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 obstacles faced by individuals seeking protection

from discrimination. Typically, human rights statutes across Canada

give human rights commi ssions (HRCs) the responsibility of protect ing

human rights by means of complaint systems which can address indi-

vidual acts of discrimination. At the same time, these statutes require

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

tribunals or courts to which HRCs may refer complaints if they 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

solicitor.

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

chapter.

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genevieve leslie

decisions as they lter, divert, resolve, forward, or dismiss complaints.

Such decisions may be dicult because they involve complex facts,

new questions of law, or novel scenarios to which existing law has not

yet been applied. Becau se screening decisions ar e made at many points,

gatekeeping occurs at all steps in the complaint process from initial in-

take th rough investigation or mediation up to se ttlement, dismissa l, or

referral to a hearing.

The way in which the gatekeeping role is expressed in legislation

and then inter preted and implemented ca n have a profound eect on the

nature, extent, and availability of human rights protections. Moreover,

courts typically show great deference to commissions’ gatekeeping de-

cisions unless they are incorrect in law, procedurally unfair, or clearly

unreasonable. It is therefore important that decisions which can 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 The Saskatchewan Human Rights Code3 (Code) which fortied the gate-

keeping function of the Saskatchewan Human Rights Commission

(SHRC). Due to limited space, this chapter will address only the most

signicant changes. Few of the specic provisions discussed below are

completely unique in Canada. Where similar provisions exist 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 aspirational and pragmatic document. It proclaims the rights

and freedoms of all human beings, and articulates a vision which has

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.