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

• Author: Ken Norman
• Profession: Professor of Law at the University of Saskatchewan
• Pages: 87-110

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chapter 3

SASKATCHEWAN’S

ONE BRIGHT SHINING MOMENT,

AT LEAST IT SEEMED SO AT THE TIME

Ken Norman 1

A. INTRODUCTION

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.

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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

B. A CHANCE TO DRAF T A TRANSFORMATIVE TEMP LATE

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

[Tarnopolsky].

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.