Saskatchewan and the Gatekeeping Debate

• Author: Genevieve Leslie
• Profession: Investigator/facilitator
• Pages: 141-167

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chapter 5

SASKATCHEWAN AND

THE GATEKEEPING DEBATE

Genevie ve Leslie1

A. INTRODUCTION

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.

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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.

B. THE GOALS OF HUMA N RIGHTS LEGISLATION

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.