COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Skakun,

 

2013 BCCA 94

Date: 20130306

Docket: CA040157

Between:

Regina

Respondent

 

And

Brian Skakun

Appellant

 

 

Before:

The Honourable Madam Justice Neilson

(In Chambers)

On appeal from: Supreme Court of British Columbia, July 24, 2012
(R. v. Skakun, 2012 BCSC 1103, Prince George Registry No. 30095)

Counsel for the Appellant:

J. Duncan

Counsel for the Respondent:

L. Ruzicka

Place and Date of Hearing:

Vancouver, British Columbia

January 16, 2013

Place and Date of Judgment:

Vancouver, British Columbia

March 6, 2013


 

Reasons for Judgment of the Honourable Madam Justice Neilson:

[1]             The appellant, Brian Skakun, seeks an order granting leave to appeal the order of a Supreme Court judge, pronounced July 24, 2012, dismissing the appeal of his conviction by a Provincial Court judge on May 24, 2011 of an offence contrary to s. 30.4 of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 (the “FOIPPA”). That provision states:

An employee, officer or director of a public body or an employee or associate of a service provider who has access, whether authorized or unauthorized, to personal information in the custody or control of a public body, must not disclose that information except as authorized under this Act.

[2]             If leave is granted, Mr. Skakun’s proposed ground of appeal is that the summary conviction appeal judge erred in law in confirming the trial judge’s conclusion that a municipal councillor is an “officer … of a public body” under s. 30.4.

Background

[3]             In 2005, Mr. Skakun was elected to hold the office of councillor of the City of Prince George (the “City”). He swore the required oath upon his election, which is defined as an “oath or solemn affirmation of office” in the Community Charter, S.B.C. 2003, c. 26, s. 120.

[4]             On January 8, 2008, the City administrator retained Ms. Heller, a lawyer, to assist the City with two harassment complaints made by employees. Ms. Heller conducted a confidential investigation and, on February 12, 2008, delivered a report that was sent to the administrative staff at the City in a letter marked “personal and confidential”.

[5]             On April 28, 2008, at a regular city council meeting the council moved into a closed session. Mr. Skakun moved a motion that the administration be directed to provide a descriptive report to council at a subsequent meeting summarizing the findings of the report.

[6]             On May 12, 2008, at a closed meeting of city council Mr. Skakun received a copy of the descriptive report he had requested. At trial, he testified that he then personally delivered it to “someone” at the CBC. On August 19, 2008, a copy of the report was posted on the CBC website.

[7]             Mr. Skakun was charged with breaching s. 30.4 of the FOIPPA. He advanced several defences at his trial, including that which forms the proposed ground of appeal. The trial judge rejected all of these, found Mr. Skakun was an officer of a public body under s. 30.4 of the FOIPPA, and convicted him. Mr. Skakun advanced the same defences on his summary conviction appeal. All were again rejected and his conviction was affirmed.

The Reasons for Judgment in the Courts Below

[8]             In addressing whether the Provincial Court judge had erred in finding Mr. Skakun was an officer of a public body under s. 30.4 of the FOIPPA, the summary conviction appeal judge quoted the entirety of the trial judge’s reasons on this point. He then stated:

[17]      In my view, the trial judge’s reasons were not deficient in any regard.  The lengthy excerpts from the trial judge’s reasons cited under this heading form only part of his detailed and comprehensive analysis.  The trial judge was aware of the issues in the case.  His reasons clearly set out the legal framework and the factual matrix as he found it.  The trial judge’s reasons fulfill the functions set out in R.E.M.:  they explain why the accused was acquitted or convicted; they provide public accountability for the decision by setting out why it was made; and they permit appellate review by articulating the factual findings and legal principles so that the parties can determine whether an appeal is warranted and, if so, on what grounds.

[18]      The reasons provide a clear explanation of why the trial judge found that the appellant was an “officer” as that term is used in s. 30.4 of the FOIPPA.  The reasons also provide a clear explanation of why the trial judge found that the “whistleblower” defence did not apply in this case.  In addition, the reasons of the trial judge provide a clear explanation of why the trial judge reached the decision to find the appellant guilty of the charge.

[9]             Although the proposed appeal is taken from the decision of the summary conviction appeal judge, his affirmation of the reasons of the trial judge require consideration of these as well.

[10]         In dealing with whether Mr. Skakun was an “officer” under the FOIPPA, the trial judge began by considering the provisions of the Community Charter that require city councillors to take an “oath or solemn affirmation of office”, and to keep in confidence information considered in council meetings that are lawfully closed to the public. As well, he considered s. 287 of the Local Government Act, R.S.B.C. 1996, c. 323, which defines a “municipal public officer” as a member of council for the purpose of creating limited statutory immunity from civil suits. The trial judge then observed that none of the cases cited by defence counsel were of assistance as none made reference to the provisions or purpose of the FOIPPA or similar legislation.

[11]         The trial judge next considered the applicable provisions of the FOIPPA that govern the unauthorized collection, use or disclosure of personal information by public bodies. He observed that the definition of “public body” in Schedule 1 of the FOIPPA includes “local government body”, which includes a “municipality” (such as the City); that the FOIPPA only permits the head of the public body to make disclosures of personal information; and that the confidential report contained personal information about a number of individuals. The trial judge held that the report had not left the possession of the public body when it was given to the city councillors for the purposes of a review at a closed meeting, but it did leave the possession of the City when it was given to the CBC. He also found that Mr. Skakun was not the head of a public body, and none of the processes specified in the FOIPPA regarding the release of public information had been followed in releasing the report.

[12]         The trial judge concluded that city councillors were officers of a public body for the purposes of the FOIPPA. Thus, since Mr. Skakun was an officer of the City with access to personal information in the possession of the public body, and had disclosed this without authorization, he was guilty.

Discussion

[13]         In seeking leave to appeal the decision of a summary conviction appeal judge under s. 124 of the Offence Act, R.S.B.C. 1996, c. 338, the applicant must show the issue to be raised is a question of law alone, that the issue is one of importance, and that there is sufficient merit to the appeal to warrant granting leave. The overriding consideration in exercising the discretion to grant or refuse leave is the interests of justice: R. v. Cai, 2008 BCCA 332 at para. 26, 258 B.C.A.C. 235; R. v. Winfield, 2009 YKCA 9 at para. 13, 79 M.V.R. (5th) 19.

[14]         It is common ground that the proposed ground of appeal, being a matter of statutory interpretation, raises a question of law alone.

[15]         As to its importance, there is no question the proposed ground of appeal is a matter of significance for Mr. Skakun. I am persuaded the determination of this issue may have some broader importance as well, as it will be the first time this Court will address the role of a municipal councillor in the context of the FOIPPA, and the result of an appeal may assist in defining the scope of that legislation as it pertains to municipal officers.

[16]         As to the merits, since I have decided to grant leave to appeal I will refrain from a detailed account of the parties’ arguments. Having considered these, I am satisfied Mr. Skakun’s position has sufficient merit to grant leave for two reasons.

[17]         First, the observations of the summary conviction appeal judge set out above at para. 8 give rise to a concern that he misapprehended the nature of this ground of appeal. Instead of examining the trial judge’s analysis of the legislation and the authorities in the context of Mr. Skakun’s arguments, and addressing whether the judge had erred in law in interpreting s. 30.4, it appears he mistakenly framed the issue as one of the adequacy of the trial judge’s reasons.

[18]         Second, Mr. Skakun’s submissions have persuaded me that there is an issue as to whether the summary conviction appeal judge’s review and application of the issues of statutory construction was sufficiently comprehensive, and adequately addressed nuances and potential inconsistencies in the legislation under consideration.

[19]         I conclude that, on balance, the interests of justice favour granting leave to appeal. I accordingly grant leave to appeal the question of whether the summary conviction appeal judge erred in law in confirming the trial judge’s conclusion that a municipal councillor is an “officer ... of a public body” under s. 30.4 of the FOIPPA.

“The Honourable Madam Justice Neilson”