sectors of Canadian society, from the Eldridge decision.

We are thrilled to have the panel. Certainly the committee felt strongly that we needed to know where we were at and what some of the possible solutions or initiatives might be.

What we usually do is have short interventions of maybe five or seven minutes or something like that, and then we end up with lots of time for questions.

If it's all right with the panel, we'll start with Mr. Vlug and then go to Mr. Baker, then Mr. MacDougall, and then Ms. Rioux.

Mr. Henry Vlug (Individual Presentation) (Interpretation): Thank you very much for inviting us. It's an honour to be here. I have been here in the past, quite a long time ago in fact. I guess that's part of the problem: we keep coming back, and very little changes. I hope it's not forever that there's no change.

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In discussing the Eldridge case, it is very frustrating to us. In the first place, it should never have gone to court. A lot of discussion had happened before the court case, and we tried to avoid having to end up in court, but the government was quite stubborn on the issue. It should have been settled long before it got to court. It took more than seven years to settle the court case and to get a final decision. Even though we have a decision, there is still great frustration and very little has changed. There are some changes in some places, but most of Canada has seen little change.

We have some papers to give out connected to the situation in medical interpreting in British Columbia. I hope you've received that. It's not that plastic-covered document; it's a document that looks like this. It might look slightly different, but I did send it out.

The Chair: The document under Mr. Vlug's biography: “Medical Interpreting Services (MIS) of Western Institute”?

Mr. Henry Vlug (Interpretation): Yes, that's it; that's the one. That's what's happening in British Columbia now. It's the current situation. It's pretty good. It's not perfect. We're still working on it. Problems still surface from time to time, and we fix them as they come up.

That's the only place where that is happening. In Ontario, I was recently told, the hospital has said no. They refuse interpreters to a deaf person. Still today that's happening here in Ottawa. Gary Malkowski has been talking with someone in the Ontario government, and the people there have said “No, that decision only affects British Columbia. It does not apply in Ontario.”

There are a lot of problems across Canada. We know the order itself was of course for medical interpreting in British Columbia. However, the decision itself was much broader than that. It was related to all government services for all disabled people, not just the deaf.

British Columbia went about setting up medical interpreting and got some advice. They've met with me a few times, and I've said don't worry about medical interpreting, focus on all government interpreting services. they refused to focus on that. They refused. They said they would only look at medical interpreting.

So we had to go and file a complaint with Human Rights against them. I've given you another paper about that. It's a circular from Court Services. We had to go and file that complaint with Human Rights. That's been settled through mediation, and they agreed to give interpreters to Court Services only, and only in litigation. If a deaf person wanted to go and watch the proceedings in court, because they're not a litigant, they could not have an interpreter. I, a deaf lawyer who needs an interpreter, am refused that service.

I have said to them the complaint was not against Court Services; it was against the government interpreting services, who refused to give interpreters in general. I had to settle that case, because there was a trial coming up. So I settled it and went to trial and won that trial. But there is still another human rights case that's live, and it's about me, the lawyer who's deaf, trying to get government interpreting services. But it's very, very frustrating.

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A big part of the problem has been the hearing people, the hearing people who make the decisions. Deaf people are brought in as consultants from time to time, but it's very superficial. They're never involved, never truly involved. There are no deaf people really working for the federal government or the British Columbia government who are involved in these decisions. They have no decision-making power relative to the deaf.

There may be protests. Yes, there may be deaf people working in other jobs, but a deaf person really involved...? They are not allowed to make a decision that has anything to do with deaf people. It's one of the biggest problems.

Once the deaf get involved, I believe there will be fewer problems.

I could go on for hours with all of these frustrations, but I'll leave it to my colleagues here to present, and then we'll be open to questions.

Thank you.

The Chair: Thank you very much.

Mr. David Baker (Individual Presentation): I didn't want to assume that the committee was necessarily familiar with the Eldridge decision. I don't know if it would be helpful to have a two-minute primer on what was involved. I'll just mention that I was involved as counsel to the Council of Canadians with Disabilities, the Canadian Hearing Society, and CAD in the case. It was decided in October 1997, so we're now two and a half years on from the date of the decision.

The Supreme Court of Canada surprised many people by finding that the failure of doctors in hospitals in the province of British Columbia to provide the means of effective communication with deaf patients constituted a discriminatory barrier or a failure to accommodate people with disabilities—in this case, deaf persons in the province.

The court's guiding principle in reaching its decision was that all people were to be provided with equal access to services. In this case, they chose the term “effective communication” to describe what was required in order to provide deaf patients with equal access to health care services.

Since that time, other provinces have not followed British Columbia, but I think Professor MacDougall is in a much better position than I to comment on that.

But it's certainly important that we're here today, two and a half years later, with the knowledge that we've gone all the way to the Supreme Court of Canada on an issue. We have a very clear statement from the court, and other provinces have chosen not to follow.

I'll try to make three points, briefly.

Number one, it's not enough to leave issues like this to litigation and, in particular, to litigation under the charter.

Number two, as in so many other areas, if there is going to be change in these areas, it will require government action. There is no other place one can expect change to come from.

Thirdly, once the court or Parliament establishes what the principles are, there is a need for mechanisms that will address these issues systemically. If we don't have that, what we will have is what we have now—a piecemeal solution to a national problem.

First of all, with respect to using litigation, it should be clear to everyone that for disadvantaged groups such as members of the disabled community, it's extremely difficult to launch litigation.

In this case in the Supreme Court of Canada, the plaintiffs were represented by counsel who—I believe it's widely known—was acting pro bono. The times that's going to happen are few and far between. There is no way that people's rights should be determined by a lawyer's willingness to act without pay. It's important to acknowledge the existence of the court challenges program, but we should recognize that this applies only to certain federal areas of jurisdiction.

Moving on from there, I think we have to understand how limited the courts are in regard to solving these kinds of problems. The results are going to be unpredictable. The courts are extremely hesitant to get involved in issues where there are substantial policy and financial issues. The courts understandably say they will be criticized in the national media if they go too far down this road, so it's expected that litigation is to be used as a last resort, not the first line of offence or defence in asserting rights.

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In this case, I think it's fair to say that the last resort was reached because the legislature in British Columbia did not respond to a very real need. I would say that litigation is a signal that the disabled community has been failed by their elected representatives.

A second point with respect to the role of government—I don't think there's any polite way of saying this—is that this is not going to be resolved and people are not going to have equal access unless government assumes responsibility in these areas. Medicare, hospitals, and doctors are not looking for new things to add to their budgets. They're not looking for new customers who might otherwise go unserviced; this is a money-saver rather than a money-raiser for public institutions. I think it's fair to say that this applies, if not more so, in the private sector.

So we have a situation where government must act if there is to be any progress made. I don't believe there can be any debate about it. Even Republican administrations in the United States, which have shown significant leadership in these areas, recognize that, so we had Ronald Reagan and George Bush, under their presidencies, providing significant leadership, so much so that the Supreme Court of Canada, in its decision in this case, cited the standards of the Americans With Disabilities Act for effective communication in health care settings in their judgment. They were relying on the legislative initiatives of others.

I think we should be aware that Canada has gone from being a leader in a number of these areas in the early 1980s to being a follower. We should, as in so many other areas, have an international perspective. Looked at internationally, we have allowed ourselves to fall behind.

Finally, with respect to systemic responses, the late Chief Justice of Canada, Brian Dickson, was invited by the Ontario government to come and speak to it about the need for systemic equality legislation for people with disabilities. In his presentation, which was subsequently published in The Toronto Star, he said that the Supreme Court of Canada should not have to repeat itself.

By that, he meant that once the Supreme Court of Canada has made a statement as to what it is citizens can expect, and once the principles are clearly established, it is the responsibility of the legislators to pick up those principles, to eradicate discrimination, and to implement a principled approach. We shouldn't be left to the idiosyncratic kinds of responses you get through the courts.

So here we have someone out of the courts, whose whole life was dedicated to the litigation process, talking about the relationship between the courts and, in particular, a decision such as this and the subsequent responsibility of legislators.

Let me just make four quick points.

Number one, with respect to this particular issue, the Canada Health Act has as one of its cornerstones the principle that all Canadians should have access to health services and should not be restricted for financial or other reasons. Clearly, discrimination in means of communication with one's physician is an access issue for deaf people. It is an area where the federal government can and should provide leadership.

There's no indication that the federal government has been prepared to assert its powers under the Canada Health Act in this area, although I'm certainly encouraged that Professor MacDougall's report was sponsored by Health Canada. I would hope it could be used in the future, whether by simply putting provinces on notice that this is the federal expectation, or by developing regulations, such as was done in relation to user fees.

That would be my first suggestion: a specific response is called for. The federal government has responsibility—has given itself a responsibility—in this area under the Canada Health Act.

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Secondly, the Eldridge decision of course extends much more broadly than the issue of sign interpretation. There are issues, such as transportation—one person, one fare—which this committee has looked at in the past. It was something that was recommended by the predecessor of this committee in the first Obstacles report in 1981, and we're still waiting, 19 years later, for some action. The Canadian Transportation Agency has lost its power to regulate. The predecessor to the CTA had the power to regulate. Now the power is subject to Privy Council Office intervention. The federal government has vetoed regulations since 1993.

I would suggest that the way to respond is to give the CTA the power once again that the Canadian Transportation Commission had through the eighties to establish and enforce standards governing access to transportation. Otherwise, there is no transparent process available to people with disabilities through which to ensure access to transportation.

The third area I would like to touch on briefly is the Canadian Human Rights Commission. I think it is fair to say that the commission has not provided leadership on systemic issues; it has been absorbed with dealing with matters on a case-to-case basis. To a significant extent, this is a function of resources, under-resourcing the human rights process, which is there as Canada's mechanism for barrier removal. The La Forest commission is to report, I believe, in June, and I would ask this committee to look seriously at its recommendations, in particular recommendations that deal with implementation of systemic removal of barriers. The commission itself has asked for these powers in its most recent annual report, so it's not something the commission is not amenable to.

Again, briefly, the specifics: use the Canada Health Act to demonstrate federal leadership on the issue of accessibility; give the Canadian Transportation Agency power to develop standards without a Privy Council Office veto, so as to remove the less-than-transparent process we have today; implement reforms to the Canadian Human Rights Act; support the commission's desire to develop systemic mechanisms for change; and finally, maintain the court challenges program and if possible extend it to cover matters of provincial jurisdiction, or, if that's not possible, through the process of legal aid reform, which is currently ongoing, find mechanisms to fund provincial legal aid programs to engage in systemic human rights litigation.

Thank you.

The Chair: Thank you.

Dr. MacDougall.

Dr. Jamie MacDougall (Director of Research, Institute of Rehabilitation, Research and Development, Ottawa): Thank you very much.

I hesitate to say what I'm going to say, because it's going to contradict some of the things we've heard already. Perhaps some of that will be good to get some discussion going.

I must say that before I did the national study on the impact of Eldridge, I had one point of view, and after I actually went to the provinces and spoke to everybody, I had another point of view. As a result, I sort of changed my mind about how we should react to the Eldridge decision.

In the first place, I'm not a legal person, I'm a psychologist, and for the life of me I can't see that the Eldridge decision says anything more than that sign language interpretation has to be provided for deaf people in hospitals. I see that as a tremendous victory for deaf people. First of all, it completely recognizes sign language as a legitimate language, which is a moral victory, and it does provide a legal basis for access to the health system, which I think is extremely important. I'm told by my legal friends that it must also mean all kinds of other access, and I'm sure it does.

It seems to me that as I travelled across the country, it is true that British Columbia was the first province to give an actual response to Eldridge. They allocated substantial sums of money. They formed an advisory committee, of which Henry spoke, and so on. Certainly there are always problems in service delivery.

In Alberta they immediately formed a committee. This was discussed, and they felt they had a policy already that was in compliance with Eldridge. As far as I can see, it was in compliance. All of this is in my report.

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Saskatchewan actually created a new policy, so there was action there when I went there. All kinds of officials met with me. They had issued memos to comply and so on. On the actual service delivery, I'm not there, but to say that nothing is happening I don't really think is correct.

In Manitoba they actually formed a new policy and made a contract with the independent interpreter agency there in Winnipeg, which was a long time in negotiation but which was apparently satisfactory to everybody, including the deaf community.

In Ontario there have been prolonged discussions. We're certainly on the cusp of an announcement from Ontario, and it seems clear that substantial sums of money will eventually be released. There have been officials in Ontario who have devoted their entire job to this, and there's certainly been consultation. It's been a very difficult process, but I don't think it's correct to say that nothing is happening; it's just taking a while to do.

Quebec felt that they were already in compliance with Eldridge. They have all kinds of policies and procedures. They allocate a lot of money to sign language interpretation. They have a system that covers the whole province. Again, there are certain problems in service delivery and so on, but they definitely have a system in place.

New Brunswick have a system and feel they are totally in compliance. Again I'm just speaking about Eldridge: sign language interpretation access to the health system. Their problem is getting qualified interpreters, the shortage of interpreters. The government is certainly supporting.

P.E.I., because of their size, has trouble with certain aspects of compliance. And in Newfoundland they have some problems. I dealt with the Northwest Territories and Yukon and so on. They're all making efforts to do something.

So I don't think much is to be gained by saying that the provinces and the people responsible are not trying to do something. They are trying to do something, and progress has been made since the Eldridge decision, in my view. Certainly there could be a lot more progress.

I feel that we can't really wait around for government to somehow take the bull by the horns. I think we in the field are a bit remiss here. I think we have to come forward with concrete proposals and a concrete plan for Eldridge, and I don't think that's been forthcoming. I hold myself as responsible as anybody else. I think that from the government point of view there are many funds. We know there's a shortage of interpreters. We know we need more interpreter training, more specialized interpreter training. Somehow, nationally we have to do something about that.

We know that multiply disabled deaf individuals have special needs. We know that the hospitals are not knowledgeable. I work in two hospitals here in Ottawa, and I can tell you that a committee was formed to comply with Eldridge and we feel we are in compliance. I've done staff training here, and the Canadian Hearing Society has done staff training here at the two hospitals I'm associated with. So I'm sure there are problems in service delivery, but it's just not true that people aren't trying. At the hospitals I didn't find any resistance. Yes, we are restructuring, but I found them all wanting to do something. They're waiting for the announcement from Ontario and so on.

An issue that all the provinces brought up was mental health. That is a very specific issue in interpreting. A deaf person does not always want an interpreter in mental health; they want qualified mental health professionals. That's something I think we can have projects on and we can make progress on.

For me, Eldridge is let's do something about access to health for deaf people. Let's do it for other physical disabilities, let's do it in other areas, but let's not forget what Eldridge was all about.

I think there are many concrete things we can do. I think there are technological solutions we can apply here. I think the needs in the north among the aboriginal community and so on are severe in this area. They want something to be done. I think there are moneys available from the federal government; we just have to focus and try to make it happen.

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So I guess my message is that I was a little surprised. It was easy enough to criticize everybody and criticize the provinces, but when I went on the ground, I found there was concern, there were problems, and the provinces were looking for federal-provincial cooperation. They were looking for the federal government, whether through the health department or other departments, to collaborate to improve services.

It is true that they take a very narrow interpretation of Eldridge. They want to comply with the law. I say fair enough, let's work with them and make sure this happens, and then go on to step two.

Thank you.

The Chair: Ms. Rioux.

Ms. Marcia Rioux (Researcher Associate, Robarts Centre for Canadian Studies, York University; and Graduate Faculty, School of Social Work, York University): It's interesting, if you give four people one question, to hear what comes out.

I tend to be somewhat optimistic about Eldridge as well. I'm going to step back and talk about it from a slightly broader perspective.

I think the Eldridge decision takes note of and accepts notions of equality that are reflected in principles that have been espoused by the disability rights movement both nationally and internationally for 15 or 20 years. It rejects a nominal approach to ensuring citizenship and entitlement in Canadian society. We don't have many Supreme Court decisions that do that.

It counters some of the myths and reflects a paradigmatic shift away from the view that disability is a personal problem, that it's the responsibility of the individual, and the issues of exclusion and institutionalization that have resulted from that kind of notion, shifting from a kind of medical welfare model to a human rights model. It's only recently that we have the Eaton decision, which very clearly reflected a medical welfare model.

So the court's making that shift is important. It may not have made the world perfect to have this decision, but I think there's both a symbolic and practical importance to the court's doing this. Strengthening the contention that disability is a human rights issue and that it's an issue of equality in the most expansive sense is very important to people in the field who've been working toward that for a long time now.

There are a number of particular points the court made that support a human rights perspective and suggest a wider application of the findings. I'll just go over these very briefly.

First is the court's holding that once the state provides a benefit, it's obliged to do so in a non-discriminatory manner. This is important because it gives recognition to the entitlement of people with disabilities to government benefits, an entitlement that is not discretionary or charitable. It recognizes the status of people with disabilities to receive what others receive as a claim, and not as government largesse.

As most of you know, when you study the policy, programs, and services for people with disabilities, most of them are still provided in a manner of government largesse, not entitlement. So people with disabilities get out of their role as supplicants or charity cases in relation to the benefits.

The second point that has relevance in supporting a human rights framework within which to view disability is the strong declarations of Justice La Forest about the interpretation of equality that the charter protects. The denial of equality in Eldridge arose from the failure of the government to take action. So it wasn't a burden that was imposed, it was a failure of the government to do something.

The discrimination arose from the adverse effects of a public benefit scheme that failed to provide the same level of service. This would be consistent with interpretations under the Canadian Human Rights Act, but it's important that's clearly part of the constitutional understanding of equality.

Justice La Forest made a very clear statement in this decision that I think is very critical, and I'll quote him. He said:

To argue 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 bespeaks a thin and impoverished vision of s. 15(1). It is belied, more importantly, by the thrust of this Court's equality jurisprudence.

That, no doubt, will come up in subsequent cases under the charter. The important principle here is that there is a positive obligation on the government to remedy inequality, notwithstanding that the benefit scheme appeared neutral and the remedy means the government will have to spend money.

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The third issue of relevance to a human rights framework is the importance and centrality that the court placed on reasonable accommodation as a cornerstone of ensuring equal benefit. David mentioned this as well.

The court included accommodation as a central element of subsection 15(1), and of course endorsed the principle that governments have to spend money to remedy inequality. Now, the amount involved in Eldridge is obviously very small. The court said it would be no more than $150,000, which is nothing in relation to the medical budget of the Province of British Columbia, or in fact the medical budget of Canada.

The court didn't make a clear ruling that the government should not be able to limit services that are fundamental to equality rights on the basis of cost, something that could be argued for in subsequent cases, and ought to be. But the court did make clear that it is the failure to provide reasonable accommodation that results in discrimination. It's not the disability.

The fourth issue of importance in terms of a human rights framework is the court's finding that governments should not be allowed to evade constitutional responsibilities by delegating—and I'm quoting them—“the implementation of their policies and programs to private entities”. This is really critical in terms of looking at this from a broader perspective. It gave broader scope to the applicability of the charter through its analysis of what constituted government action.

This is particularly important as we see increasingly the offloading, decentralization, and privatization of services that are providing government programs. This could have implications for other services that are carried out by private for-profit, private not-for-profit, or quasi-governmental organizations providing government-mandated services. As there's a shift in who's actually providing a service, I think this should take on more relevance.

The fifth and final issue of importance that I wanted to talk about is the court's holding that effective communication is an indispensable component of the delivery of a service. It's important to recognize the systemic nature of the discrimination against people with disabilities and that the discrimination cannot be redressed without changes to the definition of the services government provides. Again, in almost every brief disability rights organizations have presented to the government for 20 years, that's been a key point.

The court began its analysis with the recognition of the historical exclusion and marginalization of people with disabilities to do that. It's interesting that this decision is compatible with recent initiatives in international law and with the kinds of initiatives Canada has promoted internationally.

I think it's really important that it provides a very substantive human rights lens through which to evaluate government programs and policies, and I would suggest that it might be possible for this committee to think about ways they might be able to start to ensure that the government uses that human rights lens to look at its own policies. I would think it might be an interesting idea, perhaps, to recall all the government witnesses you've had in the past 10 years and ask them if they wouldn't like to indicate how they're now ensuring that their policies, programs, and services are in line with the Eldridge decision.

Thank you.

The Chair: Thanks very much.

We'll start with the questions.

Mr. Peter Adams (Peterborough, Lib.): Madam Chairman, could you please put me on the list?

The Chair: Yes, we will.

Mr. Maurice Vellacott (Wanuskewin, Canadian Alliance): I came in a little bit into your presentation here, Marcia, but I did have a question.

If I understood you correctly, you were saying there was no possibility of a government taking seriously the responsibility and then contracting for someone else to provide service? Is that correct? Do I understand you?

Ms. Marcia Rioux: Yes, that's right. I should probably let David...it's a legal point. I should probably refer that question to you.

But the court was quite clear that the fact that the hospitals were running their own show, as the case may be, didn't relieve them of the requirement to abide by the Charter of Rights and Freedoms.

David, I'll let you add to that.

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Mr. David Baker: I think it's substantially the point that a public function performed by a private body is still covered by the charter when it's part of an overall government program or objective. It was news to lawyers and the public, because there had been decisions saying hospitals were not covered by the charter prior to that decision.

Ms. Marcia Rioux: They're saying that who performs the function is not as important as what the function is and its purpose and objective.

Mr. Maurice Vellacott: Okay, so if I understand you correctly, it would mean that if a hospital has a staff of several people, it's not critical that they have the people hired on retainer day in and day out, necessarily, but that they hire somebody to provide that. Is that possible?

Mr. David Baker: Yes. The court is much more interested in the overall effect.

Mr. Maurice Vellacott: Exactly.

Mr. David Baker: If there's to be equal access, then it's who actually provides the service in an instrumental sense.

Mr. Maurice Vellacott: Okay. Thank you.

[Translation]

The Chair: Your turn, Madam.

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): First of all, I wish to thank you for being here this afternoon. With such a nice weather, it is a pleasure to be inside.

Parliament is presently reviewing the Human Rights Act. It is obvious that this legislation might have an important impact on disabled persons= rights.

From listening to you, I understand that the Eldridge decision is particularly focussed on services required by a deaf person to communicate adequately with health professionals. This is really the purpose of that decision. On the other hand, its scope could be enlarged. This is also what I understood.

Do you think it might be possible, in reviewing the legislation, to broaden it to services other than those targeted by the Eldridge decision? And what kind of pressure could result in a better review of that legislation so that it would meet the needs of the disabled community, which is becoming increasingly larger and better organized?

[English]

Mr. David Baker: Since I raised the issue of the Canadian Human Rights Act, perhaps it's appropriate that I respond first, although I'm sure others will have comments.

I believe the review madam is referring to is the La Forest task force. That report will be received in June. I know that representatives of the Council of Canadians with Disabilities made representations to the task force requesting, first of all, that resources be made available, and secondly, that emphasis be placed on cases like Eldridge.

There are decisions like Eldridge that can be taken in relation to captioning of television, issues such as those Henry addressed about access for deaf lawyers in federal courts. There are any number of issues in the area of transportation where the commission could have been taking initiatives. While we have had this legislation in place for 23 years, we have not seen the commission providing that kind of leadership. It's been the Supreme Court of Canada in a charter case, the Eldridge decision, where we have seen that leadership provided.

The hope is that the La Forest task force will bring forward recommendations that are implementable and will allow and require the commission to provide the kind of leadership that at the present time seems to be coming only from the court and only in a very limited number of cases, because it's so difficult to bring those issues up through the courts.

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The Chair: Ms. Lill.

Ms. Wendy Lill (Dartmouth, NDP): Thank you very much.

I'd just like to make a comment on the fact that we've heard from four people. We've heard from Henry Vlug, who said their problem is hearing people. In his estimation, as a deaf person, he does not feel this issue is moving along with any effectiveness. So it's important that we hear from the community as to whether or not they believe there has been any success on this issue.

I have a question on the briefing notes we received as a committee. There are two statements here and they're contradictory. One says: “The Court found that affordability, or undue hardship is not relevant in determining whether or not discrimination occurs under section 15.” Later on it says: “This obligation, however, would be limited where removing the barriers would cause undue hardship....”

I'm just trying to figure out which it is. Is this just another duty to accommodate, unless it's undue hardship, in which case we know we're all sunk, because undue hardship seems to be an issue of finances and there's no money out there. So I need to know the answer to that, and then I have one other question.

Ms. Marcia Rioux: It's a terrific question. Nobody knows the answer, because Justice La Forest did not make it clear for us.

This is one of the issues we have around the case. He said there would definitely be an issue around undue hardship; that they had to reasonably accommodate, and you could reach a point where there might be undue hardship. But in this particular case the cost was very low and the defence of the B.C. government was that if they extended this benefit in this case, they'd have to extend it for everyone who didn't speak English. He said you can't use a speculative criterion as a basis for what is potential or future undue hardship.

He imposed a duty on government to spend money, but in this case he based it almost entirely on the low cost of hearing interpreters. So we don't know what the cost would be that would make it undue. Of course, that's why it's still really important that we get a statement at some point from the court that says you can't do a cost-benefit analysis for equality.

Ms. Wendy Lill: I'd like to look at another area of accessibility and equal rights, and that is the area of education. I live in a province where they are cutting deeply into the educational budgets, and special education services will be decimated. I know hundreds of people, hundreds of children, who will no longer have teachers' assistants, which they require to have equal access to education. I actually have a son who is one of them, so I'm very interested in this. It seems to me that my son's rights as a citizen are going to be violated very seriously, very shortly.

I understand that the Supreme Court doesn't believe they should have to repeat themselves. Is it possible to take charter cases of a parallel nature, with regard to education, to the Supreme Court, or would that ruling have been considered to be already in place?

To all sorts of people who want to know how far we can extend this, Henry might say we can't extend it anywhere because we're not getting anywhere with this, but I'd like to know where we can conceivably go if we have the will of legislators and everybody on side.

Mr. David Baker: I'll jump in.

First of all, I'd like to apologize to Professor MacDougall. I did not have the opportunity to review his report and I took a very Ontario-centric, if I may say, view as to what I assumed was the case there, and I apologize to him for that. I know there's litigation ongoing in Ontario, and the Supreme Court of Canada may have to repeat itself, although hopefully not.

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For me, that doesn't change the fact that the federal government, through the Canada health and social transfer, is supporting education, is supporting health. Through the Canada Health Act, it has imposed upon itself certain obligations to ensure that national standards exist in the health care field.

It is certainly my view that when discussing accessibility, it should be a responsibility of the Minister of Health and the federal government to establish standards of accessibility in relation to not only effective communication but all other aspects in which discrimination against persons with disabilities is a factor.

In my view, the only difference between education and health is the existence of the Canada Health Act. There is nothing comparable in the area of education. However, I think we all understand how shocked and outraged the public would be if the federal government were funding a province that discriminated blatantly on the basis of race within an education system. These issues have arisen in the United States, where the federal government refused to fund segregated education systems. I think the same kind of responsibility could be assumed by the federal government for providing leadership.

It would be easier in relation to health because it could be done under the Canada Health Act and it need not be focused exclusively on the issue of sign interpreters. It could be a much broader statement: what is meant by accessibility under the Canada Health Act term includes equal access to health care for persons with disabilities. That could be done in the area of education, and perhaps it should be done, but I would suggest that's an additional step to be taken there.

Ms. Wendy Lill: Thank you.

Mr. Henry Vlug (Interpretation): I'd like to add something following up on this question and the comments from Mr. Baker.

First, yes, I do agree with your comments, but the federal politicians and the approach to Alberta's taking away the money for medical services.... Many provinces are not providing appropriate access for interpreters for deaf people. The federal government should take that money away and provide it at the federal level. That would be one way to do it.

In terms of your problem with your son, today I was talking with another person who has exactly the same problem here. They had a meeting in Ontario and they were given two choices. They said “We only have x number of dollars. Do you want to use it for special needs or do you want to use it for something else? It's an either/or situation.” At the meeting they decided they wouldn't use it for special needs; they would use it for something else.

If you go to human rights, or if that person goes to the Human Rights Commission, it might be four, five, or six years later before you get a decision in your favour. In the meantime, your son is going to be suffering just as this other child will be suffering, and that's not right.

The human rights process has to be improved as well. It should not be taking four to six years for a decision. It should be three months, six months maximum. That's a very important thing right now. The review under the Canadian Human Rights Act will finally make the act work, I hope, and not cause these delays of four to six years.

Ms. Wendy Lill: Thank you.

Dr. Jamie MacDougall: Can I answer your question too?

Ms. Wendy Lill: Sure.

Dr. Jamie MacDougall: I have two things, one on education and the other on people's hearing status.

I really think the next thing to be tested in terms of an important thing would be education, especially in the field of deafness and in the other areas of disability. But another important zone is the zone that nobody takes responsibility for, before education comes in, in the early intervention. Then the question becomes whether that's health, education, or social service. These early intervention programs are so important, yet we can't seem to find any basis in law to prevent discrimination there and it seems to carry right into the education system. I don't think it's really been tested. Eaton didn't really test that, I don't think.

On the issue of hearing status, with due respect for Henry's view, I don't think it's the person's hearing status that's important in breaking down barriers in deafness or disability and so on. I think it's a higher order function. It's what we think, what we do, what our attitudes are, and so on. It's not the fact that people are hearing that they're not doing the right thing. I think that's an important distinction to make.

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Ms. Marcia Rioux: Could I just make one point on the decision between this case and a case like Eaton? I think it's fairly important.

There is no parallel system of health, but there have been parallel systems of education. In the argument the court is making around health, communication is essential to actually receiving health care. A court could argue that because there are parallel education systems, in fact you don't have the same kind of obligation. I don't agree with the argument, but it's an argument that could be made and it is a distinction between those two cases.

Ms. Wendy Lill: Could you explain that? I don't understand what you mean by that. What is a parallel system? I'm just not following that.

Ms. Marcia Rioux: There's a parallel system of education in terms of, for example, special schools for children with intellectual disabilities. There are schools that are specifically designated for people who are deaf. So there are parallel systems. There's no such parallel system for health, and I think nobody would conceive of setting up a parallel medical system.

Ms. Wendy Lill: But we no longer have a parallel system. We now have a so-called inclusive education system, where all persons, whatever their needs are, however able they are, are all together. So I would say there is no longer that....

I'm very interested in the idea of a national education act. If in fact you see certain areas of the country that are operating.... I'm not trying to take this too far off, but the fact is that the cuts that are now happening in education in Nova Scotia are starting way lower than where Harris stopped cutting. So we're talking about regional—

The Chair: He still cut yesterday.

Ms. Wendy Lill: Well, there are huge inequalities regionally in terms of education. So what do you do with that? Certainly we know all sorts of people suffer in that instance.

The Chair: Before you answer Wendy's question, this strobe lighting that's happening over your heads at the moment means that we actually have to go to the House and vote in about eight minutes, I think. There's a rumour of another vote after that, which makes it a little bit difficult even for us to predict whether we could come back again. I know Peter had a question and Madame Dalphond-Guiral had another petite question.

Ms. Madeleine Dalphond-Guiral: I don't know if it's a small one. Maybe it's not.

The Chair: I wonder if we could get really quick questions there and then give each of the panellists a chance to answer both Wendy's question and the other ones in their little 90-second wrap-up, as to whether this could all be done with a review to the Human Rights Act, with teeth in it in terms of audit potential or whether we need a whole bunch of new acts.

Mr. Peter Adams: I can get out in one minute.

The Chair: Peter.

Mr. Peter Adams: Madam Chair, I'd like to comment first. I think it's very unfortunate that the division between special education and health is a totally artificial one at the provincial level. It's a particular problem for us federally because we do have some influence through the health system, but we have less influence on the schools through the education system. That's a comment.

My question is for Henry Vlug. I apologize for being late. My question has to do with ASL. I remember when I realized that ASL was not simply a method of translation. I went to a lecture on the philosophical aspects of being deaf and of deafness. I was very impressed that here was this vital, living language.

My question is this, and it has to do with the services. With a language, normally the best people, the most eloquent people, are the people who are born with the language and grow up with it. There are a few exceptional people who can learn a language later and become as good, I suppose, as people who were born with it. My question has to do with the sheer availability of really good ASL speakers in the country to meet the needs we're discussing here. And using the medical interpreting service of the Western Institute as an example, are there people within the deaf community and outside the deaf community in sufficient numbers that we could remove this particular barrier?

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The Chair: Let's do that.

Mr. Henry Vlug (Interpretation): That's part of the problem, for sure. We can't just have the courts order providing interpreting services, because we have to find the interpreters somewhere. The Western Institute has been working with the community college to help with the interpreting program there, and all of those who graduated from that program should be qualified to do medical interpreting.

The interpreting program, though, is too small. It needs to be expanded. It's the same here in Ontario; I think there are two or three interpreting programs, and they closed one. There really are not enough interpreting programs around, and we need more of them.

It's not just for the interpretation itself. You can't just order interpreters, it's the developing of the interpreters as well as the education.

The Chair: I think Jamie had a comment.

Dr. Jamie MacDougall: If I could second that, the answer to it is there's a tremendous interest on the part of the population in learning sign language. I teach a course with 150 students, and they all learn sign language as part of the course and they can't get enough of it. And there are enough people in the deaf community who are native signers to provide the role model. All we have to do is come up with the model that will serve us across the country, and I second what Henry says. It's the first recommendation in my study, actually.

The Chair: Could you mention the potential technology?

Dr. Jamie MacDougall: Yes. I think with the broadband technology we have now, it is certainly being done in the United States and a few other places that you can provide interpretation in a remote situation. It won't work for everything, but certainly with broadband communication you can have interpreters almost anywhere in the country. I think given the way we're moving in Canada with hooking everybody up, and given the availability of funds.... For me, one of the main things that all the provinces wanted to move into was to explore this technology.

Mr. Peter Adams: Thank you.

The Chair: Madame.

[Translation]

Ms. Madeleine Dalphond-Guiral: Here is my question. It may be short, but difficult to answer.

In your presentation, Professor MacDougall, you did a quick review of the situation in various provinces. I understand that two provinces, Quebec and New Brunswick, have already met the requirements prior to the Supreme Court=s decision. Of course, what we are talking about is the financing of services for people who need them and are entitled to get them.

It might be said without offending anyone that the federal government has plenty of money. Do you not think that, in the circumstances, the federal should give that money to the provinces that are willing to exercise those responsibilities and have demonstrated that they could do it instead of establishing national education standards? You will easily understand that this is something to which Quebec is very much opposed and for many good reasons.

So this was a short question requiring a long answer.

[English]

Dr. Jamie MacDougall: There are two parts, and I don't know if we should do one thing instead of the other. But I will say I agree there should be a federal contribution directly to stimulate the growth of this interpreter service and I think it can be done under existing circumstances. I think we can do that without solving this other issue, which I think is beyond my scope to answer.

But to the first question, definitely I think there could be a federal presence, because that's training and so on. They can give money at the post-secondary level where the training would occur, yes.

The Chair: Do you have wrap-up advice for this committee before we run off to vote? What would be your recommendation for the next step? Should we wait and see what the La Forest commission says and hope they're going to do broad systemic powers in terms of audit and teeth? What would be your recommendations?

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Dr. Jamie MacDougall: If I could jump in, I guess I was really influenced by the Marshall case about fishing eels. When the Supreme Court clarified it, they said this case was all about Donald Marshall fishing for eel. I must say it influenced my view of Eldridge, and I feel that we should make a very specific action plan for implementing what we all know Eldridge means. Yes, we want other human rights, and there are many issues in disability, but I think both the provinces and the federal government have a common purpose here, and if we tried to bring forward a concrete agenda, I think we could make progress. That includes all provinces, I'm sure, from east to west.

Mr. David Baker: I have no difficulty with the recommendation that's just been made if the federal government has additional resources and is willing to make them available. I assume that the uptake would be substantial. But I would say that Chief Justice Dickson said we shouldn't have to repeat ourselves. The statement has been made. There is a mechanism through the Canada Health Act to make it clear to the provinces that the federal government considers accessibility to include accessibility to persons with disabilities in a whole range of areas, not just the very important area of sign language interpretation.

I've made my other comments, but I'll leave it there.

The Chair: Henry Vlug.

Mr. Henry Vlug (Interpretation): An important historical lesson in fact is that we can't fix it with one shot. It's not going to be a one-shot effort. The problem is too large, it's ongoing. We have to set up something that will work on it on a sustained basis.

Ms. Marcia Rioux: I think it's not enough to leave it to the La Forest commission and its findings. I agree that there should be a specific plan for this particular case, but I think it's much broader than that. I think it's really important that this committee and the federal government take responsibility for the Constitution of Canada and the enforcement of the Constitution of Canada. The fact that this kind of review was not done in the waiting period between the time the Constitution was proclaimed and the time it was put into effect should not deter the fact that Mr. Justice La Forest has now given us a set of human rights standards by which we have to look at equality.

So I think it's very much the responsibility of a committee such as this one to look at how the government departments and federal system are now actually ensuring that services are falling in line with this decision.

The Chair: I thank you all.

With the consent of the committee, would you like us to write to Mr. Rock to ask what he's going to do with Dr. MacDougall's recommendations in terms of policy options and what the response of the government would be? Obviously we were hoping to call all of these ministers again at various times, but should we begin with just a letter explaining a little bit about what happened today and asking the minister for his approach?

[Translation]

Ms. Madeleine Dalphond-Guiral: I think we might send a letter.

[English]

The Chair: Thank you all very much for coming. We hope we don't have to do this one again either and that we will have learned from this. And we hope that we, as this tiny, perfect committee, will be some small engine for moving this extremely important case forward. Thank you very much.

Wendy.

Ms. Wendy Lill: In terms of our strategy, I think we have heard several things here, but we certainly have to make sure there is a very strong voice from the deaf community on this. So I'd like it to be made clear to the minister that there are major problems, and that, as perceived by the deaf community, this area is still a very problem-fraught area. I would like this to be something with teeth, and it would be good if we could have some references.

Let's put him on the hotseat, quite frankly. We don't want just a mild-mannered letter.

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The Chair: I think we don't usually get “mild-mannered” from Bill. But we will circulate it for its heft, and we will then tune it up or whatever you need.

Thanks very much.

The meeting is adjourned.