Saskatchewan and the Gatekeeping Debate

AuthorGenevieve Leslie
chapter 5
Genevie ve Leslie1
The public inst itutions set up to defend human r ights can also, paradox-
ically, be the biggest obs tacles faced by in dividual s seeking protec tion
from discr iminat ion. Typically, human rig hts statutes ac ross Canada
give human r ights commi ssions (HRCs) the responsibility of protect ing
human rig hts by means of complaint systems wh ich can address indi-
vidual act s of discri mination. At t he same time, t hese statutes req uire
commissions to ac t as gatekeepers, to dec ide when complaints should be
accepted and how the y should be processed.2
HRCs do not have the authorit y to decide on the merits of compla ints
or award remedies, an d ndings of fact and law c an only be made by the
tribuna ls or courts to which HRCs may refer compla ints if the y do not
dispose of them i n other ways. HRCs ma ke many discre tionary scre ening
1 Genevieve L eslie is a former employee of t he Saskatchew an Human Right s
Commission (1983–2012). She has oc cupied a variety of p ositions, includi ng
investiga tor/facilitator, super visor of Public & Spec ial Progra ms, and sta
soli cito r.
2 This chapter is rest ricted to the gate keeping role played by hum an rights
commission s (HRCs), the government agenc ies responsible for proces sing
human rig hts complaints pr ior to a possible hearin g by a court or tribu nal.
In jurisd ictions with a “di rect access” model, H RCs either do not exis t or
do not routinely d eal with ind ividual complai nts; people who believe the y
have exper ienced discri mination ta ke their complai nts direct ly to a human
rights t ribunal. Huma n rights stat utes in those jur isdictions t herefore dif-
fer from the conve ntional human r ights statut es being considered i n this
chap ter.
genevieve leslie
decisions as t hey lter, divert , resolve, forward , or dismiss compla ints.
Such decisions may be d icult becau se they involve complex fac ts,
new questions of law, or novel scena rios to which exi sting law ha s not
yet been applied. Becau se screening decisions ar e made at many points,
gatekeeping occ urs at all s teps in the complai nt process from in itial in-
take th rough investigation or mediation up to se ttlement, dismissa l, or
referral to a hearing.
The way in which t he gatekeeping role is e xpressed in legi slation
and then inter preted and implemented ca n have a profound eect on the
nature, ex tent, and avai labilit y of human right s protections. Moreover,
courts t ypically show g reat deference to comm issions’ gatekee ping de-
cisions unles s they are incor rect in law, procedura lly unfa ir, or clearly
unreasonable. It is therefore import ant that dec isions which ca n aect
or even end human r ights claims be made i n ways which are consistent
with the bas ic nature and purpos es of human rights.
This chap ter proposes that the gatekeepin g function of HRCs be guid-
ed by the principles of fa irness, accessibil ity, transparency, account ability,
eciency, and economy. It will use as a c ase study the 2011 amendme nts
to T he Saskatchewan Human Rights Code3 (Code) which fortied t he gate-
keeping fu nction of the Sask atchewan Hum an Rights Com mission
(SHRC). Due to limited space, t his chapter w ill add ress only the most
signica nt changes. Few of the s pecic provisions discussed below are
completely unique in Ca nada. Wher e simila r provisions ex ist in other
human rig hts statutes, this c hapter’s comments may be applied to them
as well.
Modern human r ights statutes are g rounded in the Universal Declaration
of Human Rights4 (UDHR), which was adopted and procl aimed by the Gen-
eral Assembly of t he United Nations on 10 December 1948. The UDHR is
both an aspi rational an d pragmatic doc ument. It proclai ms the right s
and freedoms of a ll human be ings, and ar ticula tes a vision which ha s
3 The Saskatchewan Human Rights Code, SS 1979, c S-24.1, a s amended by SS
2011, c 17 [Code].
4 Universal Declaration of Human Rights, GA Res 217(II I), UNGAOR, 3d Sess,
Supp No 13, UN Doc A/180, (1948) 71.

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