Provincial privacy commissioner Elizabeth Denham is "perplexed" by Crown counsel's decision to take city councillor Brian Skakun to court when he leaked confidential documents to the media rather than turn to her office to deal with the issue.
Denham said Wednesday her office would have saved the parties involved both time and money had they turned to her to deal with the matter although parties can hire lawyers to represent them.
"We are an expert tribunal and we're here to resolve disputes between parties around privacy interests and privacy matters, that's what we're here to do," Denham said.
Skakun became the first politician in B.C. to be prosecuted and convicted under the Freedom of Information and Protection of Privacy Act when provincial court judge Ken Ball fined him $750 on May 24.
The case took up a dozen days of court time spread over five months and Skakun has said it's cost him more than $30,000 while the cost to the City was also in the tens of thousands of dollars in legal fees and lost time, although a final figure has not been made public.
"We were perplexed that the parties didn't come to our office in this case particularly when this is the first time the offence provision was being used," Denham said.
Denham stressed she did not want to speak to the specifics of the case because it's still before the court - Skakun has launched an appeal of the verdict - and noted she's been the commissioner for 10 months and the case predates her.
The office lacks the authority to fine an offender but "our order can be used in court if a party is pushing for an offence provision or a fine to be levied," Denham said. "So what I'm saying is in this case, the parties for whatever reason skipped our processes entirely and went straight to the court and that's highly unusual."
Denham said there is no record of Crown contacting her office about the matter.
Crown counsel Judith Doulis, who prosecuted the case, said the idea was given some thought in response to a proposal from Skakun's lawyer, Jon Duncan, but was turned down because the threshold for a guilty verdict in court is higher than for one of wrongdoing by the privacy commissioner.
Whereas the privacy commissioner's findings are based on a balance of probabilities, the judge hearing Skakun's case must determine whether he is guilty beyond a reasonable doubt. In layman's terms the court must be 90-per-cent sure the offence was committed under reasonable doubt whereas the balance of probabilities requires better than 50 per cent.
Consequently, the case would have to be tried in court anyway, Doulis said.
Duncan disagreed with Doulis. He said the offer to the Crown was to skip a full-fledged trial in favour of a sentencing hearing only if the privacy commissioner found Skakun culpable.
"In other words, there wouldn't have been that long trial," Duncan said. "They would've gone in there and indicated to the court that this is what the information the privacy commissioner has found and Mr. Skakun would say why he did it, which is what we did in that last day, and it would be done."
The trial ended with Skakun admitting he leaked the documents but maintaining he was acting as a "whistle blower" and therefore was in the right.
