LANG Committee Report

The decision by the Health Services Restructuring Commission to close Montfort Hospital in February 1997, as well as the ensuing legal battle, sparked a still ongoing debate on individual and collective rights to health care and social services in the language of the minority. The question was brought to the attention of the commissions that examined the future of health care in Canada (Kirby and Romanow).⁴ The Standing Committee on Official Languages asked four legal experts for opinions on the constitutional and legal bases of health care in the minority language. More specifically, we asked them to base their interpretation on four pieces of legislation we consider relevant to the question:

Constitution Act, 1867

It is important at the outset to review the distribution of powers between the two orders of government. As André Braën, law professor at the University of Ottawa, noted, the provincial governments received extensive powers in the health field under the Constitution Act, 1867. Apart from their jurisdiction over hospitals and asylums (s. 92(7)), they received constitutional powers in public health by virtue of the jurisdiction granted to the provinces under the Constitution over local or private matters (s. 92(16)). They also administer the provincial health insurance plans as a consequence of their power to regulate property and civil rights (s. 92(13)).⁵ While the provinces have primary responsibility for the delivery of health care services, the services under the jurisdiction of the Government of Canada must not be overlooked. The government intervenes in the health care sector by virtue of its jurisdiction over criminal law, quarantine, marine hospitals, interprovincial and international trade, patents and trademarks and its powers with respect to peace, order and good government. The federal government also has direct responsibilities with respect to ensuring health care services are available to certain groups, for example, primary care for the First Nations and Inuit communities and other services for veterans and personnel of the RCMP, the Correctional Service of Canada and the Armed Forces. In addition, we will see further along in this section that the Government of Canada supported the establishment of provincial public health care plans through its spending power. The Government of Canada played an important role in the evolution of the Canadian health care system, and this fact cannot be omitted in the subject under discussion.

The power to make laws with regard to the use of official languages has not been formally inscribed in sections 91 and 92 of the Constitutional Act, 1867. Consequently, it belongs to both levels of government as part of their legislative powers. The power to legislate on linguistic matters is an “ancillary” power to the exercise of legislative authority over a class of subjects assigned to Parliament or to provincial legislatures.⁶ As Professor Pierre Foucher of the University of Moncton noted, “The right to health care services in one’s own language is a provincial matter.”⁷

Since 1867, however, the spending power has been the central government’s principal means of exercising its authority in the health field. The Constitution Act, 1867 grants Parliament a virtually unlimited power to tax and spend. That power has enabled it to intervene in provincial jurisdictions such as health care and to try to lead the provinces to comply with uniform national standards, indeed even to influence the spirit of policies developed under the provinces’ jurisdiction.

The experts we consulted unanimously told us that Parliament may use its spending power to support the provincial governments in providing health care in both official languages. That option would be the safest legally, but more controversial politically. It could use its spending power to make direct payments to individuals, third parties or the provinces, as it is currently doing for education in minority communities, to improve social services and health care. Although it cannot directly regulate activities under provincial jurisdiction,⁸ the Government of Canada may set “conditions” as to how the money is to be spent.⁹ This procedure has never been challenged in court. Through its spending power, the Parliament of Canada could recognize a right to health care in the language of the linguistic minority in the Canada Health Act or the Official Languages Act, and its obligation, as is the case in education, would be to assist the provinces in carrying out that mission.

In Reference re Secession of Quebec,¹⁰ the Supreme Court of Canada stated that the Constitution of Canada is based on four principles: federalism, democracy, constitutionalism (the rule of law) and protection of minority rights.¹¹ In the view of Professor Martha Jackman, of the University of Ottawa, this last unwritten principle of the Constitution could be argued to demonstrate an obligation to provide services in both official languages. Professor Jackman acknowledged, however, that, to date, the courts have interpreted the unwritten principles set out in Reference re Secession of Quebec as mainly negative obligations, that is to say obligations which prevent the state from acting rather than compel it to act. However, a feature of the language rights set out in the Canadian Charter of Rights and Freedoms is that they impose obligations on governments to act. The unwritten principles stated in Reference re Secession of Quebec thus constitute a good starting point for emphasizing the obligation to provide services in both languages:

I do think it’s possible to interpret these provisions, or principles, as imposing a duty to act. The constitutional rights of linguistic minorities mean little if they do not imply some positive obligations.¹²

Canadian Charter of Rights and Freedoms

Although the right to instruction in the language of the official language minority is entrenched in the Canadian Charter of Rights and Freedoms, that right is generally recognized as not existing in the health field. However, witnesses appearing before the various commissions on health care in Canada (Kirby and Romanow) suggested that there were individual and collective rights to health care in the language of the patient.¹³ The experts’ views on this question are outlined below.

Section 7 guarantees that everyone has the right to life, liberty and security of the person and the right not to be deprived of those rights except in accordance with the principles of fundamental justice. In Professor Martha Jackman’s view, it could be argued that health care within the meaning of the Canada Health Act must be accessible in the language of the linguistic minority in order to meet the requirements of section 7.¹⁴

The Committee also asked whether failure to receive health care in one’s language could be argued as a ground of discrimination under section 15 of the Charter.¹⁵ In Eldridge v. British Columbia,¹⁶ the Supreme Court of Canada ruled that a deaf person is entitled to receive health services in a language that he can understand. Failure to provide translation services constituted discrimination under section 15 of the Charter. Does that right extend to the speakers of a minority language? Opinion was divided on the question. In Professor Jackman’s view, section 15 provides some very intriguing potential arguments that the Committee may wish to explore.¹⁷ Conversely, in Professor Pierre Foucher’s opinion, it is far from certain that the mother tongue is contemplated by section 15. If it were, only the mother tongue would be concerned. Secondly, a bilingual person would not benefit from this right. Thirdly, the right would accrue to every language, not just to official languages. Lastly, only translation services, not direct services, would be guaranteed.¹⁸

The legal experts also explored subsections 16(1) and (3) of the Charter. Subsection 16(1) guarantees equality of the official languages and subsection 16(3) represents what is called the advancement principle: it commits Parliament and the governments to advancing linguistic equality. To date, that principle has been interpreted so as not to prevent governments from passing measures that advance equality. However, it does not compel them to act. In Beaulac,¹⁹ the Supreme Court agreed that subsection 16(1), which entrenches linguistic equality, means that rights that are in existence at a given time must also be implemented. However, it is important to note that this does not require governments to add rights. In concrete terms, if the right to health care in one’s language were added in a statute, either the Official Languages Act or the Canada Health Act, subsections 16(1) and 16(3) would then have an impact. As a result of subsection 16(3), that act could not be challenged on the basis of other Charter provisions, and, under subsection 16(1), linguistic equality would impose positive obligations on governments to ensure that that right is implemented equally.

The experts examined subsection 20(1) of the Charter, which imposes an obligation on the federal government to provide services in both languages in the central offices and where there is significant demand. Where it offers services directly to certain groups (First Nations, Inuit communities, veterans, RCMP, Correctional Service and Canadian Armed Forces personnel), the health care which the federal government provides directly is included in the services contemplated by section 20.

With regard to the three territories, Tory Colbin, President of the Fédération des associations de juristes d’expression française de common law (FAJEFCL), contended that sections 16 and 20 of the Charter compelled the territorial and Canadian governments to provide health services to every French-speaking individual in the three territories where there is “significant demand” or where the “nature of the office” requires. However, in the case of the three territories, although the Government of Canada is responsible for health care, it is increasingly transferring that responsibility to the territorial governments. This devolution of responsibility has caused problems in the operation of the official languages in the health field and in various other fields as well. There is a grey area here that must be clarified.

RECOMMENDATION 1

The Committee calls on the Commissioner of Official Languages to investigate whether the Government of Canada is complying with the Official Languages Act when it is required to provide care directly to certain groups or communities or, again, whether it ensures its obligations are met when it transfers its responsibilities to third parties. We ask the Commissioner to report to the Committee following her investigation.

Would it be possible to amend the Charter to entrench a new right to health care in a person’s language? The experts agree that it would be very difficult to go ahead with such a constitutional amendment. Recognizing a right to health care in the minority language in the Constitution of Canada would require the unanimous consent of all partners in Confederation under Part V of the Constitution Act, 1982. However, there is nothing preventing the Parliament of Canada and a consenting province from resorting to the bilateral procedure of the amending formula to include such a right. The Committee can only hope that provinces will follow the example of New Brunswick on the road to linguistic equality. The Constitution Amendment Proclamation, 1993 (New Brunswick Act) constitutionally recognized the equality of New Brunswick’s two linguistic communities by amending section 16 of the Canadian Charter of Rights and Freedoms. New Brunswick is now required to protect and advance the status, rights and privileges of the two linguistic communities.

Canada Health Act

Third, the Committee asked experts to examine the Canada Health Act. In its present form, the Canada Health Act states five conditions that the provincial and territorial governments are required to meet in their public health insurance systems to be entitled to all federal contributions paid under the Canada Health and Social Transfer (CHST). Those five conditions are universality, comprehensiveness, portability, public administration and accessibility. The FCFAC, its members and a number of Francophone community associations have frequently requested that a sixth condition, linguistic duality, be added. A number of briefs²⁰ were submitted to the Committee on this matter requesting that Parliament include access to health care in both official languages in the Canada Health Act and make it a prerequisite to federal funding. The President of the Fédération des associations de juristes d’expression française de common law extended that argument even further: “The notion of a sixth principle of linguistic equality is essential, and perhaps even mandatory under the Constitution. Parliament has the power to attach language-related conditions to funding. I would even venture to say that it has the obligation to impose such conditions.”²¹

Health Canada has expressed reservations over the proposal. The Department believes that the approach adopted to date by the Government of Canada, that of supporting provincial governments and communities in their efforts to provide official language minority communities with better access to services in their language, is more appropriate than adding a sixth principle to the Act.²² Moreover, the legal experts consulted told Committee members that, for political reasons, it would be very difficult to amend the present Canada Health Act.²³

The Committee asked the experts to consider one of the principles stated in the Act, accessibility. According to that principle, the provinces must “provide for insured health services on uniform terms and conditions and on a basis that does not impede or preclude, either directly or indirectly whether by changes made to insured persons or otherwise, reasonable access to those services by insured persons.”²⁴ In Pierre Foucher’s view, it is not out of the question from the outset that the principle of accessibility includes access to health care in the patient’s language, if it is interpreted in accordance with the unwritten principle of protection for minorities. However, that interpretation has never been validated by the courts.

Official Languages Act

Fourth, the experts analyzed the Official Languages Act. Part VII expresses the Government of Canada’s commitment to enhancing the vitality of the communities and advancing the equality of the two languages as to their status and use. According to one school of thought, it is pointless to invoke Part VII because it is non-executory, that is to say it does not create an obligation.

The Minister of Intergovernmental Affairs, the Honourable Stéphane Dion, expressed his view when he appeared before our committee on 17 March 2003 to present the Canadian government’s Action Plan for Official Languages. In his view, Part VII is a political commitment and the action plan is the concrete expression of that commitment. According to the Minister, the wording of Part VII, in addition to being vague, directly involves the provinces in the implementation of a number of initiatives. Consequently, it is hard to conceive how the Government of Canada could be held responsible for provincial initiatives.²⁵

However, a recent Federal Court judgment has renewed debate on the matter. In his testimony on September 16, Professor Pierre Foucher referred to a Federal Court judgment rendered on September 8,²⁶ in which the Court granted an order requiring the Canadian Food Inspection Agency to comply with Part VII, which means that the Court found that that part of the Act has binding force and can lead to orders being made. If that is the case, it is quite easy to make a connection with the health issue. It would be reasonable to assume that the Government of Canada has an obligation under section 41 of the Act to do everything within its power to support and assist the development of health care in both languages. On October 14, the federal Department of Justice appealed this decision.

In addition, under paragraph 43(1)(d), the Minister of Canadian Heritage has an obligation to take measures on behalf of the Government of Canada to assist the provinces in providing health care in the minority language. It is now recognized that the Government of Canada spends in order to reinforce linguistic minorities’ access to education and services in their language. Part VII and paragraph 43(1)(d) are the expression of the federal government’s spending power which we explain above in this chapter. Consequently, some experts think it would be much easier and more effective, politically and from an implementation standpoint, to add a right to access to health care to the Official Languages Act rather than amend the Canada Health Act. Another possible option is ratification of a memorandum of understanding between Health Canada and the Department of Canadian Heritage (PCH) along the lines of what was signed in 1997 between the Treasury Board and PCH respecting the implementation of section 41 of the Official Languages Act. We return to this point in Chapter 3.

The debate initiated in recent years on the constitutional and legal bases of health care for the linguistic minorities is clearly not over. Nor can the Committee claim to have exhausted it. We hope we have shed new light on the question. As we shall see in the next chapter, a number of initiatives have already been implemented and progress is being made on this entire issue. However, those initiatives to improve access must not circumvent the right of linguistic minorities to receive care in their language. The Committee believes that a legal guarantee will have to be provided somewhere out of a concern for fairness and equality, but also to reinforce the initiatives currently being implemented in the field. This was the observation made by the community associations that we heard, and by hospital administrators working in the field. The discussion must continue, and that is why the Committee is asking the Commissioner of Official Languages to make this a priority in the coming years.

RECOMMENDATION 2

The Committees calls on the Commissioner of Official Languages to organize a national forum at which legal experts will publicly examine the best options for consolidating the legal bases of health services for linguistic minorities, including the possibility of adding a sixth principle, on linguistic duality, to the Canada Health Act. We request the Commissioner report to the Committee when she has completed her work.