Saskatchewan's One Bright Shining Moment, At Least It Seemed So at the Time

AuthorKen Norman
ProfessionProfessor of Law at the University of Saskatchewan
chapter 3
Ken Norman 1
In August of 1979, The Sa skatchewan Human Rights Code2 (Code) came
into force. Its ambition wa s to be comprehensive and transfor mative in
novel ways. I propose to dis cuss this in some de tail. But rst, a l ittle back-
ground mig ht be helpful.
On the twentie th anniversary of t he Universal Declaration of Human
Rights3 (UDHR), the Canadian Ba r Review (Review) dedicated its December
1968 issue to The Internation al Year for Human Rights 1968.4 In his intro-
duction, editor JG Cas tel referred to the r ange of penal st atutory ant i-
discri mination prov isions across the cou ntry in the a reas of employ-
ment and accommod ation as being “often n arrow and quite ineectua l.”5
Further a long in that same number of the Rev iew, Walter Tarnopolosk y
advanced arg uments in favour of t he shift , lead by Ontario,6 to replace
these penal s tatutes with “ the velvet glove” on the ha nd of a human
rights comm ission whose prima ry tools were to be “concil iation and
1 Ken Norman is a pr ofessor of Law at the Univer sity of Saskatc hewan. This
chapter draw s in part on Ken Norm an, “Promotin g and Protecti ng Human
Rights: Sna kes and Ladders” (Spri ng 2013) Canadian Issu es 55.
2 SS 1978, c S-24 .1 [SHR Code].
3 GA Res 217A (III), UNGAOR, 3d Sess, Supp No 13, UN Doc. A/810, (1948) 71.
Adopted 10 December 1948.
4 (1968) 46 Can Ba r Rev.
5 JG Castel, “Intern ational Year for Human R ights 1968” (1968) 46 Can Bar
Rev 545.
6 Human R ights Code, RSO 1961-62, c 93.
ken norman
settlement.”7 Tarnopolsky’s metaphor of “the velvet g love” leaves liti-
gation of human rights complaint s as a tool to be utili zed by a human
rights comm ission if and only if the softer techniques come to impasse.
In short, the emph asis for human r ights commi ssions was to be on per-
suasion. Dan iel Hill, r st Director of the Ont ario commiss ion elaborated:
Modern day huma n rights legi slation is pred icated on the theor y
that the ac tions of prejudiced peo ple and their att itudes can be
changed an d inuenced by the process of re-educat ion, discussion,
and the present ation of dispass ionate socio-scient ic material s that
are used to ch allenge popula r myths and ste reotypes about pe ople.8
As Brian Howe and M alcolm Andrade put it:
The domina nt thinkin g behind the legislat ion [in Ontario and else-
where until t he mid-1970s] was that discr iminat ion is caused pri-
marily b y misguided person s in need of education, pers uasion, and
enlighte nment . . . . Every eort is made b y commission ocers to
bring the d isputing pa rties togethe r, encourage negotiat ion and
compromise, and ac hieve a sett lement. If concili ation should hap-
pen to fail , then the iron hand of law en forcement and adjudicat ion
through t ribunals an d the courts is used , but only as a last resort.9
Near the end of the 1970s I had occa sion to think long a nd hard about this
state of thi ngs in terms of the role of a huma n rights commission. I n the
early summer of 1978, I was ap pointed “chairman” of the Sask atchewan
Human Right s Commission. This position wa s attractive to me because
it seemed to oer a way forwa rd in terms of promot ing a cultu re of hu-
man right s as envisaged by the UDHR. A review of t he “velvet glove,” the
underlying a ssumption and a dec ade’s experience in its use by hu man
7 Walte r Surma Tarnopolsk y, “The Iron Hand in the Velvet Glove” (1968) 46
Can Bar Rev 565.
8 Da niel Hill, “Me rchants of Hate” in Human R elations (Toronto: Ontario
Human Rig hts Commission, Ju ne 1965), cited in Walter Surma Tarnopols ky,
Discriminati on and the Law in Canada (Toronto: Richard De B oo, 1982) at 32
9 R Brian Howe & Malcolm J Andr ade, “The Reputat ions of Human Right s
Commission s in Canada” (Fall/autom ne 1994) 9:2 CJLS/RCDS 1.

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