Whose rights are being violated?

by MARGARET WENTE,
The Globe and Mail

Justice would have been speedier if Robin Blencoe had been accused of committing a criminal act -- theft, or embezzlement, or even rape. Either he or his accusers would be better off today. Either he would have cleared his name, or they would be vindicated.

But Mr. Blencoe, a former politician, was accused of sexual harassment. Neither he nor they have had their day in court, and it's possible they never will. That's because sexual harassment belongs to the mysterious twilight zone of human-rights tribunals, which operate according to a unique set of rules and timetables. And, now, the Supreme Court of Canada must decide whether the case will ever be heard at all.

Mr. Blencoe's problems began five years ago, in March of 1995, when he was a cabinet minister in Mike Harcourt's star-crossed NDP government. First came one allegation of sleazy sexual behaviour. Mr. Harcourt appointed a lawyer to investigate. Then several more complainants popped up and, without further ado, the B.C. premier decided Mr. Blencoe was radioactive. He fired him. After all, the NDP had been elected on a platform that included a promise to "prohibit sexual harassment."

Sexual impropriety is a peculiar type of crime. You don't have to be proved guilty to be punished. At 47, Mr. Blencoe found his political career was toast. As were any other job prospects he might once have entertained.

One complainant, Irene Schell, eventually went public with her charges. She said that Mr. Blencoe invited her to his hotel room in 1993 to discuss sports organization policy, and that he kissed her and hugged her several times. She said she rebuffed him. Another complainant told a far more lurid story to a local paper, but refused to be named. That's all we know about what he might have done.

A few months later, Ms. Schell and another woman, Andrea Willis, took their case to the B.C. Human Rights Commission. The wheels of justice ground slow. The commission took six months to decide to investigate, another six months to appoint an investigator, and another year to conduct an investigation and decide to hold a hearing, which was then scheduled for March of 1998 -- three years after the first complaint.

Meantime, Mr. Blencoe, his wife and his kids moved to Ontario to escape their notoriety. The story followed them. When he offered to coach his son's hockey team, he was turned down. Eventually, the family moved back to British Columbia, where he got a job working as an armed guard with the Loomis Armoured Car Service in Victoria.

In May of 1998, the B.C. Court of Appeal threw out the allegations because, it said, the lengthy delay had caused Mr. Blencoe prolonged humiliation and public degradation. Any criminal charge that old, it said, would have been thrown out. And it blasted the human-rights commission for sniffing out discrimination in every nook and cranny of the province, with a vigilance so great that its workload inevitably became impossible to manage.

Mr. Blencoe's case (which, I should add, his own lawyer did nothing to expedite) actually moved rather swiftly, as these things go. It took more than five years to dispatch the unfortunate Don Dutton, the UBC psychology professor who was found guilty of creating a sexualized environment because he entertained a graduate student for dinner. One human-rights lawyer told me she has cases before the Canadian Human

Rights Commission that are older than her kids. Her oldest kid is 12. The Blencoe case has opened such a huge loophole for both the innocent and the guilty alike that human-rights commissions across the country are scrambling to get control of their scandalous backlogs. No one knows for sure how many human-rights complaints in Canada are more than two years old, but they number in the thousands. If the Supreme Court upholds Mr. Blencoe, they could all be thrown out.

But backlogs and delays are just one of the built-in problems of human-rights commissions. They're plagued by second- and third-rate staff who are often poorly trained, badly paid and ideologically motivated. They're crippled by overprocessing, inflexibility and general administrative constipation. They are not bound by the usual rules of evidence or standards of proof. And they can't tell serious cases from silly ones. (Both the B.C. and Ontario human-rights commissions have been strangely transfixed by washroom rights for transsexuals.)

In their appeal to the Supreme Court, the nation's human-rights commissions are arguing that lengthy delays do not threaten personal liberty, and are only a minor nuisance for the accused. In other words, an

outstanding charge of sexual harassment is kind of like a parking ticket.

There's only one problem with that. No one, so far as I know, ever had his life ruined over a parking ticket.

Courtesy of the Globe and Mail
January 25, 2000