By: Cédric P. Lamarche
The Saskatchewan government has recently announced its plan to dissolve the province’s Human Rights Tribunal. According to Saskatchewan’s Justice Minister, Don Morgan, the change could occur as early as spring of 2010 if it is streamlined as planned.
The Saskatchewan Human Rights Tribunal is an independent, quasi-judicial provincial body that has the mandate of adjudicating human rights complaints brought under the province’s Human Rights Code. In a nutshell, the Tribunal conducts public hearings of human rights complaints that have been referred to the Tribunal by Saskatchewan’s Human Rights Commission. At a tribunal hearing, the parties are provided with an opportunity to make submissions and adduce evidence to support their case. At the conclusion of the hearing, the Tribunal issues a decision which is subject to appeal to the Queen’s Bench.
It should be noted that Saskatchewan’s Human Rights Tribunal is separate from Saskatchewan’s Human Rights Commission. Both administrative bodies are completely independent, have different mandates and have distinct administrative processes. The Commission’s role is to receive and investigate complaints. In some cases, the Commission will refer complaints to the Tribunal for adjudication.
According to the proposed dissolution of the Tribunal, the Commission will refer human rights complaints directly to the Queen’s Bench for adjudication. If implemented, the system would be unique to the province of Saskatchewan.
The decision stems from the governing party’s view that the Tribunal currently lacks judicial independence. Reformists are quick to point out that the Tribunal does not have security of tenure, financial security and does not benefit from administrative independence. They argue that members of the public cannot differentiate between the Commission and the Tribunal. This perception, according to the Saskatchewan Party, has compromised the public’s confidence in the system and needs to be remedied.
In addition to the benefits derived from the possible enhanced perception of administrative independence, there are consequences that will surely result from the dissolution of the Tribunal. The new system will result in the unnecessary expenditure of resources. For example, under the new system it will be more costly to involve judges in the decision process as opposed to less-expensive administrative adjudicators. Also, because the expertise of the members of the judiciary in the area of human rights is not comparable to that of the members of the Human Rights Tribunal, who are individuals selected on the basis of their expertise and interest in this discrete and specialized area of law, a specialized human rights section within the Queen’s Bench will have to be created in order to maintain public confidence in the system. This, of course, will be accompanied with additional costs for taxpayers. If implemented, the proposed change will also result in the elimination of an entire appeal layer. Currently, the Tribunal’s decisions can be appealed to the Queen’s Bench. This appeal option will no longer be available if the Queen’s Bench becomes the first place of hearing. Accordingly, the elimination of this appeal option may have the consequence of dissuading individuals from pushing forward with their human rights complaints.
One must ponder whether enhancing the public’s perception of independence is required and whether it will outweigh the many costs associated with the dissolution of the Tribunal. The Saskatchewan Party says yes. However, the majority government’s political motivations behind the decision are suspect. The proposed change comes shortly after a Tribunal decision that found that a marriage commissioner had discriminated against a same-sex couple by declining to marry them. This decision is contrary to proposed legislation by the Saskatchewan government which would allow marriage commissioners to decline to perform wedding ceremonies for gay couples. For obvious reasons, the Tribunal’s decision did not bode well with the governing center-right Saskatchewan Party. Placing more control in the hands of government appointed judges would certainly aid in achieving “right-minded” results.
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By: Cédric P. Lamarche