Facts
Robin Blencoe was a minister of the British Columbia government for several years when Fran Yanor went public with a claim of sexual harassment and filed to the British Columbia Human Rights Council (later the British Columbia Human Rights Commission). Several months later two other women filed complaints for sexual harassment. Due to delays to the tribunal hearings the claims were not resolved for 30 months after the first filing in 1995. During this time Blencoe was subjected to vast media coverage that contributed to the ruin of his career, and to his and his family's social and psychological hardship. Blencoe challenged the delay of the Human Rights Commission in the British Columbia Supreme Court on the basis of denial of natural justice. The court dismissed his challenge. Blencoe appealed to the British Columbia Court of Appeal on the basis that the delay of the hearing for over 30 months was a violation of his right to "security of person" under s.7 of the Charter. The Court found in favour of Blencoe and ordered the charges against him to be stayed, holding that the delay stigmatized him and caused undue harm to him and his family.
Issue
- Did the delay in the tribunal hearing violate Blencoe's s.7 rights or the administrative law rule against undue delay?
- Does the Charter apply to Human Rights Commissions?
Decision
Appeal allowed, tribunal hearing to proceed.
Reasons
Bastarache, writing for the majority, held that in analyzing s.7 there are two steps:
- it must be determined if there has been a violation of life, liberty, or security of person,
- the violation must be shown to be contrary to the principles of fundamental justice.
As there was clearly no violation of "life" here, it was not discussed.
"Liberty" is broader than simply protection against physical restraint. “Liberty” is engaged where state compulsions or prohibitions affect important and fundamental life choices. This threshold was not passed in this case, as the delays did not prevent Blencoe from making fundamental life choices.
"Security of the person" is engaged where the state interferes with bodily integrity or there is serious state-imposed psychological stress. This protects both the physical and psychological security of the individual. There are two requirements for psychological stress (which was claimed in this case) to pass the threshold:
- it must be state-imposed, i.e. the hardship must be result from the state's actions; and
- it must be serious.
In this case, the state did not cause Blencoe's stress – the media did. Although the Commission might have created some stress, the media covering the story created the majority of it before the human rights complaints were filed. This means that the s. 7 threshold was not passed.
The court goes on to state that dignity, personal reputation and stigma are not separate rights protected by s. 7; although they are considered when looking for a s. 7 breach, they are not determinative – they are not self-standing rights protected by s. 7.
Bastarache dismissed the possibility that the trial was not fair as there was no evidence to suggest that Blencoe was not able to provide a full answer and defence. The court found that the harm only amounted to personal hardship and was not serious. On whether the delay violated natural justice by bringing the Human Rights Commission into disrepute, the court noted that many of the delays were contributed to by Blencoe or consented to by him. Consequently, the Commission was not brought into disrepute.
He concludes that the Charter definitely applies to the actions of the members of the Human Rights Commission. Although they perform a function that is judicial in nature, they are administrators who have their power granted solely by the will of the government. Therefore, simply because the Commission is not technically "controlled" by government does not mean that the actions of its members will not be subject to the Charter. Their authority is completely derived from the Human Rights Code, which is government legislation, and therefore they are carrying out actions relegated to them by the government – meaning that they are subject to the Charter.
LeBel, in the dissent, held that there was a violation of administrative law, but did not consider this to be a Charter issue.
Ratio
- In order to claim procedural fairness as protected by the Charter:
- there must be a violation of life, liberty, or security of person; and
- the violation must be shown to be contrary to the principles of fundamental justice.
- To violate “liberty”, the claimant must show that state compulsions or prohibitions have affected important and fundamental life choices.
- To violate “security of the person” the claimant must show that the state has interfered with his or her bodily integrity, or that there is serious state-imposed psychological stress.
- Dignity, personal reputation and stigma are not standalone rights protected by section 7.
- Human rights commissions are subject to the Charter.